New York City has always been a pivotal location for any cultural movement, and the adult industry has certainly not been an exception. The city’s famous 42nd Street red light district was a sort of Mecca to the sexual counterculture of the 1960s and 1970s, and while other cities like San Francisco or Las Vegas have claimed their own place in all things related to free love and general sinful fun, the truth is New York’s distinctive adult flavor is irreplaceable.
Which is why it’s so crucial for the industry that a state appellate court refused to allow NYC to enact a 2001 zoning rule that threatened to make extinct most sex-oriented businesses in Gotham. This may finally be putting an end to a 13-year-long lawsuit that has already pushed a number of adult establishments out of business.
This whole ordeal started with a 1994 New York City Department of City Planning (DCP) study, suggesting that adult establishments concentrated in a particular area “tend to produce negative secondary effects such as increased crime, decreased property values, reduced commercial activities, and erosion of community character.” What was named at the time the “Adult Entertainment Study” inspired a zoning amendment that banned any X-rated businesses from all residential areas and a big number of commercial and manufacturing districts. They also had to be at least 500 feet away from any houses of worship, schools and daycare centers.
But the city’s original definition of “adult establishment” was significantly vague, and it wasn’t very clear how this amendment would be regulated. The DCP tried to address that by ruling that any commercial establishment with at least 40 percent of its accessible floor area or stock used for adult purposes qualified as one.
Many establishments restructured their whole businesses around the 60/40 formula, making sure they wouldn’t pass the legal threshold, in an effort to avoid being shut down. After a couple of years, though, the city began to bring nuisance proceedings against the strip clubs, adult bookstores and movie theaters that were believed to be in technical compliance with the 60/40 formula, but were using their non-adult inventory as a “sham.”
Basically, the 2001 amendments removed the originally ambiguous “substantial portion” flag from the “adult establishment” definition, and brought tougher restrictions on all of them. Any strip club that regularly featured live performances with an emphasis on “specified anatomical areas” or “specified sexual activities” (which is, you know, pretty much every single one of them) could be closed, regardless of whether it limited those performances to less than 40 percent of its floor area or not. They could also completely disregard a business’ non-adult material if they put the adult products near the front of the store, or if they had their cash register in the adult section, or even if they had signage for their adult material that was larger than the non-adult one.
The council approved the amendments, but the threat of bankrupting New York’s sex industry led several businesses to sue the city in 2002, arguing the implementation of these would be a violation of the Constitution’s First Amendment.
For the past 13 years both sides have been fighting over this same argument. The last instance had been in 2012, when Supreme Court New York County Judge, Louis York, concluded the zoning rule was unconstitutional. The city, however, appealed to change that once again.
To determine whether the allegedly changed businesses were still “adult in character”, the court focused on four factors that could force an establishment to close: 1) a predominant, ongoing focus on adult materials; 2) whether minors were allowed into the store; 3) if the signage strongly advertised adult content; and 4) if the layouts made it difficult to access non-adult material.
“The city assumes that because the 60/40 clubs regularly feature topless dancing, this automatically means that they retain a predominant sexual focus,” said Justice Barbara Kapnick, one of most recent majority voters in favor of the plaintiffs. “However, there is nothing in the prior related decisions that mandates that conclusion.”
It’s true that the majority of these establishments did have peep booths that promoted sexually explicit material, but this is only one of the four relevant factors. The court recognized that all the other considerations had changed significantly since their pre-zoning amendment days, and there was no evidence to support the 2001 claims. The two judges in favor of the city council, Richard T. Andrias and Leland G. DeGrasse, filed a dissent that questioned the court’s process.
“While the dissent takes issue with our ‘mechanical and mathematical approach’ to weighing the enumerated factors, in fact, what we have attempted to do, is separately and fully analyze each of the characteristics that this court suggested should be considered in making this determination,” Kapnick added in a footnote.
Counting with a 3-2 majority, the New York Supreme Court’s Appellate Division upheld the 2012 decision, citing the 2001 amendments were insufficiently narrow, and therefore were in violation of the free speech rights. Unless the city provides real evidence that these businesses are actually harming the community’s quality of life, the result will keep on favoring the plaintiffs.
“Obviously, we’re very pleased with the decision,” said Erica Dubno, one of the attorneys representing the coalition of theaters, video and book stores. “We believe that it was well reasoned and carefully considered the issues.”
More than 70 businesses, Dubno claims, would have been forced to close had those 2001 amendments been approved.
City officials have said that they are reviewing the ruling, but at least for the time being, New York is looking to stay as beautifully dirty as God intended.
You can read the entire court document here.