Adult Businesses Reboot Federal Suits Challenging Restrictive Zoning Plan
After lying dormant for over a decade pending similar litigation in state courts, three lawsuits on behalf of a number of gentlemen's clubs were joined recently by another suit filed by a bookstore with viewing booths to challenge the constitutionality of the 2001 zoning ordinance.
May 07, 2018 at 06:14 PM
6 minute read
Photo Credit: Shutterstock.com
A quartet of lawsuits—three of which have been sitting dormant on the federal docket for over a decade—are challenging a nearly 17-year-old rezoning plan they claim will chill protected speech and help to hasten the years-long shrinking of possible locations adult-oriented businesses can operate .
Their arguments are simple, even if the issue isn't, as the years of litigation in state courts that preceded the reanimation of the current federal suits proves. They contend that should a 2001 rezoning law be allowed to go forward, the restrictions on where strip clubs, adult book stores, and other erotic-themed businesses will be so onerous that the only foreseeable outcome will be their closing, extinguishing a constitutionally protected form of expression in the five boroughs.
A spokesman for New York City Mayor Bill de Blasio's Law Department made it clear the current administration will continue to support the Mayor Rudy Giuliani-era law, which has never been actually enforced thanks to court-ordered stays, being enjoined during the litigation process, or held off by agreements between the plaintiffs and the city, as was most recently the case.
“The city stands by its adult zoning regulations, which were found to be constitutional by the state's highest court,” the spokesman said.
Three of the suits now at issue have been administratively closed pending the outcome of state litigation against the 2001 rezoning plan. The state suits bounced back and forth between state Supreme Court in Manhattan and the Court of Appeals, before ascending all the way to the U.S. Supreme Court, where a writ of certiorari was denied in February over the state high court's 2017 finding that the city's ordinance was, in fact, constitutionally sound.
Now, the three sidelined suits—all on behalf of adult live-entertainment venues or cabarets that refer to themselves as gentlemen's clubs—are joined by a new suit on behalf of bookstores with viewing booths that would allegedly be negatively impacted should the zoning change go into effect.
In their initial complaints before U.S. District Judge William H. Pauley III of the Southern District of New York, the plaintiffs appear to be angling towards an interesting, if unresolved, First Amendment issue. In the defining case in this area remains the U.S. Supreme Court's 2002 City of Los Angeles v. Alameda Books. What the plaintiffs want Pauley to look at is Justice Anthony Kennedy's concurring opinion that articulated what the plaintiffs appear to argue is a critical threshold issue in such cases.
The decision itself upheld Los Angeles zoning laws banning adult establishments within 1,000 feet of each other. At issue were two book stores in the same building that sued after being fined in 1995. The city's ordinance was based on the secondary effect of such adult establishments in high volumes, as found in a 1977 study it conducted.
In concurring with the majority, Kennedy upheld the ability of governments to regulate speech over secondary concerns. But the measures needed to be specifically targeted towards remedying the undesirable secondary effects—crime, drugs, etc.—and not simply because government officials find constitutionally protected erotic speech undesirable. But Kennedy went a step further: he said LA's zoning rules were permissible specifically because they wouldn't also serve in squashing protected speech. In the case at hand, Kennedy said it was critical what would occur to the two stores at the heart of the case.
“The claim, therefore, must be that this ordinance will cause two businesses to split rather than one to close, that the quantity of speech will be substantially undiminished, and that total secondary effects will be significantly reduced,” Kennedy stated. “This must be the rationale of a dispersal statute.”
In the new amended federal complaints, the plaintiffs argue that New York City has essentially admitted this is the purpose of the 2001 rezoning—and has been the reality of land changes in the ensuing years.
The 2001 law removed distinguishing language from previous regulations, lumping all locations with adult material present, regardless of how much of the establishment was dedicated to adult material or exhibition. The city allegedly didn't look into whether the previous regulation regime in place prior to the 2001 zoning changes had any negative public impact.
“In fact, the city actually conceded at public hearings regarding the 2001 amendments that, according to the Manhattan community boards in locations where 40 percent of existing adult businesses were located, 'there [we]re no significant secondary impacts from the remaining adult businesses in the[se] neighborhoods,'” one of the amended complaints stated.
In the 16 years since, they still haven't, according to the plaintiffs. And while the city did do a 1994 study ahead of its first attempt at zoning adult businesses, the plaintiffs contend that it was inconclusive on critical aspects of the secondary impact of those businesses.
The impact of city zoning moves since, the plaintiffs contend, has created a situation where so little potential locations for an adult establishment to open or move to creates a chilling effect on protected speech. In 2001, 57 adult eating or drinking establishments and 44 adult theaters were in existence. Today, there are no more than 20 total in the broader category of gentlemen's clubs left.
“The city's zoning regulations have contributed significantly to this dramatic decline in the number and availability of adult entertainment establishments,” a complaint by one such club stated.
If the 2001 law was allowed to go forward, with its 500-foot restrictions between schools, religious institutions and other adult establishments, as well as restrictions to only a handful of acceptable zones, the result would be to “severely and unconstitutionally limit the legally permissible and constitutionally-countable” adult entertainment in the city.
“In sum, the public's access to this form of adult entertainment will not 'fare well' if the 2001 amendments are allowed to take effect because … there would be no reasonable opportunity for all of them to re-establish at new locations,” according to one of the complaints.
The plaintiffs said they will file a motion for preliminary injunction against the city by May 23, in the hopes of holding off the zoning laws for at least a little longer.
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