Ruling Is Big Win for N.Y. Adult Businesses

Jul 21, 2015 3:00 PM PST

NEW YORK — In a key victory for adult businesses, a New York state appeals court in Manhattan today affirmed a previous ruling that held unconstitutional amendments made 14 years ago to New York City’s adult-use zoning regulation for strip clubs and adult video and book stores.

The amendments, which were never put into effect because of several temporary restraining orders, would have been devastating for Manhattan’s adult businesses if put into effect — likely putting every one of them out of business.

Today, the long-running battle came to a halt.

New York Supreme Court’s Appellate Division, 3-2, said that changes to the city ordinance for adult businesses made in 2001 were insufficiently narrow and violated the First Amendment. The court permanently enjoined New York City from enforcing the amendments.

New York City’s 2001 amendments for adult businesses addressed the concern that some were subverting existing law by superficially complying with the municipality’s “60/40” rule but retaining their predominant, ongoing focus on sexually explicit materials or activities.

The 60/40 rule has been interpreted to prohibit the operation of a businesses in residential and other neighborhoods if more than 40 percent of its material or floor space was dedicated to adult content.

With respect to strip clubs, the 2001 amendments removed “substantial portion” from the definition of “adult establishment,” providing instead that a venue that “regularly features in any portion of such establishment” live performances characterized by an emphasis on “specified anatomical areas” or “specified sexual activities” and excluded or restricted minors, was covered, regardless of whether it limited those performances to less than 40 percent of its floor area.

The court, however, said that New York City didn’t meet its burden in proving the amendments legality to the plaintiffs — Visions Video, Mixed Emotions, Stringfellows of New York and Fair Theater.

In their decision, appeals court justices said that New York City assumed that because the 60/40 clubs regularly featured topless dancing automatically means that they retain a predominant sexual focus and that there was no evidence in the record that showed adult stores’ nonadult sections were difficult to access.

The justices also looked at signage and found little evidence that the plantiffs’ marquees were larger than nonadult businesses.

The court noted that changes were made to the clubs by reducing the floor space devoted to such entertainment removed the predominant sexual focus linked to adverse secondary effects. Some businesses added amenities to the establishment, such as restaurants, pool tables or sports lounges, or operate as live entertainment venues where bands perform.

“The 2001 amendments were of significant consequence,” Erica T. Dubno of Fahringer & Dubno told XBIZ. Dubno was one of the attorneys who represented the plaintiffs.

“If it had gone into effect, literally all of the gentlemen’s clubs would have been forced to close.”

Dubno said that more than 70 adult businesses would have been affected if the 2001 amendments had gone into effect, but that plaintiffs were able to win a patchwork of temporary restraining orders to hold the city at bay.

“The dark cloud has now disappeared for these businesses,” Dubno said. “For all these years, there has been uncertainty about how this would all work out.”

New York City officials said that they are reviewing the ruling.

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