NYC Wins Another Round in Challenges to Adult Zoning Resolution

Following up on his recent decision rejecting a constitutional challenge to the application of New York City’s adult zoning resolution to various bookstores that sell sexually-orientation items, New York Supreme Court Justice Louis York has similarly rejected a constitutional challenge to the application of the resolution to various topless night clubs and bars. The April 14 ruling in Ten’s Cabaret, Inc. v. City of New York, No. 121197/02, published in the New York Law Journal on April 19, went a step further than the prior decision, holding in effect that any establishment that regularly allows topless dancing and entertainment is an adult establishment, regardless of what percentage of space or time the establishment actually devotes to such activity.

Being labeled as an "adult establishment" has severe consequences for a business in New York City, because the zoning resolution in question relegates such businesses to a handful of remote non-residential areas within the city limits, situated for away from potential customers and relatively inaccessible to the casually curious. In regulations issued shortly after the resolution went into effect, the City Planning Commission appeared to establish a "safe harbor" for businesses with a rule that those devoting less than 40% of their premises to adult uses could escape being labeled as an adult establishment subject to the resolution. After many businesses physically reconfigured their premises and their inventory to avoid the resolution, the city raised the argument of sham compliance and sought to shut down many 60/40 establishments. A group of such establishments banded together in this lawsuit to attack the constitutionality of the resolution in its application to 60/40 businesses.

As in the prior case, Justice York was ruling on remand from a Court of Appeals decision that placed a light burden on the city to justify moving against what it contends are "adult" establishments. The city successfully argued to the high court that many businesses which had altered their premises in an attempt to comply with a 60/40 rule of thumb were actually engaged in "sham compliance" because they remained heavily devoted to providing adult goods and services and thus remained, essentially, adult business which should be found subject to the resolution.

Justice York wrote that "the question formulated by the majority opinion of the Court of Appeals is whether the predominant ongoing activity is devoted to adult interests." According to York, the mandate from the high court is to determine whether "their predominant focus continues to be topless dancing, even though the topless dancing may take in less than 40 percent of the club’s accessible floor space."

"Merely because defendants have introduced evidence that some topless clubs may not have an ongoing focus on adult activities," wrote York, "does not defeat the pattern established by defendant of topless clubs having an ongoing focus of adult activities. . . Although the plaintiffs have devoted quite a substantial portion of their brief to proving that these reconstituted 60/40 clubs no longer resemble their pre-1995 forbears, this argument is entirely irrelevant and will be accord no weight," he continued. "The remitter to the trial court posed the question: did these 60/40 clubs so change that their dominant ongoing focus was no longer on sexual matters so that the studies establishing the 1995 amendments no longer applied to them? The Court of Appeals held that the City did not have to engage in empirical studies or to establish the secondary effects of 60/40 clubs and bars to satisfy its burden."

Thus, the court found that the zoning resolution was constitutional in its application to such clubs and bars. Of course, in any individual case, the city would have to prove that the establishment in question had engaged in "sham compliance," but it appears from the opinion that any club providing such forms of entertainment on a regular basis was likely to be found in violation of the zoning resolution and subject to closure.