The Real Deal New York

GIRLS GIRLS GIRLS: City loses zoning fight with strip clubs, porn shops

Businesses argued they no longer have a predominant sexual focus
By Tess Hofmann | July 23, 2015 09:30AM

A living, breathing document indeed it is.

Citing freedom of speech and conduct guaranteed by the U.S. Constitution, a New York appeals court struck down Tuesday the city’s attempt to justify rules that would more broadly define “adult establishment” and make it harder for adult bookstores and gentlemen’s clubs to ply their trades in certain areas.

The New York Appellate Division First Department affirmed a lower court’s decision, finding that the city did not meet its burden to show that adult establishments, as it wanted them defined, harmed surrounding areas in terms of decreased property values, increased crime rates, or “erosion of community character.”

A 1994 study by the Department of City Planning identified “strong concerns about the negative impacts” of adult businesses in the areas they operated. The city had cited the study to justify its ban on these businesses in residential districts as well as many manufacturing and commercial districts. But it then went a step further by defining “adult establishments” very tightly.

Adult establishments, the city said at the time, would mean any business where 40 percent or more of the floor area or stock was dedicated to adult use.

This led strip clubs and peep-booth parlors to reconfigure their spaces in a way that would comply with the requirements and prevent them from being booted out.

The city tried to strike back with a new set of rules, in 2001, changing the definition of “adult establishment” yet again to combat what it saw as sham compliance.

The new definition was broader. A business which “regularly features in any portion” live performances characterized by an emphasis on “specified anatomical areas,” would be encompassed.

But this broader definition rubbed some of the businesses the wrong way. In 2002, a group of them sued, claiming there was no evidence to show that this new breed of “60/40″ adult establishments — those with less than 40 percent of the space being used for adult purposes — would hurt surrounding neighborhoods.

“If you have non-adult videos and DVDs for sale, if you hold yourself out as offering different types of things for sale, you’re really a different animal than what the city studied,” said Erica Dubno, an attorney representing the plaintiffs. “They’re not the same as the places that existed 21 years ago.”

The court agreed. “The City assumes that because the 60/40 clubs regularly feature topless dancing, this automatically means that they retain a predominant sexual focus,” Justice Barbara Kapnick wrote in her decision. “However, there is nothing in the prior related decisions that mandates that conclusion.”

Because the businesses obtained injunctions against the city beginning in 2001, the bans have not yet been enforced. Tuesday’s decision is another setback for the city, which could still take the case to the Court of Appeals.

“The case has been up and down the judicial ladder several times,” said Edward Rudofsky, another attorney for the plaintiffs.

Counsel for the city did not respond to a request for comment.

In 2013, The Real Deal found that a city law aimed at curbing erotic massage parlors mostly burdens health clubs.