A Queens Sex Crimes Lawyer said that, the “adult” establishments at the center of this controversy offer various forms of sexual expression. These businesses include bookstores, theaters, stores dealing in videotaped material and places of live entertainment. In 1965, there were only nine such establishments in New York City. That figure has fluctuated over the past 30 years, but the last decade has experienced a steady growth in the industry, with sections of Manhattan and Queens showing the greatest development. By 1993, there were 177 adult establishments operating in New York City: 107 in Manhattan, 44 in Queens, 15 in Brooklyn, eight in the Bronx and three in Staten Island.
A Queens Criminal Lawyer said that, on February 27, 1996, the Amsterdam Video plaintiffs, consisting of more than 100 owners and operators of adult establishments in the City, and the plaintiffs, consisting of four patrons of such establishments, commenced actions in Supreme Court, New York County, against the City and related officials. Plaintiffs alleged that the Amended Zoning Resolution deprived them of their right to free expression protected by article I, § 8 of the New York State Constitution and the First Amendment to the United States Constitution. Plaintiffs sought relief in the form of a judgment declaring the zoning amendments unconstitutional and enjoining their enforcement.
Defendants removed the case to the United States District Court for the Southern District of New York, but on plaintiffs’ application the court remanded plaintiffs’ causes of action grounded in the State Constitution, retaining jurisdiction over the Federal claims. Subsequently, a cabaret featuring topless dancers separately challenged the constitutionality of the amendments and sought injunctive relief. Supreme Court then granted the intervention motions of TSBID, the Center for Community Interest, and 45 other community groups, business organizations and local elected officials and consolidated the actions for hearing.
A Queens Sex Crime Lawyer said that, on August 26, 1996, defendants moved for summary judgment. The Amsterdam Video and plaintiffs cross-moved for summary judgment; the plaintiffs opposed defendants’ motions but declined to cross-move for summary judgment on the theory that the case involved material factual disputes warranting a trial. Before issuing its decision, Supreme Court ordered additional discovery, in particular directing defendants to answer interrogatories served by the plaintiffs, to provide maps to demonstrate the areas where adult uses would be permitted when encumbered areas were eliminated, and to produce for a deposition a person familiar with the DCP’s calculation of the total number of alternative sites that would be available to relocated adult establishments under the amendments. A voluminous record of pleadings, affidavits, exhibits and briefs totaling more than 10,000 pages was before the court on the various summary judgment motions.
On October 23, 1996, Supreme Court granted defendants’ motions for summary judgment and declared that “the Amended Zoning Resolution does not violate plaintiffs’ rights of freedom of expression guaranteed under the State Constitution, and is, therefore, constitutional”. A Queens Criminal Lawyer said that, the DCP also sought to identify the specific adverse secondary effects caused by adult establishments in New York City itself. To accomplish that goal, the DCP both conducted its own independent analysis of six selected areas in the City and examined other earlier studies of the City’s adult uses. Among the other materials examined were a 1977 report by the City Planning Commission (CPC); a 1983 Annual Report of the Mayor’s Office of Midtown Enforcement; a 1993 study conducted by the Chelsea Action Coalition and Manhattan Community Board 4; testimony at an October 1993 public hearing before the Task Force on the Regulation of Sex -Related Businesses; an April 1994 Times Square Business Improvement District (TSBID) study; and a 1993 survey compiling media accounts and complaint correspondence to City agencies.
A Queens Sex Crime Lawyer said that, the Zoning Resolution of the City of New York, adopted on December 15, 1960, regulates commercial establishments in the City. Historically, the Resolution did not distinguish between adult establishments and other commercial ventures. Like other businesses, adult enterprises simply had to satisfy the requirements for the particular “use group” into which they were classified. Consequently, adult uses were permitted in most of the City’s commercial and manufacturing districts, which frequently also allowed residential development or were mapped close to residential districts.
Prompted by the findings and final recommendation of the DCP study that adult establishments should be regulated differently from other commercial establishments because of their unique negative effects, the CPC directed the DCP in November of 1994 to draft a set of adult-use zoning restrictions. Concomitantly, the City Council imposed a one-year moratorium on the creation or enlargement of adult-use establishments.
The issue in this case is whether the City’s zoning amendments are purposefully directed at controlling the content of the message conveyed through adult businesses or are instead aimed at an entirely separate societal goal.
The court concludes that on this record the Supreme Court correctly granted summary judgment declaring that the challenged ordinance does not violate plaintiffs’ constitutional rights of free expression.
This Court has long recognized the considerable authority of municipalities to implement zoning plans and programs to meet the increasing encroachments of urbanization on the quality of their residents’ lives. Because they are legislative enactments, these land-use regulations generally enjoy a strong presumption of constitutionality as valid exercises of the State’s police power to advance the public health, safety and welfare.
Municipal zoning authority is not, however, completely unfettered. Ordinances such as the one challenged here that aim to curb “adult” uses implicate speech or conduct that is protected by the First Amendment and by article I, § 8 of the New York State Constitution. Consequently, in weighing the validity of such zoning regulations, courts must consider the intertwined constitutional values of free expression.
The Federal constitutional analysis requires examination of the ordinance’s “predominant purpose”. In the context of these facts, however, the difference in verbiage does not significantly affect the outcome, since it is apparent from the amendments’ legislative history that ameliorating the negative social consequences of proliferating adult uses was the City’s only goal.
To Be Cont….
Before enacting the Resolution, the City Council assembled an extensive legislative record connecting adult establishments and negative secondary effects, including numerous studies on the effects of adult establishments both within and without New York City. One of these studies, prepared by the TSBID, focused on the impact of adult uses on property values and the incidence of sex crimes in the Times Square area, in the heart of Manhattan. The TSBID identified four study blocks (those containing at least one adult enterprise) and four neighboring control blocks (those with no sex-related establishments), and then compared those data with similar statistics for the District as a whole, the wider Times Square area, all of Manhattan, and all of New York City. The data included sex crime statistics, property valuations and 53 formal interviews with business and real estate enterprises.
The study concluded that “the rate of increase of the total actual assessed values of the Eighth Avenue Study Blocks was less than the rate of increase for the Control Blocks along Ninth Avenue. To a lesser extent, the rate of increase of the actual total assessed value of the 42nd Street Study Block is less than that of the 42nd Street Control Block.” It also determined that “within the study blocks, non-adult businesses with adult establishments nearby showed a deflated rate of property value growth, compared to the adult establishments themselves which increased in value at a higher rate.” Similarly, the underlying data showed a correlation between a concentration of adult establishments and increased crime. Over the five years preceding the study, for example, police statistics showed that there was an estimated 54% decrease in criminal crime in the Times Square area, a decrease which was paralleled by a decrease in adult establishments. The study also found significant “patterns,” notably that there were many more criminal complaints on the study blocks than the control blocks and that the heaviest incidence of prostitution arrests occurred in the three block study area of dense concentration of adult establishments. No drug crime in the area.
The Chelsea Action Coalition and Manhattan Community Board 4 prepared a second study of the effects that sex-related businesses have on other businesses in the Chelsea section of Manhattan. The study incorporated a survey of 100 Chelsea businesses located near triple-X video stores and peep shows in the neighborhood. A majority of those surveyed indicated that adult uses had a negative impact on their businesses and on the economic viability of the community as a whole.
The DCP independently surveyed six study and control areas–two in Manhattan, and one in each of the remaining boroughs. More than 80% of the real estate brokers responding to the survey reported that an adult establishment tends to depress the market value of property within 500 feet; similarly, community organizations overwhelmingly reported their perceptions that adult businesses negatively affect the community. Although the DCP acknowledged that its analysis of the hard data regarding the relationship between adult uses and urban ills did not yield conclusive results, a reading of its report as a whole indicates that the negative perception of adult enterprises held by the business community and the public itself results in disinvestment, with the concomitant deterioration in the social and economic well-being of the surrounding area.
Finally, the City additionally reviewed conclusions reached by city councils and town boards throughout the country. A 1984 study conducted for the City of Indianapolis, for example, found higher crime rates in areas containing at least one adult establishment than in similar areas without adult uses. The Indianapolis study included a nationwide survey of real estate appraisers. A large majority of the appraisers indicated that, in their professional opinions, an adult bookstore would have a negative effect on the value of both residential and commercial properties located within a one block radius of the store. Still another example was a 1997 Los Angeles study that included a survey of real estate professionals and businesses. The survey indicated that a concentration of adult establishments adversely affected the value of surrounding commercial and residential property, made it more difficult to rent office space and retain commercial tenants in the area, and made it harder for area businesses to attract and retain customers.
In view of the legislative record upon which the City Council rested its decision to regulate adult uses, we agree with the courts below that enactment of the Amended Zoning Resolution was not an impermissible attempt to regulate the content of expression but rather was aimed at the negative secondary effects caused by adult uses, a legitimate governmental purpose. Plaintiffs’ reliance on isolated comments from several City Council members and other City officials as evidence of an alleged improper motive to eradicate this form of expression is unavailing. A similar claim was rejected in Islip, where we recognized that courts will not “invalidate a municipal zoning ordinance simply because one or more legislators sought to suppress protected expression. It is the motive of the Legislature, not individual legislators, that is controlling”.
Finally, we are not persuaded by the plaintiff’s discrete argument that the ordinance’s distance requirements are too vague because they do not include a statement indicating the precise standard for measurement. To the extent that this aspect of the ordinance’s provisions leaves room for confusion, the problem is procedurally remediable through administrative application and rule making. Notably, there is no indication on the present record that the City’s enforcement of the distance rules will be arbitrary or uneven.
The City’s effort to address the negative secondary effects of adult establishments is not constitutionally objectionable under any of the standards set forth by the United States Supreme Court. Accordingly, the court held that in each case the order of the Appellate Division should be affirmed, with costs.
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