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Amsterdam Video plaintiffs


This is a criminal proceeding wherein the appeal concerns the validity of New York City’s Amended Zoning Resolution governing the location of adult entertainment establishments throughout the five boroughs.

The court concludes that the Supreme Court correctly granted summary judgment declaring that the challenged ordinance does not violate plaintiffs’ constitutional rights of free expression.

The “adult” establishments at the center of this controversy offer various forms of sexual expression including bookstores, theaters, stores dealing in videotaped material and places of live entertainment. Over time, the industry has experienced a steady growth 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.

In September of 1993, the Department of City Planning (DCP) undertook an evaluation of the impact of such property uses on urban life. The DCP found evidence that adult businesses often have such negative secondary impacts as increased sex crimes rates, depreciated property values and deteriorated community character. The DCP also sought to identify the specific adverse secondary effects caused by adult establishments in New York City itself. The DCP’s independent study confirmed that the number of adult establishments in the City had increased considerably in recent years. The DCP further found that as adult uses proliferated, they tended to cluster. The vast majority of adult establishments were located in zoning districts that permitted residential development.

The DCP determined that there were significant adverse impacts attributable to adult enterprises in the City, including downward pressure on property values and increased crime rate in areas where adult uses are most concentrated. A pivotal finding of the DCP was that a large majority of surveyed business and community organizations believe that their neighborhoods are adversely affected by the presence of adult uses and that this perception itself leads to disinvestment and a marked decline in economic and pedestrian activity.

The Zoning Resolution of the City of New York regulates commercial establishments in the City. However, the Resolution did not distinguish between adult establishments and other commercial ventures. They only 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.

Because of these 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.

On 21 March 1995, the DCP and the City Council Land Use Committee jointly sought to amend the Zoning Resolution and establish a permanent and comprehensive set of regulations governing adult uses. Over the next several months, the City’s 59 community boards, five borough boards and borough presidents, the CPC and the City Council reviewed the proposed amendments and conducted public hearings. On 18 September 1995, the CPC approved the proposed amendments, noting that they were an appropriate and necessary response to the adverse secondary effects stemming from adult establishments and that they nonetheless continue to provide ample opportunity for adult establishments to locate and operate throughout New York City. After further public hearings and debate, the City Council gave final approval to Text Amendment N 950384 ZRY on 25 October 1995.

As adopted by the City Council, the amendments are applicable to any “adult establishment,” defined as those commercial enterprises in which a “substantial portion” of the premises are used as an “adult book store,” an “adult eating or drinking establishment,” an “adult theater” or “other adult commercial establishment” in accordance with Amended Zoning Resolution § 12-10. Covered facilities are those within the foregoing four categories that “regularly feature” or devote a “substantial portion” of their stock-in-trade to entertainment or material that is “characterized by an emphasis on” “specified anatomical areas” or “specified sexual activities” . “Adult eating or drinking establishments,” “adult theaters” and “other adult commercial establishments” are covered only if they exclude minors because of their age (id.).

The criminal amendments to the zoning code include an array of site limitations and anticlustering provisions. Under provisions that predate the amendments, new commercial establishments, including new adult establishments, are barred from the City’s residential zones. Under the amendments, adult establishments, new and old, are now also barred from certain districts that are zoned for manufacturing and commercial use but also permit residential development. The regulated uses are permitted in all other manufacturing districts and in all high-density, general commercial districts.

Within those districts where adult uses are authorized, the adult establishment must be located at least 500 feet from schools, houses of worship, day care centers, other adult uses and zoning districts where new residential development is allowed. In addition, no more than one adult establishment may be located on a single zoning lot, and these establishments cannot exceed 10,000 square feet of usable floor area and cellar space. The amendments also impose restraints on the size, placement and illumination of accessory business signs.

Any adult establishment operating in a prohibited location must either conform or terminate its business within one year of the amendments’ effective date. An exception to this termination requirement is available for existing businesses which are noncompliant only because (1) their area exceeds 10,000 square feet, (2) they are located on a zoning lot with another adult use, or (3) they are situated less than 500 feet from another adult establishment. Another narrow exception is made for otherwise conforming adult uses that fall out of compliance because of the subsequent siting of a school or house of worship within 500 feet of their boundaries. Lastly, adult establishments faced with the one-year termination deadline can apply for an extension to the Board of Standards and Appeals, which may permit the applicant to remain open for a limited time to amortize any substantial and unrecovered costs associated with the adult portion of the establishment.

On 27 February 1996, the Amsterdam Video plaintiffs, consisting of more than 100 owners and operators of adult establishments in the City, and the Hickerson 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.

This Criminal 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 as held in similar cases of Asian Ams. for Equality v Koch and Matter of Harbison v City of Buffalo. It was ruled in McMinn v Town of Oyster Bay and Udell v Haas that 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. Thus, even if the validity of a provision is fairly debatable, the municipality’s judgment as to its necessity must control as held in Matter of Town of Bedford v Village of Mount Kisco. However, Municipal zoning authority is not 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. Consequently, in weighing the validity of such zoning regulations, courts must consider the intertwined constitutional values of free expression.

Matter of Town of Islip v Caviglia delineates the proper balance between community needs and free expression under our Constitution in this state. In Islip, the issue was a zoning ordinance that confined adult uses to industrially zoned areas and prohibited them from locating within 500 feet of a number of certain sensitive criminal receptors or within one-half mile of each other. The ordinance had been prompted by studies of conditions locally and elsewhere which demonstrated the harmful impact of adult businesses on the surrounding community. We concluded that the ordinance satisfied both Federal constitutional standards and the distinct protections afforded by our State Constitution.

The Court considered whether the predominant purpose of the challenged criminal ordinance was to ameliorate the negative secondary effects of adult uses rather than to suppress their content, whether the ordinance was narrowly tailored to affect only those uses shown to produce the unwanted secondary effects and whether it provided adequate alternative locations for adult businesses within the Town. With respect to the State constitutional claims in Islip, the Court considered whether the Town’s ordinance was justified by concerns unrelated to speech, whether it was no broader than needed to achieve its purpose under the State constitutional principles set forth in People ex rel. Arcara v Cloud Books and, finally, whether if the ordinance were enforced the total number of adult bookstores would decline or fewer potential customers would be able to conveniently patronize them. It is against the template of Islip, that we measure plaintiffs’ claims in these cases.

The threshold issue here 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 Federal constitutional analysis requires examination of the ordinance’s “predominant purpose”, while the State constitutional inquiry focuses on whether there has been “a purposeful attempt to regulate speech. The criminal court finds that these are insignificant because it is apparent from the amendments’ legislative history that ameliorating the negative social consequences of proliferating adult uses was the City’s only goal.

The court agrees 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. The 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.

The test under both Islip and Renton is not whether the regulated establishments are defined without reference to content but whether the ordinance’s goal is unrelated to suppressing that content. The court finds that that test is plainly met here.

Plaintiffs’ complaints about the sufficiency of the evidence on which the City Council based its decision are unpersuasive. It is clear from the comments of the CPC upon its approval of the amendments that the appropriate municipal officials considered the comparability and the reliability of the other jurisdictions’ studies and found them satisfactory on both counts. The City did not rely exclusively on generic conclusions drawn from out-of-area studies but also conducted studies of its own.

Contrary to plaintiffs’ contentions, the “nonempirical,” anecdotal evidence that comprised the bulk of the local studies does not render those studies worthless. In the proper context, anecdotal evidence and reported experience can be as telling as statistical data and can serve as a legitimate basis for finding negative secondary effects as held in Renton v. Playtime Theatres. In the case at bar, the nonempirical information is extensive and indicative of a clear relationship between adult uses and urban decay.

It is settled that municipalities can constitutionally bar adult establishments from, or within, a specified distance of residentially zoned areas and facilities in which families and children congregate. Zoning ordinances may be used to prohibit an adult business from operating within a specified distance of another in order to avoid the undesirable impacts associated with the clustering.

Relying on our State constitutional standard, plaintiffs insist that defendants should have pursued less restrictive methods of addressing the problems caused by adult uses, such as more aggressive enforcement of existing penal and public nuisance laws, developing targeted signage requirements and limiting adult-use zoning restrictions to new sex establishments. However, the record here shows that the City Council reasonably determined that the listed alternatives would not adequately address problems it sought to ameliorate.

Contrary to plaintiff’s assertions in Stringfellow’s, the City was not obligated on this record to distinguish among different types of adult uses based on the social class of their clientele or the nature of the adult entertainment they provide.

To satisfy constitutional requirements, the City additionally must assure reasonable alternative avenues of communication in that, there must be (1) “ample space available for adult uses after the rezoning” and (2) no showing by the challenger that enforcement of the ordinance will either substantially reduce the total number of adult outlets or significantly reduce the accessibility of those outlets to their potential patrons..

The Federal courts have generally concluded that reasonable alternative avenues of communication exist if there is sufficient land area open for use by adult businesses in all stages of development from raw land to developed, industrial, warehouse, office and shopping space that is criss-crossed by freeways, highways and roads based on a formula derived from Renton v. Playtime Theatres. Under Renton, land that is already occupied by commercial and manufacturing facilities and undeveloped land that is not for sale or lease is not to be automatically deemed unavailable. Further, any reduction in profitability caused by a forced relocation is not relevant to the availability inquiry.

The criminal courts have considered such factors as their accessibility to the general public, the surrounding infrastructure, the pragmatic likelihood of their ever actually becoming available and, finally, whether the sites are suitable for some generic commercial enterprise in determining whether proposed relocation sites are part of an actual business real estate market. These considerations comply with the requirement that there be ample space available for adult uses after the rezoning and no showing of a substantial reduction in the total number of adult outlets or the accessibility of those outlets to their potential patrons. With these considerations, the court turns to the specific facts and contentions presented here.

Plaintiffs assert, and the municipal defendants do not dispute, that the amendments’ enforcement will lead to the forced relocation of some 84% of the City’s 177 adult businesses. Given the extent of the dislocation, it is incumbent upon the municipal defendants to demonstrate that sufficient alternative receptor sites are available. The City has asserted that the space available for adult uses constitutes over 11% of the City’s total land area and about 4% when reduced by land encumbered by properties that are unlikely to be developed for commercial use. They further assert that the amended zoning code leaves at least 500 potential sites for adult establishments to relocate and operate based on the maps prepared by city officials.

According to the City’s submissions, the amendments will allow adult businesses to remain in districts that permit a wide mix of commercial, retail, entertainment and manufacturing uses. All of the areas in Manhattan zoned for adult use and at least 80% of the land area in the other boroughs are within a 10-minute walk from a subway line or a major bus route. These supported allegations by the City satisfy its initial burden of showing that the space designated for adult uses is adequate to accommodate the 177 existing adult businesses.

Plaintiffs rely heavily on an affidavit by RM, a land-use planning and local government consultant who actually visited the sites the City identified as potential receptors. It is alleged that many of the sites are in truth unavailable because they currently house long-term occupants and lack the necessary infrastructure or lie on wetland property that is not suitable for commercial development. He alleges that the City’s zoning plan does not allow for adequate alternative avenues for adult expression.

The court notes that his affidavit is insufficient to raise a triable question of fact as to the availability of enough potential receptor sites. The affidavit is speculative and presents no impediment to summary judgment.

The Amsterdam Video and Stringfellow’s plaintiffs argue that the amendments’ enforcement will lead to an unconstitutional taking because much of the substantial investments they have made in their businesses will be lost if they are required to relocate. They further contend that the one-year amortization provision in the ordinance is too short to give them an opportunity to recoup their investments. These arguments are unpersuasive because they fail to take into account the effect of the statutory provisions for hardship extensions. The plaintiff’s contention that the amendments are unconstitutionally vague is unavailing. It should suffice to observe that the amendments’ definitional provisions are sufficiently specific to provide the public with clear and reasonable notice of the type of businesses that are covered. The Federal courts have already upheld similar zoning provisions that regulate commercial facilities devoting a substantial portion of their businesses to adult entertainment as in ILQ Invs. v City of Rochester. No assault and no robbery were involved,

Finally, the court is not persuaded by the Stringfellow’s 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. There is no indication on the present record that the City’s enforcement of the distance rules will be arbitrary or uneven.

The court finds that 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 in Renton v. Playtime Theatres or by this Court in Matter of Town of Islip v. Caviglia.

Accordingly, in each case the order of the Appellate Division should be affirmed, with costs.

Queens County Sex Crime Lawyers, Queens County Constitutional Rights Lawyers and Stephen Bilkis & Associates acknowledge their invaluable role to protect the moral ascendancy in our society. We work together to create a better place for our children to thrive. Please call our toll free number or visit our office for more information regarding the issues presented in this case.

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