Judge Rules Against a Zoning Law on Sex-Related Establishments
Posted on | August 30, 2012
Written by | RUSS BUETTNER
A Manhattan judge on Thursday ruled that a 2001 city law was unconstitutional in seeking to reduce the number of stores and clubs that offer a mix of sexual content and other material in neighborhoods where X-rated establishments are banned.
The law sought to plug what the city considered to be a loophole in the 1995 zoning change that banned "adult establishments" from residential neighborhoods and from being within 500 feet of another such establishment, a school or a place of worship.
The 1995 law defined an "adult establishment" as any business where more than 40 percent of its material was sexually oriented. By the end of the 1990s, the city came to believe that many of the so-called 60-40 establishments were shams that kept a few shelves of innocuous material to disguise the true nature of their business.
So in 2001, the city broadened the definition to include criteria that would have required most of the 60-40 establishments to close or move to industrial areas.
On Thursday, Justice Louis B. York of State Supreme Court ruled that the mixed-use establishments were not shams and did not create a public nuisance in their communities, and that the city had sufficient tools to close any establishment that skirted the 40 percent rule.
In a discussion of the case attached to his decision, Justice York wondered whether the city's failure to study the negative impacts of the 60-40 establishments suggested that "what the city is really regulating is the content of expression, clearly a violation of the plaintiff's rights to freedom of speech."
The decision will have no immediate practical effect, because the 2001 law that it overturned was not enforced while lawsuits challenging its constitutionality winded through the courts.
The 1995 zoning law change, which was upheld by the courts, succeeded in scattering sexually oriented businesses to industrial areas across the city, breaking up clusters of X-rated businesses and strip clubs in Times Square and elsewhere, and opening the door to remaking those neighborhoods.
Justice York's decision included nine pages of descriptions on how some of the mixed-material establishments segregated their sexually oriented material and included nonsexual material of legitimate interest to consumers. For example, an area in Ten's Cabaret in Manhattan that is separate from the establishment's topless dancers has held events featuring the pop singers Mariah Carey and Janet Jackson, he wrote.
Martin P. Mehler, a lawyer who represented several topless clubs in the case, said the city's defense of the 2001 law failed because the original 60-40 rule had worked.
"We have adhered to what the law was," Mr. Mehler said. "It has accomplished its goal of doing away with that tawdry atmosphere that used to exist in Times Square, and there was no need to take away a basic First Amendment right."
Lawsuits challenging the 2001 law have taken many turns over the last decade. Justice York twice before, in 2009 and 2010, found the law to be constitutional. But he was directed by appellate courts to reconsider both rulings.
The litigation may not be over. City lawyers said on Thursday that they would appeal.
"We believe the court was right the first time when it ruled that 60-40 establishments have a predominant sexual focus," Robin Binder of the city's Law Department said. "The city's ability to regulate adult establishments is critical to preserving neighborhood quality of life."
But Herald Price Fahringer, who represented more than 100 video stores in the case, said the suit was not about protecting neighborhoods as much as about free speech and letting the marketplace, rather than government, decide which businesses survive.
"It's wrong for a city or a state to say, 'We're banning this type of literature, and we're not going to allow you to read or see it,' " he said. "That's just un-American."
A version of this article appears in print on August 31, 2012, on page A24 of the New York edition with the headline: Judge Rules Against Zoning Law on Sex-Related Businesses