JGJ Merchandise Corp. v. City of New York , Ten's Cabaret, Inc. v. City of New York ( 2017 )

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 59
For the People Theatres of N.Y.
Inc., &c.,
Plaintiff,
JGJ Merchandise Corp., &c.,
Respondent,
v.
City of New York, et al.,
Appellants.
---------------------------------
Ten's Cabaret, Inc., &c., et al.,
Respondents,
v.
City of New York, et al.,
Appellants.
Ingrid Gustafson, for appellants.
Erica T. Dubno, for respondent JGJ Merchandise Corp.
Edward S. Rudofsky, for respondents Ten's Cabaret, Inc.
et al.
First Amendment Lawyers Association, amicus curiae.
FAHEY, J.:
Through a long, complicated, and confusing history, the
litigants have struggled over the application of zoning
regulations as they apply to New York City's adult entertainment
industry. We hold that the City has met its burden of
demonstrating that the establishments affected by its 2001 zoning
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amendments retained a predominant focus on sexually explicit
materials or activities. It follows, under our 2005 decision in
this case, that the amendments do not violate plaintiffs' First
Amendment rights.
I.
In 1994, the New York City Department of City Planning
(DCP) completed a study of sexually focused businesses, namely
"adult video and bookstores, adult live or movie theaters, and
topless or nude bars," and identified significant negative
secondary impacts, including increased crime, diminished property
values, reduced shopping and commercial activity, and a perceived
decline in residents' quality of life. After public hearings,
the City's Planning Commission issued a report, adopting the
findings and conclusions of the study and noting that the
businesses with adverse secondary impacts had "a predominant,
on-going focus on sexually explicit materials or activities."
The next year, after further public hearings, the New
York City Council added zoning regulations barring adult
establishments from residential zones and most commercial and
manufacturing zones, and mandating that, where permitted, adult
businesses had to be at least 500 feet from houses of worship,
schools, day care centers, and other adult businesses.
The 1995 Zoning Ordinance defined an "adult
establishment" as a commercial establishment a "substantial
portion" of which was "an adult book store, adult eating or
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drinking establishment, adult theater, or other adult commercial
establishment, or any combination thereof." In turn, an "adult
book store" (a term meant to embrace stores selling or renting
sexually explicit video material, as well as books and magazines)
was defined as having a "substantial portion" of its
"stock-in-trade" in, among other things, printed matter or video
representations depicting "specified sexual activities" or
"specified anatomical areas," as defined in the regulations. An
"adult eating or drinking establishment" was defined as an eating
or drinking establishment that excludes minors and "regularly
features" live performances or films emphasizing "specified
sexual activities" or "specified anatomical areas," or where the
employees regularly expose "specified anatomical areas" to
patrons as part of their employment.
Certain adult establishments, including Stringfellow's
of New York, Ltd. (the predecessor in interest of plaintiff Ten's
Cabaret, Inc.), challenged the 1995 Ordinance, as violating their
rights of free speech protected by the First Amendment of the
Federal Constitution and article I, § 8 of the State
Constitution. This Court held that the Ordinance was
content-neutral because it was not "purposefully directed at
controlling the content of the message conveyed through adult
businesses," but instead "was aimed at the negative secondary
effects caused by adult uses, a legitimate governmental purpose"
(Stringfellow's of New York v City of New York, 91 NY2d 382, 397,
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399 [1998]). We further ruled that the Ordinance was not broader
than necessary, since it "protect[ed] only those communities and
community institutions that are most vulnerable to . . . adverse
impacts" (id. at 400), and that reasonable alternative avenues of
communication were assured, because the zoning "allow[ed] adult
businesses to remain in districts that permit a wide mix of
commercial, retail, entertainment and manufacturing uses" and, in
almost every instance, were "within a 10-minute walk from a
subway line or a major bus route" (id. at 403). The 1995
Ordinance was "not constitutionally objectionable" (id. at 406)
under the standards of Renton v Playtime Theatres, Inc. (475 U.S.
41 [1986]) and Matter of Town of Islip v Caviglia (73 NY2d 544
[1989]). Although we did not use the term "intermediate
scrutiny" in Stringfellow's, it is clear that we applied this
standard insofar as we determined whether the ordinance was
narrowly tailored to serve a substantial governmental interest
and allowed for reasonable alternative channels of communication.
Meanwhile, the City's Department of Buildings and its
Planning Commission, in an effort to give clarity to the concept
of an establishment's "substantial portion," determined in a 1998
Operation Policy and Procedure Notice that any commercial
establishment with at least 40 percent of its customer-accessible
floor/cellar area or stock-in-trade used for adult purposes
qualified as an adult establishment. Thus emerged the so-called
60/40 test, which was applied to identify adult bookstores and
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adult eating or drinking establishments alike.
As the City began to enforce the 1995 Ordinance, it
concluded that adult establishments were achieving technical
compliance with the 60/40 test, but without altering their
predominant focus on sexually explicit activities or materials.
As the City saw it, the 60/40 businesses were engaged in a
"sham." In one case, the City sought to shut down a store that
complied with the test, insofar as just 24% of its stock
consisted of adult videos, but where the nonadult videos were
offered only for sale, not for rent, did not sell profitably, had
been supplemented very modestly, and were located in a back room.
This Court ruled in City of New York v Les Hommes (94 NY2d 267
[1999]) that the zoning resolutions must be enforced as written,
without considering such factors as whether the nonadult stock
was unprofitable or located in a remote part of the premises.
DCP then applied to the Planning Commission for
amendments to the ordinance. The Planning Commission held
further public hearings and issued a report endorsing the
proposed amendments. In 2001, the City Council approved
significant changes to the zoning regulations, greatly reducing
the significance of the 60/40 test.
With respect to "adult eating or drinking
establishments," the 2001 Amendments removed "substantial
portion" from the definition, providing instead that a venue is
covered if it regularly features live performances characterized
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by an emphasis on certain "specified anatomical areas" or
"specified sexual activities" in any portion of the
establishment, regardless of whether it limits those performances
to less than 40% of its floor area. In other words, a club
featuring topless or nude dancers qualifies as an "adult eating
or drinking establishment" no matter the proportion of its space
devoted to adult entertainment.
With regard to adult bookstores, the 2001 Amendments
formally kept the 60/40 test, with the added provision that if a
store passes the test, but meets at least one of eight criteria,
then the store's non-adult material will not be considered
stock-in-trade for the purpose of the "substantial portion"
analysis. For example, if a store has peep booths, i.e.
enclosures "where adult movies or live performances are available
for viewing by customers," then it qualifies as an adult
bookstore, no matter how many nonadult video discs and magazines
it stocks.
The 2001 Amendments are the subject of the actions that
we now consider, for the second time, today.
II.
In 2002, plaintiffs For the People Theatres of N.Y.,
Inc., which showed adult films, and JGJ Merchandise Corp., an
adult video store also known as Vishans Video and as Mixed
Emotions, brought an action against the City, its Mayor, the
Director of City Planning, and the Commissioner of Buildings
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(collectively, the City). Both companies had reconfigured their
establishments prior to the 2001 Amendments to comply with the
60/40 test. Plaintiffs sought a judgment declaring the
definitions of "adult theater" and "adult bookstore" in the 2001
Amendments to be facially unconstitutional, as a violation of
free speech. They argued principally that the City failed to
support the amended regulations with a study aimed at the
specific secondary effects of the class of 60/40 businesses. At
the same time, plaintiffs Ten's Cabaret, Inc., Pussycat Lounge,
Inc., and two other topless clubs, which have since closed,
commenced a similar action challenging the definition of "adult
eating or drinking establishment" in the 2001 Amendments. The
actions were ultimately consolidated.
Ten's Cabaret moved for summary judgment, all
plaintiffs moved for a preliminary injunction against
enforcement, and the City cross-moved for summary judgment.
Plaintiffs argued that the City, in seeking to amend the 1995
Ordinance, had improperly relied on the 1994 DCP Study that led
to the original zoning regulations, and had failed to generate
any new empirical data regarding the purported adverse secondary
effects of 60/40 establishments, even though the entities were,
according to plaintiffs, very different from the businesses
reviewed in the DCP Study. For the People Theatres of N.Y. and
JGJ Merchandise submitted affidavits and reports of two experts,
an economist and a criminologist, who opined that 60/40
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bookstores and theaters do not negatively affect property values
or have adverse consequences in the form of increased criminal
complaints. The remaining plaintiffs produced a 2001 NYPD report
listing only one topless club in Manhattan with violations and
similar documents suggesting that nightclubs other than adult
establishments were perceived by the police as more problematic
at the time. For its part, the City contended that a new study
was not necessary because the City Council had rationally found
that the 60/40 clubs and stores retained a predominant, ongoing
focus on sexually explicit entertainment, which had already been
determined to give rise to negative secondary effects.
In 2003, Supreme Court denied the City's cross motions
for summary judgment, granted plaintiffs' motions for summary
judgment, declared the 2001 Amendments unconstitutional, and
enjoined their enforcement (see 1 Misc. 3d 394, 397 [Sup Ct, NY
County 2003]; 1 Misc. 3d 399, 407 [Sup Ct, NY County 2003]).
Supreme Court held that defendants were "constitutionally
required to provide evidence showing that the 60/40s did not
remedy the secondary effects" (1 Misc 3d at 408-409).
The Appellate Division reversed Supreme Court's
judgments, denied plaintiffs' motions, granted the City's
motions, vacated the injunction, declared the 2001 Amendments
constitutional, and dismissed the complaints (see 20 AD3d 1 [1st
Dept 2005]). The Appellate Division reasoned that a new
"secondary impacts" study was not required because the sexual
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character of the businesses had not changed when they became
60/40 businesses, and plaintiffs had failed to furnish evidence
that would shift the evidentiary burden back to the City (see id.
at 21).
III.
In 2005, this Court modified the Appellate Division's
order, by denying the City's motions for summary judgment, and
remitted the matter for further proceedings (see 6 NY3d 63
[2005]).
We applied the United States Supreme Court's
burden-shifting framework established in Los Angeles v Alameda
Books, Inc. (535 U.S. 425 [2002]), which set out what a
municipality must prove in order to sustain a zoning ordinance
that regulates adult businesses in the face of a First Amendment
challenge.
Briefly, in Alameda Books, the Supreme Court set out a
three-part burden-shifting framework for determining the
constitutionality of zoning that regulates adult establishments.1
1
In Alameda Books, the plurality, assuming without deciding
that a Los Angeles adult use zoning ordinance was content-neutral
(see Alameda Books, 535 U.S. at 441), set out the three-part
framework. Justice Kennedy, concurring in the judgment on the
narrowest grounds, expressed the view that zoning restrictions on
adult businesses are in reality "content based and we should call
them so" (id. at 448 [Kennedy, J., concurring]), but nevertheless
reasoned that "[a] zoning restriction that is designed to
decrease secondary effects and not speech should be subject to
intermediate rather than strict scrutiny" (id. at 448 [Kennedy,
J., concurring]), and agreed with the plurality's framework,
including what Justice Kennedy called the requirement of "very
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First, a "municipality's evidence must fairly support the
municipality's rationale for its ordinance" (id. at 438).
Second, the municipality prevails "[i]f plaintiffs fail to cast
direct doubt on this rationale, either by demonstrating that the
municipality's evidence does not support its rationale or by
furnishing evidence that disputes the municipality's factual
findings" (id. at 438-439). Third, "[i]f plaintiffs succeed in
casting doubt on a municipality's rationale in either manner, the
burden shifts back to the municipality to supplement the record
with evidence renewing support for a theory that justifies its
ordinance" (id. at 439).
In our 2005 decision, this Court interpreted Alameda
Books to mean that, with respect to the first stage, "a
municipality's burden to prove that it has a substantial interest
in regulating a particular adult activity is not a very heavy
one" (6 NY3d at 80). We explained that
"the reasonable discretion accorded most
local legislative actions extends to adult
use zoning. A local government implementing
zoning that affects adult businesses must
have a legislative record that establishes a
substantial governmental interest in the
subject matter of the regulation to justify
restrictions on protected speech; however,
the local government retains discretion to
make its findings from studies or other
supportive information before it, and to draw
reasonable conclusions about which regulatory
techniques will be most beneficial in
addressing the findings" (id. at 81).
little evidence" by the municipality (id. at 450-451 [Kennedy,
J., concurring]).
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We noted, however, that, under Alameda Books, if
plaintiffs demonstrate that the municipality's evidence does not
support its rationale or provide evidence disputing the
municipality's factual findings, then "the burden shifts back to
the municipality to supplement the record" (id. at 79-80, quoting
Alameda Books, 535 U.S. at 439).
First, we held that the City had satisfied its initial
burden to justify a rationale for the 2001 Amendments. "Here,
the City cites the 1994 DCP Study, . . . and its subsequent
enforcement experiences to demonstrate that while many adult
businesses may comply with the 1995 Ordinance, at least
technically, their essential character remains unchanged. It is
this essential character -- as adult bookstores or adult video
stores or strip clubs or topless clubs -- that creates negative
secondary effects" (6 NY3d at 81). We parted from the Appellate
Division at the second stage of Alameda Books, holding that
plaintiffs had furnished evidence disputing the City's factual
findings, shifting the burden back to the City to supplement the
record with evidence renewing support for its rationale.
Significantly, however, we stated that the City is "not
required . . . to relitigate the secondary effects of adult uses,
or to produce empirical studies connecting 60/40 businesses to
adverse secondary effects" (id. at 83), and that the sole
remaining question of fact is "whether 60/40 businesses are so
transformed in character that they no longer resemble the kinds
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of adult uses found . . . to create negative secondary effects"
(id. at 83-84). The limited scope of the remand was explained by
our observation that "[t]he City justified the 2001 Amendments as
a measure to eradicate the potential for sham compliance with the
1995 Ordinance, and thus to reduce negative secondary effects to
the extent originally envisaged" (id. at 81).
We gave the following specific guidance to the lower
courts regarding our remand:
"we anticipate that the City will produce
evidence relating to the purportedly sham
character of self-identified 60/40 book and
video stores, theaters and eating and
drinking establishments or other commercial
establishments located in the city. This
does not mean that the City has to perform a
formal study or a statistical analysis, or to
establish that it has looked at a
representative sample of 60/40 businesses in
the city. If the trier of fact determines,
after review of this evidence, that the City
has fairly supported its position on sham
compliance -- i.e., despite formal compliance
with the 60/40 formula, these businesses
display a predominant, ongoing focus on
sexually explicit materials or activities,
and thus their essential nature has not
changed -- the City will have satisfied its
burden to justify strengthening the 1995
Ordinance by enacting the 2001 Amendments,
and will be entitled to judgment in its
favor. If not, plaintiffs will prevail on
their claim that the 2001 Amendments are
insufficiently narrow and therefore violate
their free speech rights" (id. at 84
[emphases added]).
IV.
Following discovery, the City presented evidence in two
bench trials, concerning the characteristics of some 14 adult
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bookstores and 10 adult eating and drinking establishments (as
defined by the 2001 Amendments), which identified themselves as
compliant with the 60/40 test. Managers or owners testified
about efforts to reconfigure premises in accordance with that
rule, while Office of Special Enforcement inspectors described
the adult establishments, contrasting them with two nonadult
video stores. Photographs of the adult establishments, pages
from the topless clubs' websites that included images promoting
the attributes of individual dancers, and video recordings of the
adult bookstores were entered into evidence.
The trial court upheld the amended zoning regulations
in 2010, as to both the adult bookstores and the adult eating or
drinking establishments, and entered judgments in favor of the
City (see 27 Misc. 3d 1079 [Sup Ct, NY County 2010]). Supreme
Court emphasized that under the standard imposed by our 2005
decision "the City's burden was a 'light' one" and that the City
had "provided substantial evidence" as to the "dominant, ongoing
focus" of the bookstores and topless clubs on sexually explicit
materials and activities (id. at 1089).2
In 2011, the Appellate Division reversed, vacated the
findings of constitutionality, and remanded (see 84 AD3d 48 [1st
Dept 2011]). The Appellate Division ruled that the trial court
2
The trial court ruled in favor of the adult theater, For
the People's Theatres, N.Y. (see 27 Misc. 3d at 1089), and the
City did not appeal this part of the judgment.
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had failed to specify "the criteria by which it determined that
the plaintiffs' essential nature was similar or dissimilar to the
sexually explicit adult uses" underlying the 1995 Zoning
Ordinance and had "failed to state the particular facts on which
it based its judgment" (id. at 59).
The Appellate Division also concluded that Ten's
Cabaret and Pussycat Lounge had brought an "inartfully pleaded"
as-applied challenge, and that the trial court had failed to set
out findings of fact pertinent to that claim (id. at 64-65).
Notably, however, no as-applied challenge had been before this
Court in 2005 when we remanded.
The Appellate Division instructed the trial court on
remand to use various characteristics of adult establishments
identified in DCP's 1994 study to determine whether the 60/40
businesses retained a predominant focus on sexually explicit
materials or activities.
"For example, the presence of large signs
advertising adult content may indicate a
predominant focus on promoting sexually
explicit materials. The same is true of a
significant emphasis on the promotion of
materials exhibiting 'specified sexual
activities' or 'specified anatomical areas,'
as evidenced by a large quantity of peep
booths featuring adult films. Other
indicators of a predominant focus on sexually
explicit materials might be the exclusion of
minors from the premises on the basis of age
or difficulties in accessing nonadult
materials" (id. at 61-62 [footnotes
omitted]).
The Appellate Division stated that "the City's evidence
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is subject to intermediate scrutiny" (id. at 59 n 6), and
instructed that the trial court should hold the City to a more
"heightened standard" (id. at 63) than it had in 2010. At the
same time, however, the Appellate Division mentioned that "'very
little evidence is required' to uphold the constitutionality of
the 2001 Amendments" (id. at 62, quoting Alameda Books, 535 U.S. at
451 [Kennedy, J., concurring]), and signaled that if the trial
court found that most 60/40 establishments had any one of the
characteristics of adult establishments identified in the 1994
study, then the City would have "more than enough evidence to
justify the City's 2001 ordinances" (84 AD3d at 63 n 12; see also
131 AD3d 279, 289 [1st Dept 2015]).
V.
On remand, the City relied upon the prior record.
In 2012, the trial court struck down the 2001 zoning
regulations as to adult eating and drinking establishments and
adult bookstores as an unconstitutional violation of the First
Amendment, enjoining the City from enforcing them (see 38 Misc. 3d
663 [Sup Ct, NY County 2012]).
The trial court's findings of fact regarding the adult
eating and drinking establishments were as follows.
Ten's Cabaret had divided itself into two clubs, with
separate entrances and operating hours: a gentlemen's club
featuring topless dancing and a nonadult entertainment facility
named "Room Service," consisting of private suites used for
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celebrity events. Similarly, Pussycat Lounge had a nonadult
section in the form of a concert venue named "Catbar," with its
own website, which frequently had more clientele than the topless
club did. Another adult eating and drinking establishment,
Vixen, offered both adult and nonadult entertainment, although
its website emphasized the former. VIP Club offered topless
dancing on its first floor and sushi dining on the second floor;
dancers offered individual "lap dances" to patrons in private
rooms on both floors. Lace and Lace II had topless clubs on
their first floors, and a nonadult lounge and a sports bar on
their respective second floors. Private Eyes, which advertised
itself on awnings as a "[S]ports Cabaret and Gentlemen's Club,"
comprised an adult entertainment portion featuring topless
dancers and lap dances and a nonadult bar with bikini dancing.
The same was true of Bare Elegance, which described itself on
exterior signage as a "Gentlemen's Club and Lounge" with "Live
Beautiful Models." HQ offered topless dancing on the ground
floor and dining facilities for patrons on the second floor. At
Wiggles, topless dancing and lap dances were on offer, and the
nonadult section provided patrons with a coat check, pool table,
and seating.
With respect to the adult bookstores, the trial court
made the following findings.
Plaintiff JGJ Merchandise promoted both adult and
nonadult items in its exterior signage and featured a window
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display of general interest magazines. Love Shack (Queens)
promoted its nonadult products above a single reference to
viewing booths, with the same size of lettering for both and no
lighted or neon signage of the booths. Exquisite DVD had divided
its nonadult merchandise according to category, making specific
nonadult items easier to find. The nonadult material was located
in the front of the store. At Blue Door Video (Brooklyn), the
nonadult materials were in the front of the store, and customers
in the nonadult section outnumbered customers in the adult
section, but the adult section was visible from the nonadult
section. At Blue Door Video (Manhattan), there were 24 peep
booths. Both Blue Door Video stores sold condoms, sex aids,
and/or sex toys in their nonadult sections. Love Shack (Bronx)
sold adult novelties, sex aids, and condoms in the nonadult
section, in the front, which afforded customers a view of the
adult section, featuring 8 peep booths. Gotham City (8th Avenue)
kept its nonadult videos in the front of the store. Video
Xcitement sold sex toys and sex aids in its nonadult section, in
the front of the store. Show World no longer featured peep
booths with live models or nude theater performances, but rather
promoted comedy club performances and off-off-Broadway
productions, advertised in city magazines. Its marquee did not
mention adult performances. At Thunder Lingerie, a neon sign in
the front entrance advertised peep shows and customers were able
to see from the nonadult section to the adult section. The front
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of Amsterdam Video was devoted to nonadult materials and there
were no peep booths in that store.
The trial court found that the nonadult sections of the
adult bookstores were "almost always located in the front . . .
with the adult section in the back, so that a patron can visit
the front and never go to the back of the store" (38 Misc 3d at
674-675). The trial court also observed that almost none of the
adult establishments displayed "garish neon lighted signs" or
"hard-core sexual images or language," and that "the nonadult
signage is as prominent as the adult signage" (id. at 675).
Based on these findings, the trial court concluded that
plaintiffs "no longer operate in an atmosphere placing more
dominance of sexual matters over nonsexual ones. Accordingly,
there is no need for the 2001 Amendments. On their face,
therefore, they are a violation of free speech provisions of the
US and State Constitutions" (id. at 675). The trial court
accordingly enjoined the City from enforcing the 2001 Amendments.
Supreme Court noted that it was applying a different
standard in 2012 than in 2010, because the Appellate Division had
"stated that the test was not one of rational
basis and substantial evidence, but the
higher test of intermediate scrutiny.
Reviewing all of the Appellate Division
directions caused this court to look more
deeply into the factual findings and the
standards by which to make its judgment. The
burden on the City, then, is greater than
previously understood" (id. at 673-674).
Having ruled the 2001 Amendments facially
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unconstitutional, the trial court did not reach the topless
clubs' as-applied challenge identified by the Appellate Division
(see id. at 674).
A divided Appellate Division affirmed Supreme Court's
judgment in 2015 (see 131 AD3d 279 [1st Dept 2015]). The court
applied the criteria it had suggested in 2011 for determining
whether the 60/40 businesses retained a predominant focus on
sexually explicit materials: "(1) the presence of large signs
advertising adult content, (2) significant emphasis on the
promotion of materials exhibiting 'specified sexual activities'
or 'specified anatomical areas,' as evidenced by a large quantity
of peep booths featuring adult films, (3) the exclusion of minors
from the premises on the basis of age, and (4) difficulties in
accessing nonadult materials" (id. at 289).
First, the Appellate Division considered the adult
bookstores. With respect to signage, the Appellate Division
affirmed the trial court's findings that the signs advertising
adult content were not large, graphic, or garish, and that the
nonadult signage was as prominent as the adult signage (see id.
at 290). As to the prohibition of minors, the Appellate Division
found that this was not a significant factor, with 6 of the 13
adult bookstores permitting minors (see id. at 291). With
respect to ease of access to nonadult materials, the Appellate
Division affirmed the trial court's finding that most of the
stores kept the nonadult materials in the front of the stores,
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making them easy to find (see id.).
However, as to emphasis on promoting sexually explicit
materials, the Appellate Division found that the adult book
stores "all place[d] a significant emphasis on the promotion of
such materials, based on promotional signage, window and interior
displays and layouts promoting sexually focused adult materials
and activities," and that the record evidence established that
all but one of the stores had peep booths, with an average of
about 17 booths per store (id.). The Appellate Division noted
that "[t]his evidence supports the City's argument that the
stores are predominantly sexually focused" (id.).
Nonetheless, the Appellate Division concluded that
because "three of the four factors tend not to support the City's
position, . . . the City has not met its burden with respect to
the adult video and book stores" (id.).
The Appellate Division then turned to the adult eating
and drinking establishments. As to signage, the Appellate
Division noted that there was no record evidence of the size or
quality of the signs advertising "gentlemen's clubs" and the like
(see id. at 293). With regard to prohibition of minors, the
Appellate Division found that this was again not a significant
factor "since minors are presumably excluded because alcohol is
served at the premises, not because of a focus on adult material"
(id. at 293 n 11). As to ease in accessing the nonadult section,
the Appellate Division found "no evidence in the record that
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these configurations make the nonadult sections difficult to
access" (id. at 293).
On the other hand, the Appellate Division found that
the evidence adduced by the City "shows that topless dancing
takes place at all times daily for approximately 16 to 18 hours a
day and that lap dances are provided in both public and private
areas of the club" (id. at 292). The Appellate Division
concluded that "the 60/40 clubs regularly feature topless dancing
and lap dancing in a substantial portion of their overall space.
This, coupled with the evidence regarding some of the clubs'
website and newspaper advertisements,. . . indicates a
predominant sexual focus in most of the clubs" (id. at 292-293).
Again, however, the Appellate Division concluded that
because three of the four factors did not support the City's
position, the City has not carried its burden, suggesting that
"satisfaction of one of the factors is not sufficient to meet the
City's burden" (id. at 293).
Two Justices dissented. The dissenters believed that
the City had "sustained its burden as to sham compliance by
demonstrating that by and large the essential character of the
60/40 businesses has not changed, even if their physical
structure has" (id. at 295 [Andrias, J., dissenting]).
The dissenting Justices gave the following reasoning.
"Substantial evidence demonstrates that,
notwithstanding the present availability of
additional amenities or certain nonadult uses
of their space, the adult eating and drinking
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establishments used for illustrative purposes
retained a predominant sexual focus. These
establishments typically feature topless
dancing by multiple dancers on a daily basis
for approximately 16 to 18 hours a day . . .
with lap dancing provided in both the adult
and the nonadult areas. . . .
"The adult book stores and video stores also
retained a predominant focus on sexual
materials or activities. The evidence of
promotion, based on signage, displays in some
front windows and throughout the stores, and
layout, combined with the evidence of the
presence of large numbers of peep booths and
the evidence of the sale of adult sex toys in
the nonadult sections of the stores,
demonstrates that most of the stores . . .
emphasized the promotion of sexual materials
over nonadult materials" (id. at 300-302
[Andrias, J., dissenting] [footnote
omitted]).
The dissenters focused on the majority's use of an
improper legal standard.
"The majority's mechanical and mathematical
approach, under which the predominant sexual
focus in the 60/40 businesses' activities is
quantitatively outweighed by signage,
policies towards minors, and layouts, is
inadequate under the dictates of the Court of
Appeals and this Court, and elevates the
City's burden of proof. In identifying
certain factors relevant in assessing the
character of the adult establishments, this
Court did not call for a mechanical
application by which each factor is to be
weighted equally and tallied to arrive at a
quantitative conclusion" (id. at 302
[Andrias, J., dissenting] [emphasis added]).
The City appealed. Because the two-Justice dissent was
on a question or questions of law in appellants' favor, we have
jurisdiction over this appeal under CPLR 5601 (a).
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VI.
It is the City's burden to show that the adult
businesses retained a predominant, ongoing focus on sexually
explicit materials or activities. As described above, Alameda
Books sets out a three-part burden-shifting framework for
determining the constitutionality of adult use zoning, which we
followed in our 2005 decision. The analytical issue that remains
at this point in the litigation concerns the burden of proof that
the City must sustain in order to prevail at the third stage,
after the burden has shifted back to the City to supplement the
record. This narrow issue is distinct from, but related to, the
question of the overall level of constitutional scrutiny.
As we have noted, we apply intermediate scrutiny in the
adult use zoning context. In Stringfellow's (91 NY2d 382), in
keeping with federal precedent (see Renton, 475 U.S. at 50), we
properly applied intermediate scrutiny to the question whether
the City's purpose justified the original zoning ordinance,
considering whether the ordinance was narrowly tailored to the
City's purpose or else broader than necessary, and whether
reasonable alternative avenues of communication were assured. We
briefly reiterated in our 2005 decision that the intermediate
scrutiny standard was applicable (see 6 NY3d at 81).
The relation between the level of scrutiny and the
burden of proof to be met by the City may be explained as
follows. Intermediate scrutiny is a level of judicial review
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that applies to the overall determination as to whether a
government's purpose justifies a law, i.e., here whether the
zoning regulation is narrowly tailored to serve a substantial
governmental interest and allows for reasonable alternative
avenues of communication (see Renton, 475 U.S. at 47, citing Clark
v Community for Creative Non-Violence, 468 U.S. 288, 293 [1984];
City Council of Los Angeles v Taxpayers for Vincent, 466 U.S. 789,
807 [1984]); Heffron v International Society for Krishna
Consciousness, Inc., 452 U.S. 640, 647-648 [1981]). A court
conducting an intermediate scrutiny test (as with any level of
scrutiny) must reach legal determinations, as to the balancing of
interests, but the court must also assess the government's
factual or predictive judgments (see e.g. District of Columbia v
Heller, 554 U.S. 570 [2008]; Turner Broadcasting System, Inc. v
FCC, 520 U.S. 180 [1997]). For example, we had to determine in
Stringfellow's whether the 1995 Ordinance was indeed aimed at
combating negative secondary effects. Whether adult
establishments create negative secondary effects is such a
factual matter. So is whether the adult establishments retain an
ongoing predominant focus on sexually explicit activities and
materials. The question, then, is what burden of proof the
government must bear in such matters when the overall test is
intermediate scrutiny.
The United States Supreme Court has instructed that in
First Amendment cases applying intermediate scrutiny, a court's
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task, when reviewing a legislature's factual or predictive
judgments, is "to assure that, in formulating its judgments, [the
legislature] has drawn reasonable inferences based on substantial
evidence" (Turner Broadcasting System, Inc., 520 U.S. at 195; see
e.g. Abilene Retail No. 30, Inc. v. Bd. of Comm'rs of Dickinson
Cty., Kan., 492 F3d 1164, 1174 [10th Cir 2007], cert denied 552
U.S. 1296 [2008]). Indeed, the Supreme Court has remarked that
"substantiality is to be measured in this context by a standard
more deferential than we accord to judgments of an administrative
agency" because a legislature is best equipped "to amass and
evaluate the vast amounts of data bearing upon legislative
questions" (Turner Broadcasting System, 520 U.S. at 195 [internal
quotation marks omitted] [emphasis added]). Municipalities have
unique knowledge of local problems and suitable solutions. For
these reasons, we hold that the same deferential standard is
applicable under our state constitutional law to a municipality's
factual or predictive judgments in the adult use zoning context.
Our 2005 decision in this litigation applied the
appropriate standards. In discussing whether the City had met
its initial burden at the first stage of Alameda Books, this
Court noted that "a municipality's burden to prove that it has a
substantial interest in regulating a particular adult activity is
not a very heavy one" (6 NY3d at 80) and we quoted Justice
Kennedy's concurrence in Alameda Books, which stated that "very
little evidence is required" because generally "courts should not
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be in the business of second-guessing fact-bound empirical
assessments of city planners" (id., quoting Alameda Books, 535 U.S.
at 451 [Kennedy, J., concurring]). We ruled that given this
modest evidentiary burden, the City had satisfied its initial
"burden to justify a secondary-effects rationale for the City's
2001 Amendments" (6 NY3d at 81-82).
Then, in setting out what the City would have to show
at the third Alameda Books stage, we clearly implied that the
same evidentiary burden would apply. In particular, we required
evidence that "fairly support[s]" the conclusion that there is an
ongoing focus on the sexually explicit (id. at 84). The "fairly
support" language was drawn from Alameda Books, which stated
that, at the first stage of the three-part framework, a
municipality, seeking to show a relation between speech and a
government interest, "may rely on any evidence that is reasonably
believed to be relevant" (Alameda Books, 535 U.S. at 438 [internal
quotation marks omitted]), but cannot "get away with shoddy data
or reasoning," and must adduce evidence that "fairly support[s]
the municipality's rationale for its ordinance" (id.). We
further emphasized the modest burden placed upon the City at the
third stage by noting that the City need not "perform a formal
study or a statistical analysis, or . . . establish that it has
looked at a representative sample of 60/40 businesses in the
city" (6 NY3d at 84).
Our intent in 2005 was that the City, in demonstrating
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an ongoing focus on the sexually explicit, must meet the same
evidentiary burden at the third Alameda Books stage that it had
to meet at the first stage.
VII.
For these reasons, the Appellate Division, in the
decision on appeal, erred in stating that the City's modest
evidentiary burden related only to the first stage of Alameda
Books (see 131 AD3d at 289). The guidance delivered by the
Appellate Division to the trial court during this litigation
confused the ultimate standard of review or constitutional
scrutiny to be applied with the evidentiary burden borne by the
City. The Appellate Division noted in 2011 that "the City's
evidence is subject to intermediate scrutiny" (84 AD3d at 59 n
6), and instructed the trial court to "assess the City's evidence
in light of this somewhat heightened standard" (id. at 63).
Supreme Court interpreted this to mean "that the test was not one
of rational basis and substantial evidence, but the higher test
of intermediate scrutiny" (38 Misc 3d at 673-674).
The lower courts' discussions and applications of
intermediate scrutiny misconstrued the standard. There is no
conflict between intermediate scrutiny and application of a
modest burden of proof akin to substantial evidence. The trial
court's 2010 assessment of the City's evidentiary burden as "a
'light' one" (27 Misc 3d at 1089) was in fact correct, and it
erred in 2012 when it eschewed any standard such as substantial
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evidence and held the City to a higher burden of proof (see 38
Misc. 3d at 673-674). Properly understood, the trial court's task
was to decide whether the City had relevant evidence reasonably
adequate to support its conclusion that the adult establishments
retained a predominant, ongoing focus on sexually explicit
activities or materials.
The Appellate Division in the decision on appeal
exacerbated its earlier misguidance to the trial court by
applying a rigidly mechanical approach to the determination of
whether a predominant focus on sexually explicit entertainment
remained. This too was error. As the dissent observed, the
majority's four-prong checklist, with each factor weighing
equally, placed subsidiary considerations such as signage on
equal footing with the touchstone issue of emphasis on the
promotion of sexually explicit activities or materials.
Moreover, the Appellate Division counted factors that gave no
support either to the City's conclusion or to plaintiffs'
position (such as exclusion of minors by the topless clubs or
lack of a uniform practice on exclusion of minors by the adult
bookstores) as if they affirmatively counted against the City.
In addition, the Appellate Division's approach lost
sight of the fact that the issue was whether there was sham
compliance. A bookstore could very well engage in such a sham by
removing large signs, allowing minors to enter, and ensuring that
non-adult materials are accessible, and yet retain a focus on
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sexual materials. A store that stocks non-adult magazines in the
front of the store but contains and prominently advertises peep
booths is no less sexual in its fundamental focus just because
the peep booths are in the back and the copies of Time magazine
in the front. The same is true of the adult eating and drinking
establishments. A topless club is no less an adult establishment
if it has small signs and the adjoining comedy club, seating
area, or bikini bar is easy to access.
Additionally, since the City bore only a modest burden
of proof akin to substantial evidence, it was error for the
Appellate Division to assume that "satisfaction of one of the
factors" alone could not be "sufficient to meet the City's
burden" (131 AD3d at 293).
VIII.
Viewed in the proper light, the evidence and the
factual findings of the lower courts support only one conclusion:
that the City met its burden of showing continued focus on
sexually explicit activities and materials by the adult
bookstores and adult eating and drinking establishments.
The Appellate Division found that all but one of the
adult bookstores had peep booths for viewing adult films, with an
average of about 17 booths per store. Peep booths, by design,
obviously promote sexual activities. The Appellate Division
further found that all the bookstores used signage, displays, and
layouts to promote sexually focused adult materials and
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activities. In addition, as the trial court found, many of the
adult bookstores sold sex toys, adult novelties, and the like in
the nonadult sections of the stores. This evidence showed that
most of the adult bookstores predominantly emphasized the
promotion of sexual materials and activities.
Contrary to the Appellate Division, this substantial
evidence is in no way negated by the fact that the signs
promoting the peep booths were "not graphic" or the fact that
"there is no evidence that any of the stores have adult signs
that are larger than those of nearby nonadult businesses, or even
that the signs advertising adult content are large" (131 AD3d at
290). The very existence of signs advertising peep booths
indicates a continued sexual focus, regardless of their size. We
cannot accept the idea that there is something uniquely sexual
about "XXX" signs, as opposed to other signs advertising "Peep
Booths." Whether signs are garish has little bearing on whether
a business retains a sexual focus.
In short, the evidence credited by the Appellate
Division supports one conclusion alone: that the adult bookstores
continue to have a predominant focus on sexually explicit
materials and activities.
As to the adult eating and drinking establishments, the
Appellate Division found that, in all the clubs, "topless dancing
takes place at all times daily for approximately 16 to 18 hours a
day" and also that lap dances, a quintessentially sexual
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activity, were offered by dancers "in both public and private
areas of the club" (id. at 292). This evidence, without more,
adequately supported the conclusion that the topless clubs
retained a predominant sexual focus.
Ten's Cabaret and Pussycat Lounge argue that the City
has offered no evidence of the character of the topless clubs
before the 60/40 formula came into effect and has not met its
burden of showing a lack of transformation in the clubs'
character. However, this Court's 2005 decision ordered the trial
court to decide whether plaintiffs were predominantly sexual in
focus at the time of trial, and this task did not require the
City to adduce evidence as to their character in the past.
In short, once the standard is clarified, it is evident
as a matter of law that the City met its burden of showing that
the adult establishments continued to have a predominant focus on
sexually explicit materials and activities. It follows that the
2001 Amendments are facially constitutional.3
IX.
In the alternative, Ten's Cabaret and Pussycat Lounge
3
We have considered plaintiffs' remaining arguments, and
conclude that they lack merit. We decline to accept the
invitation of plaintiffs and amicus First Amendment Lawyers
Association to reconsider our 2005 decision in this case. We
note, however, that there is no inconsistency between that
opinion and Justice Kennedy's analysis of the relation between
speech and secondary effects in his Alameda Books concurrence
(see Alameda Books, 535 U.S. at 449-450 [Kennedy, J., concurring];
see also Ben's Bar, Inc v Village of Somerset, 316 F3d 702,
721-722 [7th Cir 2003]).
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contend that the 2001 Amendments, as applied to them, are
unconstitutional. In essence, the two companies argue that
regardless of whether some of the other topless clubs inspected
by the City continued to focus on sexual activities, they did
not, insofar as they became hybrid entities, including
independent nonadult clubs serving different clientele adjacent
to the adult entertainment. As the City points out, however, the
as-applied challenge was not raised on the prior appeal (see 6
NY3d 63) and is not now reviewable (see New York Tel. Co. v
Supervisor of Town of Oyster Bay, 35 AD3d 417, 418 [2d Dept
2006]; Katz v City of New York, 231 AD2d 448, 448 [1st Dept
1996]; see also Martin v Cohoes, 37 NY2d 162, 165-166 [1975]).
Accordingly, the order of the Appellate Division should
be reversed, without costs, and judgment granted in favor of the
City of New York in accordance with this opinion.
* * * * * * * * * * * * * * * * *
Order reversed, without costs, and judgment granted in favor of
the City of New York in accordance with the opinion herein.
Opinion by Judge Fahey. Judges Rivera, Stein, Garcia and Wilson
concur. Chief Judge DiFiore took no part.
Decided June 6, 2017
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