First Amendment topicsAbout the First Amendment
News Story
N.Y. appeals court rules NYC can close most sex businesses

By The Associated Press

Editor's note: Lawyers for sex-oriented businesses won a stay on April 13 of the ruling that could allow closure of most adult businesses in the city. Justice Eugene Nardelli of the Appellate Division granted the stay after receiving requests from the businesses' lawyers to take the case to the Court of Appeals in Albany, said Herald Price Fahringer, one of the attorneys. Fahringer said the stay by Nardelli, the judge who wrote the ruling that favored the city's crackdown on sex-oriented businesses, bars the city from acting until a full five-judge panel decides whether they can appeal higher.

NEW YORK — A state appeals court in Manhattan said yesterday that the city acted legally when it toughened zoning rules so that it could close sex-oriented "adult" bookstores, movie theaters and topless bars.

The Supreme Court's Appellate Division held in a 4-0 decision that the city's control of land and property use was "a proper exercise of the police power to advance the public health, safety and welfare."

Lawyers for the businesses said the ruling, which reversed a lower court decision, means most will have to close or convert to non-sex operations.

The lawyers said they would try to get the ruling stayed today, and then take the case to the state’s highest court, the Court of Appeals, in Albany. The decision would likely take effect immediately if the lawyers failed to get a stay.

"I'm disappointed but not surprised by the decision," said lawyer Mark Alonso, who represents Ten's Cabaret Inc., one of the plaintiffs. "This is just part of a trend to eviscerate the First Amendment."

Herald Price Fahringer, who represents about 100 of the businesses, called the ruling "frightening." He said "perfectly legitimate sources of expression — movies, bookstores, even theaters — could be eliminated under this ruling."

Mayor Michael Bloomberg applauded the decision. He said it removed a "loophole that allowed strip clubs and porn shops to operate as freely as drugstores and supermarkets."

"Strip clubs and pornographic book and video stores don't belong in our residential neighborhoods, and they don't belong next to our schools, places of worship, and daycare centers anywhere in the City," the mayor said.

The city's crackdown began in the mid-1990s after it concluded, on the basis of studies from several large cities around the country, that adult-entertainment businesses increase crime and reduce property values on surrounding areas.

In 1995, the city passed what was called the "60-40" ordinance. It banned adult businesses from certain sites and required that more than 60% of the businesses' floor space be used for non-sex-oriented purposes.

The sex businesses sued, saying the city enacted its laws without local environmental-impact studies and used irrelevant studies from other places. They also said the city had violated their constitutional right to free expression.
Meanwhile, many of the businesses exploited the ordinance's loopholes. The city, claiming "sham" compliance, responded in 2001 by amending the law to make almost all adult businesses in the city illegal.

The owners of more than 100 adult businesses sued and the city lost. The change would have caused all but about 35 adult businesses to close. Those 35 are in parts of the city zoned for adult entertainment.

Yesterday, the appeals court wrote that the zoning amendments "will be upheld if there is a reasonable relationship between the end sought to be achieved and the means adopted to achieve it."

The city's evidence "supports its rationale for the amendments," the court wrote, adding that the plaintiffs failed to furnish sufficient evidence in opposition.

Adult businesses can petition N.Y. high court
Appeals court: Sex shops may pursue reversal of ruling that found NYC acted legally when it changed zoning laws to make it easier to shut down such businesses. 06.17.05

NYC can't toughen rules on sex shops
Trial judge says attempt to regulate content of businesses was 'facially unconstitutional' unless city could show a need to combat negative effects on the community. 09.11.03


Adult entertainment overview

Adult bookstores

News summary page
View the latest news stories throughout the First Amendment Center Online.

print this   Print

Last system update: Thursday, August 21, 2008 | 17:22:48
About this site
About the First Amendment
About the First Amendment Center
First Amendment programs
State of the First Amendment

First Reports
Supreme Court
First Amendment publications
First Amendment Center history
Freedom Sings™
First Amendment

Congressional Research Service reports
Guest editorials
FOI material
The First Amendment

Lesson plans
Contact us
Privacy statement
Related links