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
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
"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
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
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