Adult Businesses Seek Injunction Against Being Zoned Out In NYC

NEW YORK CITY—The latest phase of Big Apple adult businesses’ fight against the city’s oppressive zoning laws—a fight that’s been going on for more than 20 years—entered a new phase today when First Amendment attorneys Erica Dubno, John Weston, Dan Silver, Ed Rudofsky, Randy Garrou and Jennifer Kinsley filed motions for preliminary injunctions against enforcement of the city’s Amended Zoning Resolution, which was enacted in 2001 but has been stayed pending other legal actions. Among the plaintiffs are various adult cabarets and bookstores, which once numbered 177 in 1993, but which number has been reduced to just 20 today, serving the city’s entire five boroughs—and almost all of them are under legal fire.

Dubno’s client is a video store, The Erotica, located at 336 Eighth Avenue at 27th Street, and which has been in business since 2014, and which features 10 viewing booths for its adult customers. When The Erotica opened, the New York Supreme Court (which in the New York judicial system is the trial-level court) had already declared the city’s Amended Zoning Resolution unconstitutional—a ruling which remained in effect until June 6, 2017, when it was overturned by the New York Court of Appeals, though the city agreed to stay enforcement of the zoning law pending a further legal appeal to the U.S. Supreme Court. However, the high court denied certiorari on February 20, 2018, leaving the city’s remaining adult stores in legal limbo.

Dubno’s current lawsuit recounts the entire history of New York City’s attempts to minimize and marginalize its adult-oriented businesses, including a rule which required stores to have less than 40 percent adult stock to avoid the “adult” label—dubbed the “60/40 rule”—and specifically dissects the 2001 resolution’s hair-splitting definitions and requirements to prevent adult businesses from operating in specified areas, which include certain business and residential zones as well as a 500-foot “set-back” from “sensitive uses” such as schools and churches.

Among the minutiae that would define a business as adult: “A method of operation which requires customer transactions with respect to ‘other printed or visual material’ to be made in an area of the store which includes ‘adult printed or visual material’,” not to mention, “A method of operation under which ‘other printed or visual material’ is offered for sale only and ‘adult printed or visual material’ is offered for sale or rental.” Other clauses of the Amendment deal with the amount of adult material versus non-adult, what’s displayed in the store’s window, and how its signage reads.

“Thus, even if a bookstore devotes less than 40 percent of its stock and floor space to adult material, all of its non-adult stock is completely disregarded and deemed to be a sham if, for example, the establishment has Booths where adult movies are available for viewing by customers,” Dubno notes in her complaint.

The result? Of the 20 to 25 remaining adult bookstores with booths, “Upon information and belief, virtually no bookstores with Booths are located within permissible areas for ‘adult establishments’ under the Amended Zoning Resolution. Upon information and belief there are only two bookstores with Booths in areas where exclusively adult establishments are allowed to operate (‘Permissible Areas’), in the entire City of New York.”

That’s two bookstores to serve New York City’s entire 304.6 square miles and roughly 8.6 million residents!

And that’s the primary basis of Dubno’s and the other attorneys’ lawsuits: They’ve essentially been “zoned out” of New York’s five boroughs—and that’s illegal.

Dubno and the other attorneys have filed what’s known as a “1983 action,” after Section 1983 of Title 42 of the U.S. Code, which bars deprivation of rights under color of law.

“It’s basically a v*******n of a civil rights statute,” Dubno explained, “so we’re not claiming official misconduct; what we’re claiming is that under color of law, they v******d our clients’ constitutional rights.”

“The Amended Zoning Resolution violates the First and Fourteenth Amendments to the United States Constitution because it does not provide for reasonable alternative avenues of communication,” Dubno’s lawsuit charges. “The percentage of available space—which was extremely limited in the first place—has been significantly curtailed and reduced in the 22 years since 1995… To pass constitutional muster under the First Amendment there must be ample space available for adult uses after the rezoning. Enforcement of the ordinance must neither substantially reduce the total number of adult outlets nor significantly reduce the accessibility of those outlets to their potential patrons. In enacting the 2001 Resolution the City offered no additional locations for businesses displaced by the Amended Zoning Resolution. To the contrary, the City acknowledged that ‘[s]ince 1995, there have been 13 changes in the zoning map which have rezoned certain areas where adult uses had been permitted. These map changes have reduced the amount of unencumbered land area available to adult establishments by about 200 acres.'”

In fact, Dubno hired a city planner to draw up a map of the five boroughs showing the areas where adult businesses allegedly could be located—some of which have no existing infrastructure, and others of which have existing businesses which would not want to sell out (or even rent out) the premises to adult businesses.

“In the last 17 years, many, many, many of the areas that they said were permissible for adult uses are no longer available,” Dubno told AVN. “For example, the city has completely rezoned large portions of Staten Island and other areas that were previously manufacturing zones and now they are no longer manufacturing zones; now they  allow residences or they allow commercial use, but the kind of commercial use that we’re excluded from being. So the bottom line is, adult businesses can’t be located there.”

So, a zone-out?

“Absolutely; it’s basically zoning out free expression,” she agreed. “And that’s obviously a concern to us. There are three separate, parallel-but-related lawsuits that were brought by the cabarets, and even though we have differing interests, specific interests, we also have one common objective, which is to show that there are not sufficient locations for businesses to be located, and specifically this will really hurt the places with booths, because the city is not going to allow—you still can technically comply with most aspects of the 60/40 rule in other locations, but booths are going to be barred from virtually all areas of the city except for the limited places where they’re allowed to be located, which have now been rezoned out.”

It’s certainly a fight that most NYC-based adult businesses never thought they’d have—after all, in 304 square miles, one would think there’d be plenty of areas where an adult business could locate—but now they’re hunkering down for a fight that will likely take years to resolve, but which should end with a decision in their favor, as it has in so many other municipalities that have attempted similar zone-outs.

Pictured: Erica Dubno

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