Court of Appeals April-May Session: Arguments of Interest for April 27, 2017

The Court of Appeals’ April-May Session road trip to Westchester County concludes on Thursday, April 27th with three cases on the argument docket (the Court of Appeals’ case summaries can be found here). The Court will address the following issues: (1) whether a criminal defendant is entitled to an adverse inference instruction against the People where the police lost a video recording of the alleged shooting, even though two witnesses who viewed the video before it was lost testified that it did not show the shooter; (2) whether a criminal defendant is entitled to a reconstruction hearing after the court reporter from trial resettles the transcript because she mistakenly typed that the trial judge charged the jury that second degree murder was an “unintentional” crime; and (3) whether a New York City zoning amendment concerning adult entertainment uses violated the free speech rights of the businesses.

No. 59             For the People Theatres of N.Y., Inc. v City of New York

How much of a business must be devoted to sex-related goods or entertainment before it is subject to zoning regulations for adult entertainment uses? Is it like pornography?  Do you know it when you see it?  In New York City, the City’s original Adult Use Zoning Ordinance said that if a “substantial portion” of a business was devoted to sex-related merchandise or entertainment, that was enough.  But what is a “substantial portion”?

Having no idea whether they were subject to the ordinance, owners of adult businesses challenged the City’s Adult Use Zoning Ordinance as unconstitutionally vague more than 15 years ago. In response, the City adopted the “60/40 rule,” which provided that a business was not subject to the adult use zoning regulations if less than 40 percent of its floor space was devoted to adult entertainment or products.  So, adult businesses reconfigured their floor space to fall under the 40 percent threshold.

In 2001, believing that the adult business owners’ response was nothing more than a sham to avoid regulation, the City amended the Adult Use Zoning Ordinance again, this time to provide that adult businesses were regulated if any portion of their businesses were devoted to adult entertainment or products. In 2005, the Court of Appeals rejected the business owners’ facial challenge to the amendments to the Adult Use Zoning Ordinance. See For the People Theatres v City of New York, 6 NY3d 63 (2005).  The Court held, however, that a triable issue of fact existed whether the 60/40 businesses, as the reconfigured adult businesses were called, were so transformed that they no longer presented the same deleterious effects on the surrounding neighborhood and the amendments, therefore, violated the businesses’ free speech rights.  If not, the City could prevail on its “sham” reconfiguration argument and the amendments would withstand constitutional scrutiny.

Following trial, Supreme Court held that the City’s zoning amendments violated the State and Federal Constitutions because the 60/40 businesses no longer resembled the original adult uses that City sought to regulate. Because the sexual aspects of the businesses no longer predominated the uses, the Court held that the City’s zoning amendments impaired the businesses’ free speech rights.

In a 3-2 decision, the Appellate Division, First Department affirmed. The majority reasoned that, although the businesses plainly still sold adult goods and entertainment, the less graphic nature of their signage, the ease of access to non-adult goods, and the lack of restrictions on minors showed that the adult aspects of the businesses did not predominate.  The dissenters, however, weren’t buying it.  They would have held that the City established that the reconfiguration of the 60/40 businesses were a mere sham because the essential character of the adult businesses hadn’t changed, even though their physical spaces had.

The Court of Appeals will now be asked to decide. How much of a business must be devoted to the sale of adult goods and entertainment before it can be regulated different under a municipality’s zoning laws as an adult use?  Is it a single adult good?  Must the adult aspects of the business predominate?

The Appellate Division, First Department’s decision is here.

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