Summary
noting that the City of New York had clarified that a "substantial portion" for purposes of its adult-business ordinance meant at least forty percent
Summary of this case from 84 VIDEO/NEWSSTAND, INC. v. SARTINIOpinion
Argued November 16, 1999
Decided December 20, 1999
Appeal, by permission of the Court of Appeals, Appellate Division of the Supreme Court, First Judicial Department, (Stephen G. Crane, J.), New York County.
Herald Price Fahringer and Erica T. Dubno for appellants. Grace Goodman and Larry A. Sonnenshein for respondents.
In Stringfellow's of New York v. City of New York ( 91 N.Y.2d 382), we held that New York City's amended zoning resolution regulating adult establishments did not violate their constitutional rights of free expression. This case arises out of New York City's enforcement of that zoning resolution. The issue is whether the courts below employed the proper definition of "stock" as used in the City's administrative guidelines interpreting the zoning resolution. We conclude that the lower courts' interpretation of "stock" included considerations beyond what the City's guidelines provide and reverse.
The City commenced this action against Les Hommes, a Manhattan book and video store catering to the gay male community, and its owner to abate an alleged nuisance based on a violation of its zoning resolution (see, Admin. Code of the City of N.Y. §§ 7-703[k], 7-714). Under that resolution, in order to qualify as an "adult establishment" a "substantial portion" of the business must include, as relevant here, an "adult book store * * * adult theater, or other adult commercial establishment or any combination thereof" (Amended Zoning Resolution, City of New York § 12-10 [Definition of "Adult Establishment"]). To qualify as an "adult book store," a business must have 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 those are defined in the resolution (id.).
The City's zoning resolution further directs that in determining whether a book store has reached the "substantial portion" threshold, the following factors "shall be considered": "(1) the amount of such [adult] stock accessible to customers as compared to the total stock accessible to customers in the establishment; and (2) the amount of floor area and cellar space accessible to customers containing such stock; and (3) the amount of floor area and cellar space accessible to customers containing such stock as compared to the total floor area and cellar space accessible to customers in the establishment" (id. [italics in original]).
In response to an inquiry as to what constitutes a "substantial portion," the City Department of Buildings issued Operations Policy and Procedure Notice (OPPN) #4/98, and several weeks later superseded it with OPPN #6/98. Both imposed similar guidelines "to clarify the meaning of the phrase `substantial portion'" (N.Y.C. Dept. of Buildings, Operations Policy and Procedure Notice #6/98 [August 13, 1998]). With respect to "adult establishments" generally, if "at least 40 percent of the floor and cellar area that is accessible to customers [is] available for adult use," then a "substantial portion" of the business is devoted to adult use within the zoning resolution. In any event, if "10,000 or more square feet of a commercial establishment * * * is occupied by an adult use, the commercial establishment is deemed to be an `adult establishment' regardless of the overall size of the establishment" (id.).
With regard to book stores particularly, "[i]f at least 40 percent of the book store's total stock accessible or available (`accessible') for sale or rent to customers is comprised of adult materials, then the book store has a `substantial portion' of its stock in adult materials * * *" (id.). Furthermore, "[a]n establishment also includes an adult book store if 40 percent of the establishment's floor area and cellar space accessible to customers contains stock in adult materials" (id.).
The City's zoning resolution became enforceable on July 28, 1998, when the United States Supreme Court denied an application for a stay in a related case, ending a series of stays that had been in effect to that date (see, Amsterdam Video, Inc. v. City of New York, 146 F.3d 99 [2d Cir], request for stay denied, 119 S Ct 4,cert denied sub nom Hickerson v. New York City, 119 S Ct 795). Shortly thereafter, the City brought this action by order to show cause and sought a preliminary injunction, enjoining Les Hommes from using the premises as an "adult establishment."
After several days of hearings involving attempts by Les Hommes to comply with the zoning resolution, Supreme Court refused to grant a preliminary injunction. The court determined that with regard to its front room, Les Hommes had increased its stock of non-adult videos to comply with the 60:40 formula. With regard to the back room, which comprised rows of video booths with closing doors as well as two mini-theater areas with movie screens and viewing areas, the court determined that the City had met its burden of establishing that the video booths were showing adult videos, but that the exhibition of non-adult videos in the mini-theaters "ha[d] been confirmed by city inspectors" (City of New York v. Les Hommes, Order on motion for preliminary injunction, Slip Opn at 22, Index No. 402704/98 [with two related actions Nos. 402702/98 402703/98] [August 28, 1998]). Although the court was concerned the movies shown in the mini-theaters "could change overnight," the "potential of recidivism alone" did not mean that the City had met its burden of proving the need for a preliminary injunction.
The case then proceeded to trial on the issue of a permanent injunction. After several additional days of testimony, the court's findings of fact regarding the amount of stock dedicated to adult use remained the same. It determined that only 24% of Les Hommes's stock consisted of adult videos. However, several considerations, in the court's view, compelled the conclusion that Les Hommes was an "adult establishment." Regarding the videos, it was significant to the court that the non-adult videos were offered only for sale, not for rent. That fact along with the "terribly stable volume of non-adult videos" that had "been supplemented only modestly" in several months, meant that compliance with the City's guidelines had only been "facial" and was done "to make a formalistic compliance with the 60/40 ratio." In essence, the court considered compliance to be a "sham, which meant that the non-adult videos could not be considered "stock." As a result, the court permanently enjoined defendants from operating the premises for the purposes of conducting an adult use, with the proviso that defendants could apply to modify the judgment upon certain specified conditions.
The Appellate Division affirmed, agreeing with Supreme Court that the sale by Les Hommes of the non-adult videos was a sham and that Les Hommes "in its true aspect remains a non-conforming adult video establishment." The court stated that because the presence of the non-adult videos did not affect the "essential nature" of Les Hommes as an adult video store, the entire front room was dedicated to adult stock and concluded that Les Hommes was an "adult establishment." This Court granted defendants leave to appeal, and we reverse.
We agree with defendants that the definition of "stock" as used in the City's administrative guidelines does not include inquiry into whether a video is offered solely for sale or whether the inventory of such videos is stable, constantly supplemented or profitable. The City's own guidelines interpret the zoning resolution literally. Nowhere in the operative OPPN #6/98 are factors other than amount of stock and floor space mentioned. Instead, the focus is solely on the appropriate percentages of stock and floor and cellar space, and the City drew these at 40%. As a result, the City's guidelines provide no support for the view that profitability or stability of the non-adult stock need be considered.
The cases guiding our analysis in this area require that we show a healthy respect for the plain language employed and that it be construed in favor of the property owner and against the municipality which adopted and seeks to enforce it (see, Matter of Raritan Development Corp. v. Silva, 91 N.Y.2d 98, 103; Matter of Allen v. Adami, 39 N.Y.2d 275, 277; Thomason Ind., Inc. v. Village of Port Washington North, 27 N.Y.2d 537, 39; 440 East 102nd Street Corp. v. Murdock, 285 N.Y. 298, 304). Given the City's precise guidelines, we cannot cast a wider net to capture unspecified considerations such as whether non-adult stock is stable or unprofitable. The lower courts improperly injected these considerations into the mix, even though the City's guidelines admit no such impediments to compliance.
There may indeed be situations where what a store is selling or renting cannot be considered stock under the City's guidelines. To the extent that the lower courts recognized this limitation, we would agree with them. Nonetheless, nothing in this record indicates that the non-adult videos sold by Les Hommes were not "stock." The testimony was clear that the non-adult videos were prominently displayed on racks in the front of the store. Also, there can be little question that these videos were accessible and available. No evidence indicated that these videos could not be purchased upon demand. Indeed, 52 of these videos had been bought over several months. Reliance on a sale versus rental distinction was error. The administrative guidelines treat sales and rentals in the same way.
In the end, we must enforce the City's administrative guidelines as written. Either the stock is accessible or available, or it is not; either the appropriate amount of square footage is dedicated to non-adult uses, or it is not. Questions about whether the owner of Les Hommes had a good faith desire to sell non-adult products, whether the "essential nature" of Les Hommes is adult or non-adult, or whether the volume of non-adult stock is stable or profitable are not part of the inquiry here, where we are only called upon to determine whether items are accessible or available as stock. We cannot rewrite the City's guidelines to include these additional considerations.
We need not and do not address appellant's remaining contentions.
Accordingly, the order of the Appellate Division should be reversed, with costs, and the complaint dismissed.
Order reversed, with costs, and complaint dismissed. Opinion by Judge Ciparick. Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Wesley and Rosenblatt concur.