Reproduced on Recycled Paper APL-2015-00273 To be argued by: RICHARD DEARING 15 minutes requested Court of Appeals State of New York FOR THE PEOPLE THEATRES OF N.Y., INC., d/b/a FAIR THEATRE, Plaintiff, JGJ MERCHANDISE CORP., d/b/a VISHANS VIDEO a/k/a MIXED EMOTIONS, Plaintiff-Respondent, against THE CITY OF NEW YORK, HON. MICHAEL R. BLOOMBERG, as Mayor of the City of New York, AMANDA M. BURDEN, as Director of City Planning, Department of City Planning of the City of New York, and PATRICIA J. LANCASTER, as Commissioner of Buildings, Department of Buildings of the City of New York, Defendants-Appellants. (Second Caption on Inside Cover) BRIEF FOR APPELLANTS RICHARD DEARING ELIZABETH S. NATRELLA INGRID R. GUSTAFSON of Counsel July 28, 2016 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Appellants 100 Church Street New York, New York 10007 Tel: 212-356-2500 or -0853 Fax: 212-356-2508 igustafs@law.nyc.gov ii TEN’S CABARET, INC., f/k/a STRINGFELLOW’S OF NEW YORK, LTD., PUSSYCAT LOUNGE, INC., d/b/a “PUSSYCAT LOUNGE,” CHURCH STREET CAFÉ, INC., d/b/a “BABY DOLL,” and 62-20 QUEENS BLVD., INC., d/b/a “NICKELS,” Plaintiffs-Respondents, against THE CITY OF NEW YORK, MAYOR MICHAEL BLOOMBERG, as Mayor of the City of New York, and PATRICIA LANCASTER, as Commissioner of the Department of Buildings of the City of New York, Defendants-Appellants. TABLE OF CONTENTS Page i TABLE OF AUTHORITIES ........................................................ iii PRELIMINARY STATEMENT ................................................... 1 QUESTION PRESENTED ........................................................... 4 STATEMENT OF THE CASE ..................................................... 4 A. Background to This Court’s 2005 Decision .................. 5 1. The City’s 1995 adult use zoning regulations .......... 5 2. The City’s 2001 adult use amendments .................... 8 3. These two lawsuits ................................................... 14 B. This Court’s 2005 Remand for a Hearing on a Limited Issue ............................................................... 15 C. The Evidence on Remand ............................................ 18 1. The continued predominant sexual focus of the book and video stores in People Theatres ............... 19 2. The continued predominant sexual focus of the topless bars in Ten’s Cabaret ................................... 26 D. The Supreme Court’s Decisions First Upholding, then Later Striking Down, the Amendments............. 33 E. The Appellate Division’s Affirmance in a Split 3-2 Decision. ....................................................................... 36 JURISDICTIONAL STATEMENT ............................................ 38 TABLE OF CONTENTS (cont’d) Page ii ARGUMENT AS A MATTER OF LAW, THE CITY CARRIED ITS BURDEN TO PRESENT EVIDENCE “FAIRLY SUPPORTING” THE LEGISLATIVE JUDGMENTS UNDERLYING THE AMENDMENTS ............................ 39 A. The Lower Courts Applied the Wrong Standard and Substituted Their Judgment for the City Council’s. .. 42 B. The Appellate Division’s Own Reasoning Should Have Resulted in Judgment for the City. ................... 52 C. The Undisputed Evidence Adduced at Trial Also Satisfied the City’s Burden as a Matter of Law. ........ 61 1. The City’s evidence fully supported its legislative judgment that the businesses were predominantly sexually focused. ............................. 62 2. Plaintiffs’ evidence in no way undermined the credibility of the City’s evidence. ............................. 67 D. There Is No Viable As-Applied Challenge Before This Court in Ten’s Cabaret. ....................................... 73 CONCLUSION ........................................................................... 81 TABLE OF AUTHORITIES Page(s) iii Cases Abilene Retail # 30, Inc. v. Bd. of Comm’rs, 492 F.3d 1164 (10th Cir. 2007) ................................................... 47 Buzzetti v. City of New York, 140 F.3d 134 (2d Cir. 1998), cert. denied, 525 U.S. 816 ................................................................................................. 9 City of New York v. Dezer Props., Inc., 95 N.Y.2d 771 (2000) (1st Dep’t 1999) ....................................... 10 City of New York v. Les Hommes, 94 N.Y.2d 267 (1999) .................................................................. 10 City of New York v. Stringfellow’s of N.Y., Ltd., 96 N.Y.2d 51 (2001) .............................................................. 10, 58 Ctr. for Fair Pub. Policy v. Maricopa Cnty., 336 F.3d 1153 (9th Cir. 2003) ..................................................... 47 Entm’t Prods., Inc. v. Shelby Cnty., 721 F.3d 729 (6th Cir. 2013)................................................. 47, 73 Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546 (5th Cir. 2006)................................................. 47, 72 Fantasyland Video, Inc. v. Cnty. of San Diego, 505 F.3d 996 (9th Cir. 2007)....................................................... 46 For the People Theatres of N.Y., Inc. v. City of New York, 131 A.D.3d 279 (1st Dep’t 2015) ............................... passim For the People Theatres of N.Y., Inc. v. City of New York, 20 A.D.3d 1 (1st Dep’t 2005) ............................................. 74 TABLE OF AUTHORITIES (cont’d) Page(s) iv For the People Theatres of N.Y., Inc. v. City of New York, 27 Misc. 3d 1079 (Sup. Ct., N.Y. Co. 2010) ................ 14, 33 For the People Theatres of N.Y., Inc. v. City of New York, 6 N.Y.3d 63 (2005) ..................................................... passim For the People Theatres of N.Y., Inc. v. City of New York, 38 Misc. 3d 663 (Sup. Ct., N.Y. Co. 2012) ................ passim For the People Theatres of N.Y., Inc. v. City of New York, 84 A.D.3d 48 (1st Dep’t 2011) ..................................... 15, 34 G.M. Enters. v. Town of St. Joseph, 350 F.3d 631 (7th Cir. 2003) ........................................... 46, 48, 51 H & A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007) ....................................................... 46 Hart Book Store, Inc. v. Edmisten, 612 F.2d 821 (4th Cir. 1979) ....................................................... 63 Hickerson v. City of New York, 146 F.3d 99 (2d Cir. 1998), cert. denied, 525 U.S. 1067 (1999) .................................................................................... 9 Imaginary Images, Inc. v. Evans, 612 F.3d 736 (4th Cir. 2010) ....................................................... 51 Independence News, Inc. v. City of Charlotte, 568 F.3d 148 (4th Cir. 2009) ................................................. 76, 78 Katz v. City of New York, 231 A.D.2d 448 (1st Dep’t 1996) ................................................. 75 Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (Kennedy, J., concurring) .................. passim TABLE OF AUTHORITIES (cont’d) Page(s) v N.W. Enters. Inc. v. City of Houston, 352 F.3d 162 (5th Cir. 2003)....................................................... 49 N.Y. Tel. Co. v. Supervisor of Oyster Bay, 35 A.D.3d 417 (2d Dep’t 2006), lv. denied, 8 N.Y.3d 808 (2007) .................................................................................... 75 New York v. Ferber, 458 U.S. 747 (1982) ..................................................................... 77 Ocello v. Koster, 354 S.W.3d 187 (Mo. 2011) ......................................................... 45 Peek-a-Boo Lounge of Bradenton, Inc. v. Manatee Cnty., 337 F.3d 1251 (11th Cir. 2003) ................................................... 47 Peek-a-Boo Lounge of Bradenton, Inc. v. Manatee Cnty., 630 F.3d 1346 (11th Cir. 2011) ................................................... 46 Richland Bookmart, Inc. v. Knox Cnty., 555 F.3d 512 (6th Cir. 2009)........................................... 46, 76, 78 Stringfellow’s of N.Y., Ltd. v. City of New York, 91 N.Y.2d 382 (1998) .......................................................... 4, 9, 43 Town of Islip v. Caviglia, 73 N.Y.2d 544 (1989) ...................................................... 60, 72, 80 World Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004) ..................................................... 46 Constitutional Provisions and Statutes N.Y. Const., Art. VI, § 3(b)(1) .......................................................... 39 N.Y. Const., Art. 1, § 8 .................................................................... 42 N.Y. CPLR 5601(a) .......................................................................... 39 TABLE OF AUTHORITIES (cont’d) Page(s) vi N.Y. CPLR 5601(b)(1) ...................................................................... 39 N.Y. Penal Law §§ 235.20-24 .......................................................... 25 Other Authorities Arthur Karger, Powers of the New York Court of Appeals (3d ed. 2005) .................................................................. 39 N.Y.C. Dep’t of Bldgs., Operation Policy & Procedure Notice 6/98 (1998) ......................................................................... 8 N.Y.C. Zoning Resolution ............................................ 7, 8, 12, 13, 14 PRELIMINARY STATEMENT In two key decisions in 1998 and 2005, this Court upheld the constitutionality of the New York City Council’s original adult use zoning regulations for adult businesses such as topless clubs and triple-X video stores. In its latter decision, it also confirmed that the City had satisfied its prima facie burden to support the constitutionality of the City Council’s 2001 amendments to those regulations based on the City’s enforcement experience. That experience had revealed widespread circumvention of the original regulations as a result of the mechanical administrative test employed under the prior regulations and thus the effective negation of the City Council’s original intent. The latter decision also framed the narrow inquiry now to be resolved, holding that the responsive submissions of the plaintiff businesses, which are classified as “adult” under the 2001 amendments, warranted further proceedings to ensure that relevant evidence supported the legislative judgments underlying the amendments. The City Council’s central legislative determination in adopting the amendments was that the former 2 “60/40 test,” under which businesses with less than 40 percent of their stock and floor space devoted to sexually explicit materials or activities were deemed “non-adult,” needed to be supplemented and refined. The City Council sought to capture the adult businesses originally targeted and to close opportunities for evasion of the regulations that both pre-existing and new adult businesses were exploiting to operate in locations not permitted for adult establishments. The question here, as defined by this Court, is whether relevant evidence fairly supported the City Council’s judgment that “60/40” businesses covered by the amendments retained an ongoing, predominantly sexual focus or, phrased differently, that mere compliance with the 60/40 formula had not so fundamentally transformed those establishments that they no longer resembled the targeted adult businesses. Although the inquiry framed was narrow, an arduous path through the lower courts ensued. At two five-day trials held seven years ago, the City called numerous witnesses and entered dozens of exhibits into evidence. The City’s extensive evidence-virtually all of it undisputed-showed that the City had reasonably 3 concluded that businesses considered adult under the 2001 amendments, though in technical compliance with the 60/40 formula, retained a predominantly sexual focus and thus were similar in relevant respects to the businesses covered by the City’s pre-amendment regulations. The New York County Supreme Court (York, J.) initially so held, but later reversed course and struck the amendments down. In a split 3-2 decision, the Appellate Division, First Department, affirmed. This Court should reverse. The lower courts failed to follow the Court’s 2005 decision: they applied the wrong standard of review, improperly heightened the City’s burden of proof, and failed to accord appropriate deference to the City Council’s well- supported legislative judgments. The Appellate Division majority, for example, explicitly found that the City had adduced evidence that supported its legislative judgment on predominant sexual focus-the touchstone issue on remand. Yet that court struck down the amendments anyway, reaching a different policy judgment based on multi-factor checklist of its own devising. This Court was clear in 2005 that the City was entitled to judgment as 4 a matter of law if it could satisfy its burden on remand. Having found that the City did so, the Appellate Division was required to enter judgment as a matter of law in the City’s favor. At bottom, as this Court recognized long ago and again in its 2005 decision, local lawmakers are best positioned to understand complex and important issues relating to the quality of urban life, and it is their reasonable policy judgments that should control, so long as they are adequately supported. This Court should reaffirm these important principles and uphold the City’s amendments. QUESTION PRESENTED Should this Court reverse and uphold the City’s 2001 amendments, where: (1) the Appellate Division recognized that the City had satisfied the narrow burden delineated by this Court, but nonetheless substituted its judgment for the City Council’s, and (2) a review of the undisputed evidence shows that the City satisfied its burden of proof as a matter of law? STATEMENT OF THE CASE Although the issue now before this Court is narrow, the history of the City’s adult use zoning regulations-and of these two lawsuits-is lengthy. The key milestone is this Court’s 2005 5 decision holding that the City had satisfied its prima facie burden to show the constitutionality of the 2001 amendments and framing the narrow question for remand. See For the People Theatres of N.Y., Inc. v. City of New York, 6 N.Y.3d 63 (2005). In light of that decision, as well as the Court’s earlier one upholding the City’s initial adult use zoning regulations, see Stringfellow’s of N.Y., Ltd. v. City of New York, 91 N.Y.2d 382 (1998), the City presents a condensed history of its regulations and this litigation. A. Background to This Court’s 2005 Decision 1. The City’s 1995 adult use zoning regulations In the 1980s and early 1990s, the number of sexually oriented businesses in the City mushroomed (PA939).1 In response to concerns about these businesses’ negative social consequences on nearby neighborhoods-typically called “negative secondary effects”-the City’s expert land use agency, the Department of City Planning (“DCP”), completed an Adult Entertainment Study 1 Citations in parentheses preceded by “PA” refer to pages in the People Theatres Appendix, and citations in parentheses preceded by “TR” refer to pages in the Ten’s Cabaret Record on Appeal. 6 in 1994 (PA936-1027). The DCP Study focused on three types of sexually oriented businesses: (1) adult book and video stores; (2) topless or nude bars and clubs; and (3) adult theaters (PA948). It concluded that these businesses are linked to increased crime, diminishing property values, reduced shopping and commercial activity, deteriorating neighborhood character, and a perceived decline in the quality of urban life (PA1012-14). After DCP applied for an amendment to the City’s Zoning Resolution (“ZR”), the New York City Planning Commission (“CPC”) held public hearings and ultimately approved DCP’s application.2 The CPC was clear about which businesses were intended to be covered by the proposed amendments: businesses “with a predominant, on-going focus on sexually explicit materials or activities” (1995 CPC Report at 49).3 The CPC was also clear 2 One of DCP’s responsibilities is to provide technical support to the CPC, which evaluates proposed amendments to the Zoning Resolution through a formal public review process. Amendments approved by the CPC are submitted to the City Council, which may conduct its own public review process. Procedures governing the practices of the CPC, including its public review process, appear in Title 62 of the City’s Rules. 3 In its 2005 opinion, this Court relied extensively on the CPC’s 1995 Report and its later 2001 Report. The reports are publicly available, respectively, at (cont’d on next page) 7 about which businesses were not covered: general interest book or video stores devoting only a small portion of their stock to erotica; book or video stores focusing on gay and lesbian themes but covering a wide range of topics, like adoption, health care, and social issues; and businesses offering adult entertainment on an occasional basis, such as a monthly live performance or a nightly midnight movie showing (id. at 49, 51-52, 54). In 1995, after reviewing the record before the CPC and conducting more public hearings, the City Council amended the Zoning Resolution to add adult use zoning regulations. See ZR §§ 12-10, 32-01, 32-69, 42-01, 42-55, 52-734, 52-77, 72-40 (1995). Then, as now, the regulations prohibited “adult establishments” from operating in districts where residential uses are permitted, and required that an adult establishment be located at least 500 feet from a school or house of worship, another adult establishment, or a zoning district where adult uses are prohibited. See id. §§ 32-01, 42-01 (1995). www1.nyc.gov/assets/planning/download/pdf/about/cpc/950384.pdf and www1.nyc.gov/assets/planning/download/pdf/about/cpc/010508.pdf. 8 The 1995 regulations defined an “adult establishment” as a commercial establishment, a “substantial portion” of which was an adult book store (that is, a triple-X book or video store) or an adult eating or drinking establishment (that is, a topless or nude bar or club). ZR § 12-10 (1995). In administrative guidance, the New York City Department of Buildings-the entity charged with interpreting and enforcing the Zoning Resolution-later defined “substantial portion” to mean that at least 40 percent of the establishment’s stock or floor area was devoted to that adult use. See N.Y.C. Dep’t of Bldgs., Operation Policy & Procedure Notice 6/98 (1998).4 It was this administrative definition that later came to be known as the “60/40 test.” 2. The City’s 2001 adult use amendments In 1998, this Court rejected a challenge to the City’s regulations under the New York State Constitution, holding that they were “not an impermissible attempt to regulate the content of expression but rather [were] aimed at the negative secondary 4 Available at www1.nyc.gov/site/buildings/codes/oppn0698.page. 9 effects caused by adult uses, a legitimate governmental purpose.” Stringfellow’s of N.Y., Ltd. v. City of New York, 91 N.Y.2d 382, 399 (1998). This Court also found that the regulations were no broader than necessary and preserved reasonable alternative avenues of communication. Id. at 400, 402. The federal courts subsequently rejected free speech and equal protection challenges to the regulations under the U.S. Constitution. See Hickerson v. City of New York, 146 F.3d 99 (2d Cir. 1998), cert. denied, 525 U.S. 1067 (1999); Buzzetti v. City of New York, 140 F.3d 134 (2d Cir. 1998), cert. denied, 525 U.S. 816. The City then commenced an enforcement initiative that, while initially successful, led to widespread attempts to evade the regulations. As relevant here, the City determined that many of the adult establishments it had intended to be covered were evading regulation by achieving technical compliance with the numerical 60/40 test-that is, devoting less than 40 percent of their floor space or stock to topless dancing or triple-X magazines and videos-without otherwise changing their predominant focus 10 on sexually explicit materials and activities.5 Although many lower courts agreed with the City that these establishments were only in sham compliance and were therefore properly classified as “adult,” this Court ultimately reversed, holding that the regulations and 60/40 test must be strictly construed against the City. See City of New York v. Les Hommes, 94 N.Y.2d 267 (1999), rev’g 258 A.D.2d 284 (1st Dep’t); City of New York v. Dezer Props., Inc., 95 N.Y.2d 771 (2000), rev’g 259 A.D.2d 116 (1st Dep’t 1999). Thus, when DCP updated the CPC on the results of the City’s enforcement efforts, it reported that, as of 2000, a vast majority of the City’s adult businesses-101 of 136-were now 60/40 businesses not captured by the mechanical administrative test, and remained located in areas off-limits to adult businesses under the regulations (2001 CPC Report at 6, 9-10). Most of these 101 establishments were existing businesses that had been identified as “adult” by DCP in 1993 but had adopted 60/40 5 Adult businesses also engaged in other strategies to avoid regulation. For example, plaintiff Ten’s Cabaret at one point instituted a policy of admitting minors, claiming that this meant it could not be considered “adult,” even though the establishment was a topless bar. See City of New York v. Stringfellow’s of N.Y., Ltd., 96 N.Y.2d 51, 54-55 (2001). 11 configurations in response to the regulations (id. at 10). Twenty- six businesses, including one using the name “Sixty/Forty Video,” had newly opened in impermissible locations after the enactment of the regulations (id.). Because of the high number of such 60/40 establishments, adult businesses continued to concentrate in certain parts of the City (id. at 7-8). To remedy this deficiency in the definition of “adult establishment,” as administratively construed, and to effectuate the City Council’s original intent in enacting the 1995 regulations, DCP applied to the CPC for an amendment to the Zoning Resolution (2001 CPC Report at 3-4). After holding public hearings, the CPC agreed that amendments were needed to address attempts at evasion by businesses with a “predominant, ongoing focus on sexually explicit materials or activities” (id. at 30-36). The City Council approved the amendments in 2001 (PA102-19). The 2001 amendments made two changes to the 1995 regulations’ definition of “adult establishment.” First, in defining an “adult eating and drinking establishment”-typically, topless 12 clubs and bars-the amendments eliminated the language referring to adult entertainment being featured in a “substantial portion” of the establishment. Thus, under the 2001 amendments, businesses regularly featuring live performances characterized by an emphasis on “specified anatomical areas” or “specified sexual activities,” or having “employees who . . . regularly expose to patrons ‘specified anatomical areas,’” are considered adult establishments if those performances regularly occur in any portion of the establishment (PA104-05 [ZR § 12(1)(b)]). “Specified anatomical areas” include the “female breast below a point immediately above the top of the areola,” and “specified sexual activities” include “fondling or other erotic touching of . . . [the] female breast” (PA106-07 [ZR § 12(2)(b)(iii), (c)(i)(cc)]). Second, although the amendments retained the “substantial portion” language with respect to adult book and video stores, they clarified that a book and video store will be classified as adult if either: (1) a “substantial portion” of the printed or visual material it offers for sale is “adult” (that is, it fails the 60/40 test), or (2) it meets at least one of eight objective criteria common among book 13 and video stores maintaining a predominant focus on sexually explicit materials or activities (A104, 107-11 [ZR § 12(2)(d)]; see also 2001 CPC Report at 34). A business meets these criteria if it: 1) requires customers to pass through adult areas in order to access areas with non- adult materials, 2) has one or more peep booths where adult movies or live performances may be viewed, 3) requires customers to pay for non-adult materials in an area of the store that includes adult materials, 4) offers adult titles for sale or rent but non- adult titles only for sale, 5) has a greater number of distinct titles of adult materials than non-adult materials (even though at least 60% of the total inventory is purportedly non-adult), 6) excludes or restricts minors from the store as a whole or from any section of the store with non-adult material, 7) has signs advertising adult materials that are disproportionately large in comparison to signs advertising non-adult materials, in view of the proportion of adult and non- adult materials offered for sale, or 8) has window displays that feature a disproportionate number of adult materials, or that devote a disproportionate amount of 14 area to adult materials, in view of the proportion of adult and non-adult materials offered for sale (PA108-10 [ZR § 12-10(2)(d)(aa)-(ii)]). 3. These two lawsuits In 2002, plaintiff JGJ Merchandise Corp., also known as Mixed Emotions, commenced the People Theatres action against the City, alleging that the amended definition of “adult bookstore” was unconstitutional on its face in that it violated the free speech provisions of the federal and state constitutions (PA41-100).6 That same year, several bars and clubs regularly featuring topless dancing commenced the Ten’s Cabaret action, challenging the amended definition of “adult eating and drinking establishment” on similar grounds (TR12-38).7 The Ten’s Cabaret plaintiffs much 6 Although the People Theatres action was also commenced by For the People Theatres of New York, a 60/40 theater classified as adult under the 2001 amendments, the City did not appeal from a 2010 Supreme Court decision striking down the amended definition of adult theater, and the theater is thus not a party to this appeal. See For the People Theatres of N.Y., Inc. v. City of New York, 27 Misc. 3d 1079, 1089 (Sup. Ct., N.Y. Co. 2010). 7 Upon information and belief, two of the four plaintiff businesses in the Ten’s Cabaret action closed prior to trial. The two remaining plaintiffs are Ten’s Cabaret, formerly known as Stringfellow’s, and Pussycat Lounge. 15 later claimed that their complaint also included an as-applied challenge, and the Appellate Division, First Department agreed over the City’s objection that such a challenge was pleaded. See For the People Theatres of N.Y., Inc. v. City of New York, 84 A.D.3d 48, 64-65 (1st Dep’t 2011). After the City answered, the City and plaintiffs cross-moved for summary judgment and other relief, contesting the constitutionality of the 2001 amendments.8 B. This Court’s 2005 Remand for a Hearing on a Limited Issue The constitutionality of the 2001 amendments first reached this Court in 2005. In its opinion, this Court detailed the history of the 1995 regulations as well as the 2001 amendments. See For the People Theatres of N.Y., Inc. v. City of New York, 6 N.Y.3d 63, 68- 75 (2005). The Court repeatedly emphasized that the fundamental aim of the City’s regulations, from the beginning, was to regulate businesses that were characterized by a “predominant, on-going focus on sexually explicit materials or activities,” not simply to 8 The parties’ cross-motions and the full legislative history of the 2001 amendments appear in the records on appeal that were filed with this Court in the 2005 appeal. 16 regulate, in themselves, establishments devoting a substantial portion of their businesses to adult entertainment. Id. at 69, 70, 71. The Court recognized that, considering the statistics compiled by DCP in 2000, “the 1995 Ordinance did not achieve its goal.” Id. at 74 n.3. Next, this Court held that, in light of the fact that the City’s adult use zoning regulations are entitled to judicial deference, the City’s burden of proof to support the constitutionality of its regulations is “not a very heavy one,” People Theatres, 6 N.Y.3d at 80-81, and “very little evidence is required,” id. at 80 (quoting Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 451 (2002) (Kennedy, J., concurring)). Although the Court affirmed that the City must have a legislative record establishing a substantial governmental interest in its zoning regulations, the Court held that empirical studies are not required, and that the City “retains discretion . . . to draw reasonable conclusions about which regulatory techniques will be most beneficial in addressing [its] findings.” Id. at 81. 17 Applying these standards to the record before it, this Court held that the City had satisfied its prima facie burden of showing the constitutionality of the 2001 amendments. See id. at 81-82. The Court determined that, based on the 1994 DCP Study and the City’s experiences in enforcing the regulations, the City had supported its conclusion that the essential character of the 60/40 businesses was unchanged, and that it was this essential character that created the negative secondary effects the City had initially studied. See id. However, the Court also found that plaintiffs had raised a triable issue of fact by coming forward with studies purporting to show that 60/40 establishments were not connected with two of the many secondary effects discussed in the 1994 DCP Study: decreased property values and increased crime. See id. at 82-83. In light of these conclusions, this Court remanded the cases for proceedings on the question “as to whether 60/40 businesses are so transformed in character that they no longer resemble the kinds of adult uses” examined in the 1994 DCP Study. Id. at 83- 84. The Court clarified precisely what the City was required to 18 show on remand-and what it was not. The Court directed that the “City was not required . . . to relitigate the secondary effects of adult uses, or to produce empirical studies connecting 60/40 businesses to adverse secondary effects.” Id. at 83. Rather, on remand, the City must “fairly support[] its position on sham compliance”-that is, the City had to come forward with additional evidence that “despite formal compliance with the 60/40 formula, these businesses display a predominant, ongoing focus on sexually explicit materials or activities.” Id. at 84. C. The Evidence on Remand On remand, the Supreme Court held trials in both lawsuits. At the trials, the City submitted substantial additional evidence showing that 60/40 businesses continued to display a predominant, ongoing focus on sexually explicit materials and activities. A condensed summary of that evidence follows. 19 1. The continued predominant sexual focus of the book and video stores in People Theatres At the five-day trial held in People Theatres, the City adduced extensive evidence about the operation and layout of 14 self-identified 60/40 book and video stores classified as “adult” under the 2001 Amendments: plaintiff Mixed Emotions, Thunder Lingerie, Show World, Exquisite DVD, Blue Door Video (Brooklyn), Blue Door Video (Manhattan), Love Shack (Queens), Love Shack (Bronx), Gotham City (West St.), Gotham City (8th Ave.), Video Xcitement, Amsterdam Video, Vihan’s Video,9 and (the former) Pride NYC. For comparison, the City also presented evidence about the characteristics of two bookstores that met the numerical 60/40 test and were not classified as adult under the 2001 amendments: Samantha Video and Empire DVD. Three City witnesses-including two inspectors of the New York City Office of Special Enforcement who had conducted 9 The trial transcripts in People Theatres sometimes confuse Vihan’s Video with Vishans Video, the latter of which is another name for plaintiff JGJ Merchandise Corp. For clarity, the City here refers to JGJ Merchandise as Mixed Emotions, as the parties did at trial. 20 hundreds of observations of adult establishments-testified about the characteristics of the stores, as well as the characteristics of adult businesses before the 60/40 rule was implemented (PA209- 384, 402-71, 473-535). The City also entered dozens of exhibits, including photographs and video recordings of the establishments, into evidence (PA818-82; see also Defs.’ Video Exs. K1-4, filed separately with this Court). All of this evidence supplemented evidence that the City had submitted at summary judgment about 12 other self-identified 60/40 book and video stores considered to be “adult” under the amendments, and showed that the 14 additional businesses had the following characteristics. First, 13 of the 14 establishments featured between 7 and 60 “peep booths” enabling customers to view adult videos privately on the premises (PA270, 277, 294, 304, 416, 418, 465-66, 490, 498, 503, 506-08, 516, 648). At least nine of the stores also promoted peep booths as a key amenity through interior and exterior signage in neon or large lettering (PA490, 503, 820, 833, 838, 865- 66, 869-70, 874, 878-79, 881; Defs.’ Exs. K1-3). For example, photographs revealed that the façade of Vihan’s Video was almost 21 completely covered by signs promoting the establishment’s peep booths (PA878). These signs included at least 13 references to “PEEP,” “PEEP SHOW,” “MALE ROOMS,” “VIEWING BOOTHS,” and “ADULT PEEP SHOW” (PA878). One of the establishments- Gotham City (8th Ave.)-even had 12 peep booths featuring live nude women, which it advertised garishly on the front doors of its establishment in text reading “LIVE GIRLS GIRLS GIRLS GIRLS” (PA465-66, 869). Second, at least 6 of the 13 establishments with peep booths-Blue Door Video (Manhattan), Exquisite Video, Gotham City (West St.), Gotham City (8th Ave.), Vihan’s Video, and former Pride NYC-also featured “buddy booths” (PA269-72, 466, 490, 497, 502, 506-07; Defs.’ Exs. K1-3). In a buddy booth, customers in adjacent peep booths can draw back a curtain to view one another, and there is an opening between the booths, allowing the customers to interact (PA220, 269-72). For example, in Vihan’s Video, in addition to eight peep booths located on the first floor, on the second floor there was an area called the “male section,” which had an entrance fee of $10 and featured 10 adult buddy-style peep 22 booths, as well as a small area where multiple patrons could watch adult films (PA497-99). And in Blue Door Video (Manhattan), large holes had been cut directly into the adjoining walls of the peep booths, further enabling physical interaction between customers (see Defs.’ Ex. K2 at 23:56). Third, as the City’s photographs and videos of the exterior and interior of the video and book stores graphically showed, the “non-adult” sections of most of the 14 book and video stores did not simply display non-adult books and videos. Rather, they featured a large selection of merchandise intended for use in sexual activities, including sex toys, simulated erect penises (dildos), bondage gear, lingerie, oils, lotions, and condoms (PA819-20, 822- 23, 826-29, 845, 848-50, 852-55; Defs.’ Exs. K1-3). For example, in Blue Door Video (Manhattan), customers were required to pass bondage gear, nipple clamps, sex toys, and dildos to reach the cashier (PA264-66; Defs.’ Ex. K2). Similarly, in Thunder Lingerie, the non-adult section of the store was packed with sex toys and dildos featuring large erect penises with labels like “Ballsy,” “Futurotics,” and “Raw Studs” (PA822-23). The packaging of these 23 products often featured graphic depictions of sexual activity, as well as nude men and women (e.g., Defs.’ Ex. K2). Fourth, the businesses’ layouts focused attention on adult and sexually explicit materials. In some stores, customers were required to pass through the adult section in order to access non- adult materials. For example, in Show World, in order to access most of the non-adult materials, which were located in the basement, customers were required to first pass through one of two sections-adult videos or peep booths-and descend a staircase (PA209, 300-06). Similarly, in Vihan’s Video, aside from a small area of non-adult DVDs at the very front of the store, the non-adult area was on the third floor, which was only accessible through the adult section (PA497-98). In other stores, the adult materials were directly adjacent to non-adult materials, or at least fully visible from the non-adult section. In Gotham City (West St.) and Gotham City (8th Avenue), non-adult materials were actually located in, or adjacent to, the peep booth areas, including peep booths advertising live nude women (PA465-66; Defs.’ Ex. K1). In Pride NYC, a display of adult 24 magazines with graphic covers was located between the entrance and the cash register (PA501; Defs.’ Ex. K2). And in Thunder Lingerie, customers standing in the non-adult section were able to view much of the adult section, including the entrance to the peep booth area (PA832). Above this entrance, there was a large poster advertising the film “Buttman,” and showing a woman upside- down and spread eagle in a tiny red thong (PA832).10 Fifth, 9 of the 14 establishments-Thunder Lingerie, Show World, Love Shack (Bronx), Blue Door Video (Brooklyn), Gotham City (8th Ave.), Vihan’s Video, Exquisite Video, former Pride NYC, and Mixed Emotions-had window displays and exterior signage that highlighted the adult materials carried by the store. For example, Mixed Emotions advertised “Private Adult Viewing Booths” and “Adult Toys / Videos” in neon signs at the top of its 10 Moreover, the evidence showed that many establishments invested much greater care in the display of their adult stock than their non-adult stock. The difference is striking, for example, at Show World, where the adult materials were flashily displayed on the first floor and many non-adult materials were relegated to an unadorned room in the basement (compare PA838, 844-45, with PA842-43). Similarly, in Thunder Lingerie and Amsterdam Video, non- adult videos were stacked in piles on the floor-right under bondage gear, dildos, or sexual novelties (PA825-29, 854-55). 25 window display (PA880, 882). Similarly, Thunder Lingerie’s store front featured a large neon sign advertising peep booths just above the entrance; adult DVDs, including Bondage Desires and Fetish World; and adult magazines, including Hustler (PA818-20). The remaining space in Thunder Lingerie’s window display was not devoted to non-adult books and videos, but rather to sex toys like a “Spinning Sex Swing,” lingerie, and condoms (PA818-20). Finally, at least seven of the stores-Mixed Emotions, Show World, Love Shack (Queens), Gotham City (West St.), Thunder Lingerie, Vihan’s Video, and Pride NYC-excluded minors from their entire premises (PA284, 300, 487, 489, 493, 511, 659, 821, 875; Defs.’ Exs. K1-2). See N.Y. Penal Law §§ 235.20-24 (prohibiting dissemination of indecent material to minors). The characteristics of these fourteen 60/40 businesses, which were classified as adult under the amendments, stood in stark contrast to Samantha Video and Empire DVD, which were not so classified. The latter two book and video stores did not: (1) have any adult oriented signs outside of their stores (PA856-57; Defs.’ Ex. K4); (2) restrict minors from entering the stores (PA330, 346); 26 (3) offer dildos or sex toys for sale in their non-adult sections (PA328; Defs.’ Ex. K4); (4) require customers to pass adult areas to get to non-adult areas or pay for their merchandise (PA329, 345- 46; Defs.’ Ex. K4); or (5) provide peep booths (PA329, 346). 2. The continued predominant sexual focus of the topless bars in Ten’s Cabaret Over the course of a second five-day trial in Ten’s Cabaret, the City again set forth extensive evidence, this time showing that ten “eating and drinking establishments” (bars and clubs) with a 60/40 configuration maintained a predominantly sexual focus: plaintiff Ten’s Cabaret, plaintiff Pussycat Lounge, Bare Elegance, Lace, Lace II, Wiggles, Private Eyes, VIP Club, and Vixen. The City called nine witnesses, including five inspectors with the Office of Special Enforcement and four 60/40 club owners, read the deposition testimony of two other club owners into evidence, and entered several dozen exhibits into evidence. All of this evidence was submitted for the first time on remand, and it showed that the 10 businesses displayed the following characteristics. 27 As a general matter, it was undisputed that all 10 clubs regularly featured topless dancing, typically six or seven days a week for up to 16 hours a day (TR305-06, 315-16, 361-62, 393-94, 551-52, 558, 642, 649). The undisputed evidence also showed that topless dancers at all clubs gave patrons lap dances, either in open areas near the clubs’ stages, or in private or semi-private “VIP” rooms or cubicles, which cost up to $900 to rent (e.g., TR313, 553- 59). One of the clubs featured up to 50 topless dancers a night (TR551-52), and four of the clubs were using a similar amount of space for topless dancing as they had before the 60/40 test was adopted in 1998 (TR292-98, 307-10, 392-96, 646-49). Otherwise, the 10 clubs fell into two subsets. Seven of the clubs-Bare Elegance, Lace, Lace II, HQ, Wiggles, Private Eyes, and VIP Club-used their “non-adult” sections merely to provide additional amenities or additional seating areas for their topless bar customers. The three remaining clubs-plaintiff Pussycat Lounge, plaintiff Ten’s Cabaret, and to a lesser extent, Vixen- were essentially comprised of two independent businesses: a topless bar and a distinct nightclub. 28 With respect to the first subset, the evidence revealed that the “non-adult” sections of these seven clubs did not provide developed and separate amenities for customers not patronizing the topless bars, but merely additional amenities for the topless bar customers. The non-adult sections were: in Bare Elegance, an additional seating area with a bar (TR194); in Lace and Lace II, open areas with chairs and a pool table (TR199-204, 211-16); in HQ, an open dining area without a restaurant (TR229, 629-31); and in Wiggles, an area with couches, a coat check, and a pool table (TR232-34). Although the non-adult sections at Private Eyes and VIP were somewhat more developed, with a “bikini bar” (featuring women dancing in bikinis instead of dancing topless) and a sushi bar, respectively, they still functioned as accessories to the clubs’ topless dancing attractions. Patrons eating at VIP’s sushi bar were required to pay the same $20 cover charge paid by patrons also viewing the adult entertainment (TR559-60), and in Private Eyes, the non-adult area featured the establishment’s only bar (TR208-09). 29 City inspectors visiting these seven businesses throughout the day, including late at night, almost never saw more than a few customers, if any, in the non-adult sections (e.g., TR209-11, 611- 12). In particular, City inspectors never saw any customers sitting in the non-adult sections of Bare Elegance, Lace, Lace II, or HQ (TR195-97, 595-96, 599-600, 603-04; TR199, 203-05, 215, 244, 340- 42, 345, 605-09, 611, 614-17; TR229, 629-31). Additionally, these seven clubs explicitly held themselves out as adult clubs. The external signage of “Bare Elegance” identified it as a “Gentlemens Club & Lounge,” with “Live Beautiful Models” (TR198-99, 1585). At Lace and Lace II, the external signage identified each as a “Gentlemen’s Club,” and the front of Lace also featured a large poster of a woman lying on her stomach and gazing provocatively at the viewer (TR1587-88, 1596- 97). Signs at Private Eyes advertised it as a “Gentlemen’s Club” providing “Adult Entertainment” (TR211), and Wiggles identified itself as a “Gentleman’s Club” on a bright red awning below a purple neon sign (TR1631). 30 The clubs’ websites also identified them as adult. Lace and Lace II’s home page described the clubs as “the very best in Gentlemen’s club entertainment” and “one of America’s hottest locales for fun and fantasy” (TR1589). It further promised “nubile girls” with “some kind of wild personality to go with their killer bodies,” and each page of the website featured the silhouette of an apparently naked woman dancing in stilettos (TR1589-93). Website visitors clicking on photographs in the “Tour Our Ladies” section opened pop-out windows that purported to provide the measurements of the women depicted in the photos (TR318, 1589). Similarly, VIP Club’s home page identified it as “New York’s Premier Gentlemen’s Cabaret” and featured a busty woman dressed in a red bra-and-panty outfit looking down and sticking her fingers down her panties (TR1643). The website’s “Contact” page featured a woman covering her breasts with her hands, and its “Employment” page featured a busty woman wearing only leather straps (TR1652-53). Visitors could also click on thumbnail images of the club’s entertainers, all of whom posed provocatively, and one of whom appeared to be naked (TR1646-51). 31 With respect to the three remaining clubs-plaintiff Pussycat Lounge, plaintiff Ten’s Cabaret, and Vixen-the evidence showed that each was comprised of essentially two separate businesses: a topless bar and a non-adult club. In fact, both Vixen and Pussycat were using the same amount of floor space for topless dancing as they had before the City’s zoning regulations were implemented. In order to take advantage of the 60/40 test, however, they had begun using additional, separate spaces for non-adult activities (TR392-97, 646-49, 653). For example, before the adoption of the 60/40 rule in 1998, the first floor of Pussycat Lounge featured topless dancing, and the second floor operated as an essentially separate restaurant and catering space (TR392, 396). In order to take advantage of the 60/40 test, however, Pussycat’s owner had the two establishments connected legally (TR382-86). However, the two floors continued to operate as essentially separate establishments in essentially the same arrangement as before. On the first floor, Pussycat Lounge continued to hold itself out as an adult business offering topless dancing, with its website identifying it as a “Gentlemen’s Club,” 32 proclaiming that “Pussycat Lounge knows what you want,” and advertising VIP suites, private lap dance areas, and “Stunning Entertainers” (TR412-13, 1602-10). On the second floor, Catbar operated as a live music club, with a different entrance, a different website, and different (and fewer) operating hours from Pussycat Lounge (TR392). Similarly, after the adoption of the 60/40 test, Vixen continued to offer topless dancing in the same space it had before (TR646, 649, 652-63). But depending on the day of the week, Vixen now either operated an independent party space next to its adult club or simply used its non-adult area as an additional seating area for its topless bar customers (TR646-53). However, Vixen’s primary focus continued to be topless dancing. For example, Vixen’s phone number is 718-SEX-6969 (TR691), and Vixen’s website uses the logo “Welcome to VIXEN” (TR1633-34). The website further describes Vixen as “not your ordinary, stereotype (ho-hum) nightclub in adult entertainment,” but rather “fantasy and pleasure at it’s best” (TR1634). 33 Finally, Ten’s Cabaret had divided itself into two independent, side-by-side clubs, each with its own entrance, in order to comply with the 60/40 formula (TR361). The topless club, which explicitly identified itself as a “Gentleman’ Cabaret,” where between 10 and 25 women danced at any one time, was open six nights a week (TR223, 361-64, 1614). The non-adult club, by contrast, was open only three nights a week, operated under the name of Room Service, and had its own publicity materials and website, which did not mention the gentlemen’s club that was allegedly part of the same establishment (TR366-71). D. The Supreme Court’s Decisions First Upholding, then Later Striking Down, the Amendments After reviewing the evidence submitted at the bench trials, the New York County Supreme Court upheld the amendments. See For the People Theatres of N.Y. v. City of New York, 27 Misc. 3d 1079, 1089 (Sup. Ct., N.Y. Co. 2010). The Supreme Court held that the City had satisfied the “light” burden established by this Court’s 2005 opinion by setting forth evidence that showed that 60/40 businesses had an “ongoing focus . . . on adult matters.” Id. 34 On appeal, however, the Appellate Division concluded that the Supreme Court had not adequately articulated findings of fact and remanded for additional findings on plaintiffs’ facial constitutional challenges. See For the People Theatres of N.Y., Inc. v. City of New York, 84 A.D.3d 48, 59-60 (1st Dep’t 2011). The court also remanded for consideration of the Ten’s Cabaret plaintiffs’ purported as-applied challenges, which Ten’s Cabaret and Pussycat Club had asserted for the first time at trial in 2009, and which the Appellate Division concluded were stated in plaintiffs’ “inartfully pleaded” complaints based on a very liberal reading. Id. at 64-65. On remand, in an abrupt about-face, the Supreme Court struck down the 2001 amendments as unconstitutional. See People Theatres v. City of New York, 38 Misc. 3d 663, 676 (Sup. Ct., N.Y. Co. 2012). To explain its reversal, the court asserted that, in writing its previous opinion, it had not understood that the standard of review was intermediate scrutiny. See id. at 673-74. The Supreme Court set forth limited findings of fact. See id. at 666-72. For example, the court only made explicit findings that 35 four of the 60/40 book and video stores had peep booths, although it was undisputed at trial that nine other establishments also had peep booths; did not even mention the buddy booths or live nude peep booths; and made no findings at all about Vihan’s Video, Pride NYC, or Gotham City (West St.). Disregarding this Court’s and the Appellate Division’s remand decisions, the court also made improper findings and conclusions about whether 60/40 establishments could be linked to secondary effects. See id. at 672- 73, 675-76. The Supreme Court concluded that the City had not satisfied its burden. The court based its holdings on the following factors: (1) that the 60/40 businesses were separated into adult and non- adult sections, the latter of which were larger, (2) that the non- adult sections were often at the front of the establishments and that it was not always possible to see into the adult sections from the non-adult sections, (3) that the businesses’ signs were smaller and less garish, (4) that “most” businesses had “legitimate” activities going on in their non-adult sections, and (5) that the businesses advertised online and in newspapers. See id. at 674-75. 36 Because the court found the amendments unconstitutional on their face, it did not reach the Ten’s Cabaret plaintiffs’ purported as-applied challenges. See id. E. The Appellate Division’s Affirmance in a Split 3-2 Decision. In a split three-two decision, the Appellate Division, First Department, affirmed and struck down the 2001 amendments. See For the People Theatres of N.Y., Inc. v. City of New York, 131 A.D.3d 279, 294 (1st Dep’t 2015). The Appellate Division created a new framework for its analysis, taking several factors it had suggested in its 2011 decision that the Supreme Court “might” consider in making its factual findings, and converting the factors into a mandatory four-prong balancing test. See id. at 289. In applying this newly minted test, the Appellate Division held that the City’s evidence that the 60/40 businesses continued to promote sexually explicit materials and activities “indicate[d] a predominant sexual focus in most of the clubs,” People Theatres, 131 A.D.3d at 292-93, and “support[ed] the City’s argument that the [book and video stores] are predominantly sexually focused,” 37 id. at 291. However, the court found this evidence outweighed by its conclusions based on three other factors: (1) whether the exterior advertising signage was large or graphic, (2) whether access by minors was sufficiently restricted, and (3) whether the layouts of the establishments made it difficult to access the adult materials. See id. at 290-91, 293-94. By contrast, the two-justice dissent would have reversed the Supreme Court’s decision and declared the 2001 amendments constitutional. See People Theatres, 131 A.D.3d at 307 (Andrias, J., dissenting). Recognizing the importance of carefully balancing the City’s right to exercise its police power against the potential infringement on protected speech, the dissent opined that both the trial court and the majority failed to employ the proper analysis for assessing whether the City had sustained its burden. See id. at 295, 302. In particular, the dissent found that the majority’s mechanical and mathematical approach, under which the City’s evidence of predominant sexual focus was found quantitatively outweighed by the majority’s de novo assessment of exterior signage, policies towards minors, and one aspect of physical 38 layouts, was improper. See id. at 302-03. That analysis, the dissent continued, conflicted with prior dictates of this Court and wrongly elevated the City’s constitutional burden of proof. See id. In contrast to the majority, the dissent maintained that the City’s burden of proof was modest, invoking concepts akin to “substantial evidence.” People Theatres, 131 A.D.3d at 301. If the proper standard of review were applied to the facts, the dissent concluded, the City had sustained its burden as to sham compliance by demonstrating that, “by and large the essential character of the 60/40 businesses had not changed, even if their physical structure ha[d].” Id. at 295. For similar reasons, the dissent would have rejected any as-applied challenge by the Ten’s Cabaret plaintiffs. Id. at 306-07. JURISDICTIONAL STATEMENT This Court has subject matter jurisdiction in these appeals as of right on two independent grounds. First, the order appealed from finally determines the actions and involves the substantial constitutional question of whether, in striking down the 2001 amendments on free expression grounds, the lower courts 39 improperly elevated the City’s burden of proof and second-guessed the legislative judgments underlying the amendments. See N.Y. Const., Art. VI, § 3(b)(1); CPLR 5601(b)(1); Arthur Karger, Powers of the New York Court of Appeals §§ 7:1-7:12 (3d ed. 2005). Second, the two-justice dissent, which would have granted judgment as a matter of law to the City and declared the amendments constitutional, is on a question of law: whether, under the proper standard of review, the City satisfied its burden, as framed by the Court’s 2005 decision, as a matter of law. See CPLR 5601(a); Karger, supra, § 6:5. ARGUMENT AS A MATTER OF LAW, THE CITY CARRIED ITS BURDEN TO PRESENT EVIDENCE “FAIRLY SUPPORTING” THE LEGISLATIVE JUDGMENTS UNDERLYING THE AMENDMENTS The hearing outlined by the Court’s 2005 decision was not a garden-variety trial at which the fact-finder makes a de novo determination based on the preponderance of the evidence. Instead, it was a special type of proceeding that was intended to test whether sufficient evidence supported the legislative 40 judgments underlying the City Council’s 2001 adult use zoning amendments. Once the proper scope of and applicable standards for this proceeding are understood, it becomes clear that the 2001 amendments should have been upheld as constitutional. Already eleven years ago, this Court resolved most issues in this case in favor of the City and remanded for a narrow inquiry into a single disputed issue: whether evidence “fairly supported” the City Council’s legislative judgments that businesses covered by the 2001 amendments maintained a predominant focus on sexual materials and activities, despite compliance with the numerical 60/40 standard developed in administrative guidance. This Court was clear that the reasonable discretion accorded most local legislative actions extended to adult use zoning regulations, and that the City Council’s reasonable legislative judgments were entitled to deference. In striking down the amendments, the Supreme Court and the Appellate Division applied the wrong standard and answered the wrong question. Both courts explicitly heightened the City’s burden of proof beyond that established by this Court’s 2005 41 decision. Both courts also reweighed the evidence de novo and, even more troublingly, reevaluated and reweighed the various factors bearing on the ultimate question of whether a business may be said to display a predominant sexual focus. Indeed, even though the Appellate Division majority explicitly held that the City had come forward with evidence supporting its legislative judgments-the narrow inquiry outlined by this Court-it found this evidence outweighed by other evidence. In short, the Supreme Court and the Appellate Division treated the remand proceedings as a typical trial at which they were entitled to reweigh the evidence de novo, and did not defer to the City Council’s reasonable judgments. But this Court’s remand instructions precluded this analysis. This Court framed the remand hearing as a special proceeding to test the adequacy and credibility of the City’s evidence, and made clear that judicial deference was required. As the summary of the evidence the City adduced at trial demonstrates, see supra pp. 19-33, the City satisfied the relatively modest burden set forth by this Court. Plaintiffs were given the 42 opportunity to test the credibility of the City’s evidence at trial- that is, to show that the City’s evidence was unsound and thus did not fairly support the City Council’s legislative judgments-but they wholly failed to do so. Thus, based on undisputed evidence in the trial record, as well as the Appellate Division majority’s own reasoning that the City satisfied its burden on remand, the City is entitled to judgment as a matter of law. A. The Lower Courts Applied the Wrong Standard and Substituted Their Judgment for the City Council’s. In striking down the amendments, the Supreme Court and Appellate Division majority made a series of fundamental legal errors. Contravening this Court’s instructions in its 2005 decision as well as long-established legal principles of judicial deference to legislative enactments, both courts improperly substituted their judgment for the City Council’s. Because adult use zoning ordinances implicate speech and conduct protected by the First Amendment and by Article 1, § 8 of the New York State Constitution, courts review such ordinances to ensure that a proper balance is struck between freedom of 43 expression and community needs. The relevant test-typically referred to as “intermediate scrutiny”-is substantially similar under both the federal and state constitutions. Adult use zoning ordinances will pass constitutional muster if they: (1) target secondary effects associated with adult uses rather than the content of those uses; (2) are narrowly tailored to address a substantial interest in avoiding negative secondary effects; and (3) leave available adequate alternative locations for adult businesses. Stringfellow’s of N.Y., Ltd. v. City of New York, 91 N.Y.2d 382, 396-97 (1998) (citing City of Renton v. Playtime Theatres, 475 U.S. 41 (1986)). To satisfy the second element, a locality must have a legislative record establishing a substantial government interest in its zoning regulations. See For the People Theatres of N.Y., Inc. v. City of New York, 6 N.Y.3d 63, 81; City of Los Angeles v. Alameda Books, 535 U.S. 425, 438 (2002). As this Court’s analysis in its 2005 decision makes clear, however, a court’s obligation to review a locality’s evidence of a substantial government interest neither gives the courts license to reweigh that evidence nor allows them to circumvent ordinary 44 principles of deference to legislative judgments. Rather, this Court explained, a locality need not meet “a high evidentiary bar,” but may properly rely on “any evidence that is reasonably believed to be relevant,” and even “very little evidence” as long as that evidence “fairly support[s] [its] rationale.” People Theatres, 6 N.Y.3d at 79-80 (quoting Alameda Books, 535 U.S. at 438, 451-52). Reviewing courts must also defer to a locality’s reasonable inferences based on this evidence, and may not substitute their judgment for the locality’s. See id. at 81; Alameda Books, 535 U.S. at 451-52 (Kennedy, J. concurring). “In short,” this Court concluded, “the reasonable discretion accorded most local legislative actions extends to adult use zoning.” People Theatres, 6 N.Y.3d at 81. The Court quoted with approval the following passage from the U.S. Court of Appeals for the Fifth Circuit: The point of deference is this: legislators cannot act, and cannot be required to act, only on judicial standards of proof. Legislative zoning decisions are generally upheld on a rational basis standard. Imposing a level of intermediate scrutiny . . . requires more conviction of the connection between legislative ends and means than 45 does the rational basis standard, but only in the sense of “evidence . . . [that] is reasonably believed to be relevant” to the secondary effects in question. Id. at 81 (quoting N.W. Enters. Inc. v. City of Houston, 352 F.3d 162, 180 (5th Cir. 2003)) (alterations in original). In accordance with these standards, this Court’s remand instructions clarified that, even though it had found there to be a triable issue, it was not remanding for the typical trial in which a judge or a jury makes findings based on the all of the evidence submitted by the parties. See People Theatres, 6 N.Y.3d at 84; accord Ocello v. Koster, 354 S.W.3d 187, 203 (Mo. 2011) (“The test [for evaluating adult use ordinances] is not the usual burden- shifting test used by courts to determine which side will prevail under a preponderance of the evidence . . . .”). Rather, the Court reaffirmed that the City’s burden was “not a very heavy one” and could be met with “very little evidence,” and instructed that the material issue on remand was whether the City had supplemented the record with evidence “fairly support[ing]” its legislative judgments. People Theatres, 6 N.Y.3d at 84. The Court also emphasized that the City was not required to “relitigate the 46 secondary effects of adult uses,” perform statistical analysis or formal studies, or establish that it had looked at a representative sample of 60/40 businesses on remand. Id. at 83-84; accord Richland Bookmart, Inc. v. Knox Cnty., 555 F.3d 512, 525-26 (6th Cir. 2009) (county not required to produce evidence tying secondary effects to 65/35 establishments). Other appellate courts reviewing the constitutionality of adult use ordinances agree that the deferential standards of review applied to adult use zoning ordinances do not evaporate on remand. Because the standard of review applied in these cases is deferential, it is rare for a court to find that a plaintiff challenging an ordinance has raised a triable issue with respect to the reasonability of the municipality’s judgments on the need for its ordinance.11 Courts that do not find a triable issue nonetheless 11 See, e.g., Peek-a-Boo Lounge of Bradenton, Inc. v. Manatee Cnty., 630 F.3d 1346, 1357-60 (11th Cir. 2011) (plaintiff failed to raise issue of fact with respect to the second element of the intermediate scrutiny analysis); Richland Bookmart, 555 F.3d at 525-26 (same); Fantasyland Video, Inc. v. Cnty. of San Diego, 505 F.3d 996, 1002 (9th Cir. 2007) (same); H & A Land Corp. v. City of Kennedale, 480 F.3d 336, 339 (5th Cir. 2007) (same); World Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186, 1195-96 (9th Cir. 2004) (same); G.M. Enters. v. Town of St. Joseph, 350 F.3d 631, 639-40 (7th (cont’d on next page) 47 describe a locality’s “ultimate burden” and the “material issue” as whether the locality has relevant evidence reasonably supporting its legislative judgments. See Entm’t Prods., Inc. v. Shelby Cnty., 721 F.3d 729, 737 (6th Cir. 2013); Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 561 (5th Cir. 2006). One of the few courts besides this one to find that a plaintiff had raised a triable issue framed the issue to be determined on remand as whether, based on a review of all the evidence, including any additional evidence adduced by the locality on remand, “there remains credible evidence upon which the [locality] could reasonably rely.” Peek-a-Boo Lounge of Bradenton, Inc. v. Manatee Cnty., 337 F.3d 1251, 1273 (11th Cir. 2003). The court did not frame the issue as whether, based on a review of all the evidence, the court agreed with the locality’s conclusions. See also Abilene Retail # 30, Inc. v. Bd. of Comm’rs, 492 F.3d 1164, 1178 (10th Cir. 2007) (holding that material issue for remand was Cir. 2003) (same); Ctr. for Fair Pub. Policy v. Maricopa Cnty., 336 F.3d 1153, 1168-69 (9th Cir. 2003) (same). 48 whether the county’s evidence provided a sufficient connection between the regulated adult use and the county’s interests). In other words, in order for a plaintiff to succeed at trial, the record must be so overwhelmingly in the plaintiff’s favor as to show the legislature’s judgments to be “unsound,” Alameda Books, 535 U.S. at 453 (Kennedy, J., concurring)-that is, not supported by relevant evidence. If a locality submits additional evidence on remand sufficient to support its legislative judgments, its regulations must be upheld, even if there is also evidence to support a contrary conclusion. See, e.g., G.M. Enters. v. Town of St. Joseph, 350 F.3d 631, 639-40 (7th Cir. 2003) (“Although this evidence shows that the Board might have reached a different and equally reasonable conclusion . . . , it is not sufficient to vitiate the result reached in the Board’s legislative process.”). In striking down the 2001 amendments, both of the lower courts disregarded this Court’s clear instructions about the nature of remand. First, the Supreme Court incorrectly concluded that, because the standard of review was intermediate scrutiny, the City’s burden was not light and deferential standards of review 49 like substantial evidence went out the window. People Theatres v. City of New York, 38 Misc. 3d 663, 673 (Sup. Ct., N.Y. Co. 2012). But as the above discussion demonstrates, the precedents applying intermediate scrutiny-including this Court’s 2005 decision-consistently also apply deferential standards of proof. See, e.g., Alameda Books, 535 U.S. at 436 (deferring to locality’s “reasonable” and “rational” legislative judgments). The import of applying intermediate scrutiny is not that deference evaporates, but that the City must come forward with relevant evidence to support its legislature’s judgments. By contrast, rational basis review may be-and commonly is-satisfied without any evidentiary showing at all. See N.W. Enters., 352 F.3d at 180. Second, the Supreme Court erroneously engaged in a de novo reweighing of the evidence adduced by the parties at trial. After setting forth its findings of fact-which were incomplete and sometimes beyond the scope of the remand, but otherwise essentially undisputed-the Supreme Court listed all of the ways it considered the 60/40 establishments to be different from the establishments considered by the 1994 DCP Study, without even 50 mentioning the numerous ways in which the City had shown the establishments to be substantially similar. See People Theatres, 38 Misc. 3d at 674-75. Thus, the court did not determine whether the City’s evidence fairly supported its conclusion, as this Court directed, nor did it defer to the City Council’s judgments. Third, without otherwise discussing what standard of review it was applying, the Appellate Division incorrectly stated that it was only at the prima facie stage-not on remand-that the City’s burden was “light.” For the People Theaters of N.Y., Inc. v. City of N.Y., 131 A.D.3d 279, 289 (1st Dep’t 2015). To the contrary, as explained above, this Court’s 2005 decision made clear that a deferential standard of review continued to apply on remand, and that the City must only come forward with evidence that “fairly supported” its position. People Theatres, 6 N.Y.3d at 84. Finally, the Appellate Division majority, like the Supreme Court, erroneously reweighed the evidence de novo. Although the Appellate Division explicitly recognized that the City had set forth evidence supporting its conclusion that many 60/40 businesses maintained a predominant focus on sexually explicit materials 51 and activities, see People Theatres, 131 A.D.3d at 291, 292-93, the court announced a four-factor checklist of its own creation and found that other factors outweighed those relied on by the City Council, see id. at 290-94. In making these legal errors, the lower courts usurped the role of the City Council to exercise legislative judgment upon consideration of all of the evidence. See Imaginary Images, Inc. v. Evans, 612 F.3d 736, 747 (4th Cir. 2010). Their analysis improperly allowed litigants to defeat an ordinance enacted by a democratically elected body merely by convincing the court that a different conclusion may have been better. See G.M. Enters., 350 F.3d at 639-40. But, as this Court is well aware, “the primary means to challenge legislative misconceptions is through the channels of representative government: hearings, speeches, conversations, [and] debates.” Imaginary Images, 612 F.3d at 747. For these reasons, this Court should reject the lower courts’ substitution of their judgment for the City Council’s. 52 B. The Appellate Division’s Own Reasoning Should Have Resulted in Judgment for the City. This Court should grant the City judgment as a matter of law, first, based solely on the Appellate Division majority’s own evaluation of the record. The Appellate Division essentially found that the City had satisfied its burden of proof in submitting evidence fairly supporting its legislative judgments. In finding the City’s evidence outweighed by other evidence, the court mechanistically applied a four-factor checklist of its own devising that was both logically flawed and contrary to well-established standards of judicial deference. In its decision, the Appellate Division explicitly found that the City’s evidence “indicates a predominant sexual focus in most of the clubs” and “supports the City’s argument that the stores are predominantly sexually focused.” People Theatres, 131 A.D.3d at 291, 292-93. In light of this Court’s direction that the 2001 amendments were to be upheld if the fact-finder determined that the City’s evidence “fairly supported” its position on the question of predominant sexual focus, the Appellate Division’s findings 53 mean that the City is entitled to judgment as a matter of law upholding the constitutionality of the amendments. The Appellate Division’s statements acknowledged that the City showed on remand that numerous factors supported its determination that 60/40 businesses classified as “adult” under the 2001 amendments maintained a predominantly sexual focus. In People Theatres, these factors included the presence of peep and buddy booths, the adult nature of the merchandise promoted in the stores’ “non-adult” sections, multiple aspects of the stores’ layout, and the stores’ window displays and signage. See supra pp. 19-26. And in Ten’s Cabaret, the City demonstrated that the clubs featured topless and lap dancing throughout their business hours and up to 16 hours a day, used their “non-adult” sections to provide additional amenities to their topless dancing customers or as entirely separate businesses, and held themselves out as adult establishments. See supra pp. 26-33. In finding the City’s evidence outweighed by other evidence going to other factors, the Appellate Division’s analysis was not only improper, but also fundamentally flawed. In its newly 54 devised checklist, the Appellate Division combined all of the evidence supporting the City’s legislative judgments into a single “factor” and described this factor as a “significant emphasis on the promotion of materials exhibiting ‘specified sexual activities’ or ‘specified anatomical areas.’” People Theatres, 131 A.D.3d at 289, 291. The Appellate Division then placed this “factor”-which is essentially synonymous with “predominant sexual focus,” the touchstone issue on remand-on equal footing with three other, subsidiary considerations: (1) the presence of large signs advertising adult content, (2) the exclusion of minors, and (3) difficulties in accessing non-adult materials. Id. at 289. The Appellate Division’s creation and mechanical application of this arithmetic checklist-resting on highly malleable decisions about what to group as a single “factor” and how to weigh various factors once they are defined-expunged all deference to the City Council’s judgments from the analysis. The First Department’s checklist not only invaded the province of the City Council, but made little sense in the context of this case. The City adopted the 2001 amendments to address 55 sham compliance with its adult use regulations-that is, the practice of making superficial changes to adult establishments in order to exploit a strict interpretation of the numerical 60/40 test. But the Appellate Division’s reasoning accomplishes the opposite: it enables 60/40 establishments to defeat regulation through superficial measures. The Appellate Division’s test also relies on the flawed premise that, if the presence of a certain factor identifies a business as “adult,” the absence of that factor must indicate that the business is not adult. This premise is not only a logical fallacy, but also an effective nullification of the City Council’s reasonable judgments to the contrary. In enacting the 2001 amendments, the City Council determined that specific factors, taken together or separately, identified 60/40 book and video stores as adult, and that businesses regularly featuring topless dancing should always be considered adult. As the City’s experience enforcing its regulations showed, that judgment was fully reasonable, and was entitled to deference. But it does not follow-either logically or 56 practically-that the absence of a particular factor substantially negates a predominantly sexual focus. First, and for example, although large, garish signs reading “XXX” identify an establishment as adult, simply removing such signage does not in and of itself change the establishment’s essential nature or focus, as was clearly illustrated at the People Theatres trial. After being deposed in this case, the co-owner of plaintiff Mixed Emotions took down some of the neon signage in the store’s window display and placed a bookshelf prominently displaying Time Magazine, among other publications, in its place (PA664-68; compare 880, with 816, 881). Then, at trial, plaintiff introduced pictures of the altered storefront as evidence that business was no longer predominantly sexually focused (PA659). Considering plaintiff’s other admissions-that the store featured a dozen peep booths, restricted minors from entering, continued to display other neon signs advertising its adult materials, and devoted one-third of its non-adult section to “rubber goods” like dildos (PA648, 659, 662)-it defies common sense to find that this single change eliminated the store’s sexual 57 focus. But the Appellate Division’s arithmetic checklist makes just that mistake. The City Council had ample basis not to weigh the absence of garish signage as heavily as the Appellate Division chose to weigh it.12 Second, the Appellate Division’s analysis of its next factor- whether a store excludes minors-is both overly mechanistic and misdirected. Because the City showed that at least half of the stores examined at trial-seven of 14-excluded minors entirely, this factor should have favored the City. The City Council reasonably determined that the exclusion of minors completely from 60/40 book and video stores-as triple-X book and video stores have often done to avoid any risk of running afoul of prohibitions on the dissemination of indecent material to minors- points towards the conclusion that they retain a predominant sexual focus. 12 When the CPC reviewed proposed alternatives to the City’s 1995 adult use zoning regulations, it explicitly rejected proposals that would have merely required adult establishments to change their signage. It concluded that the key secondary effects it had identified-including reduced property values, the creation of economic dead zones, heightened crime, and change in neighborhood character-existed independently of the garish signage often used by adult establishments (1995 CPC Report at 58). 58 The Appellate Division erred in assuming that the inverse was necessarily true. The absence of evidence that the other half of the stores excluded minors entirely does not indicate that those stores cannot properly be considered adult. That a store selling adult material is willing to risk exposing minors to that material and violating the Penal Law, does not make the store non-adult. A store selling adult material is not rendered non-adult simply because its owner may adopt other strategies for guarding against dissemination of indecent material to minors or may simply be willing to risk violating the Penal Law. Indeed, plaintiff Ten’s Cabaret, formerly known as Stringfellow’s, took precisely this tack in the mid-1990s, when it adopted a policy of admitting minors in order to exploit the regulations’ definition of an “adult eating and drinking establishment” as, in part, one that customarily bars entry to minors. See Stringfellow’s of N.Y., 96 N.Y.2d at 54. But this Court did not countenance such a strategy then, see id. at 56-57, and it should not countenance it now. It was essentially undisputed in that case that, despite its policy of admitting minors, 59 Stringfellow’s was a topless bar otherwise properly regulated as an adult establishment. Similarly, although neither party adduced evidence about whether Gotham City (8th Ave.) excluded minors, it was undisputed that Gotham had large exterior neon signs advertising adult materials, had signs covering its front doors reading “LIVE GIRLS GIRLS GIRLS GIRLS,” and featured 28 peep booths, including 12 advertising live nude women and 8 buddy booths. Those features fairly support a judgment that Gotham is an adult business, regardless of its policy regarding admittance of minors. Finally, that a store has not made non-adult materials entirely inaccessible to all customers only marginally bears on predominant sexual focus, if it does at all. While a decision to make non-adult sections inaccessible is decisive evidence that the claimed 60/40 character of the businesses is a sham, the opposite is not true. Rather, as the City Council reasonably concluded in adopting the regulations, as the City showed at trial, there are numerous other ways that a store’s layout can indicate a 60 predominant focus on sexually explicit materials without making those materials entirely inaccessible. Thus, the Appellate Division’s application of its own, newly devised four-part checklist to make a de novo judgment as to whether 60/40 businesses classified as adult are predominantly sexually focused was not only improper, but was deeply flawed in the light of the City Council’s reasonable judgments about how to weigh the various features of relevant establishments. This also illustrates why courts should defer to legislative judgments in the area. How best to remedy serious urban problems is complex, and courts do not have the competence to “protect [communities] from the harms caused by adult uses.” Town of Islip v. Caviglia, 73 N.Y.2d 544, 550 (1989). Courts “should not be in the business of second-guessing fact-bound empirical assessments of city planners,” who better understand the conditions on the streets. Alameda Books, 535 U.S. at 451-52 (Kennedy, J., concurring). Accordingly, based on the Appellate Division’s own acknowledgment of what the evidence showed, before it went on to 61 openly second-guess the City Council’s reasonable and supported judgments, this Court should enter judgment for the City. C. The Undisputed Evidence Adduced at Trial Also Satisfied the City’s Burden as a Matter of Law. Under the standards set forth in this Court’s 2005 opinion, the City also satisfied its burden of proof as a matter of law, independent of any observations in the Appellate Division’s opinion. Although plaintiffs had the opportunity to test the City’s evidence at trial, virtually all of the City’s evidence was undisputed. Indeed, although the Supreme Court’s findings of fact addressed only a small fraction of the matters covered in the overall trial record and, in key respects, exceeded the scope of the Court’s 2005 remand, see supra at 34-35, they generally set forth uncontroverted propositions, such as the location of non-adult materials in the 60/40 book and video stores and the times at which the 60/40 bars and clubs featured topless dancing. Thus, even accepting the Supreme Court’s incomplete findings (to the extent they are not inconsistent with this Court’s 2005 opinion), 62 these findings, together with the undisputed evidence, “fairly support” the City’s legislative judgments as a matter of law. 1. The City’s evidence fully supported its legislative judgment that the businesses were predominantly sexually focused. In its 2005 decision, this Court was clear that the City would be entitled to judgment as a matter of law if its evidence “fairly support[ed] its position” that the 60/40 businesses covered by the 2001 Amendments were like the establishments originally studied in that they “display[ed] a predominant, ongoing focus on sexually explicit materials and activities.” People Theatres, 6 N.Y.3d at 84. As fully summarized above, the City more than satisfied this burden based on the undisputed evidence, and the amendments should be declared constitutional. First, in People Theatres, the City showed that, of fourteen 60/40 book and video stores classified as adult under the 2001 amendments: (1) thirteen featured between seven and 60 peep booths; (2) at least six also featured buddy booths; (3) at least nine advertised their peep booths through interior and exterior signage in neon or large lettering; (4) most featured a “non-adult” section 63 with a large selection of merchandise intended for use in, and frequently depicting, sexual activities, such as sex toys, dildos, bondage gear, lingerie, oils, lotions, and condoms; (5) seven excluded minors; (6) some required customers to pass through the adult section in order to access most non-adult materials, and in others adult materials were directly adjacent to non-adult materials, or at least fully visible from the non-adult section; and (7) nine had window displays and signage highlighting the sexually focused and adult materials offered by the store. This evidence, which supplemented the evidence the City had submitted at summary judgment about twelve other 60/40 book and video stores in technical compliance with the 60/40 test, amply supported the City’s conclusion that 60/40 book and video stores considered to be adult under the 2001 amendments were predominantly sexually focused. Peep booths at a minimum promote the on-site viewing of sexually explicit materials, and it is common sense that these booths-particularly buddy booths, some of which have large holes cut into the walls between the booths- also promote on-site sexual activities. See, e.g., Hart Book Store, 64 Inc. v. Edmisten, 612 F.2d 821, 828-29 & n.9 (4th Cir. 1979) (graphically describing the results of one county’s inspections of the interiors of peep booths). Moreover, the stores’ use of their “non-adult” sections to promote merchandise intended for use in, and frequently portraying, sexual activity only reinforces their sexual focus, rather than detracting from it. When it approved the original 1995 zoning regulations, the CPC was clear that the regulations were not intended to cover general interest book and video stores devoting only a small portion of their stock to erotica. But the presence of an extensive and graphic selection of bondage gear, dildos, and sex toys in a “non-adult” section fails to indicate that the store is primarily a general interest book and video store. To the contrary, such merchandise resonates with a store’s adult book and video merchandise and with customers seeking that merchandise. The complete exclusion of minors from fully half of the stores also indicates that these stores are predominantly focused on sexually explicit materials, as fully explained above. Plaintiffs did 65 not provide any examples of other, non-adult book or video stores that commonly exclude minors entirely from their premises. Finally, window displays and signs advertising peep booths and triple-X magazines and videos, even where the signs are not huge or flashing, demonstrate that the stores continue to focus on the promotion of these materials. Thus, the City’s evidence amply supported its legislative judgment that many 60/40 businesses were in sham compliance with the City’s 1995 regulations. Next, in Ten’s Cabaret, the City showed that, of ten clubs in technical compliance with the 60/40 test: (1) all ten regularly featured topless dancing, typically six or seven days a week for up to 16 hours a day; (2) all ten offered patrons lap dances by topless dancers, either in open areas near the clubs’ stages, or in private or semi-private “VIP” rooms or cubicles; (3) seven used their “non- adult” sections merely to provide additional amenities or additional seating areas for their topless bar customers, and inspectors visiting these seven clubs almost never saw more than a few (or, in some cases, any) patrons in the non-adult sections; (4) the remaining three essentially each encompassed two separate 66 establishments, one of which, in each instance, was a topless bar or club; and (5) at least seven of the ten explicitly held themselves out as “gentlemen’s clubs” through their signage, advertising, and websites, which are sexual and graphic in nature. Again, this evidence amply supported the City’s conclusion that 60/40 clubs and bars had an ongoing, predominant focus on sexually explicit activities. That all 10 businesses feature topless dancing, including lap dancing, not just on a daily basis, but essentially continually for up to 16 hours a day and at all times while the businesses are open, speaks for itself. Furthermore, that nine of the ten clubs advertise themselves as gentlemen’s clubs through their signage and websites indicates that the clubs view themselves as predominantly focused on the sexually explicit activity of topless dancing. As the CPC emphasized in its 2001 report, the 60/40 test was never even intended to apply to topless clubs. The 1994 DCP Study included no establishments that featured “incidental topless dancing,” and there was, and is, no basis to conclude that the negative secondary effects of topless bars decrease simply because 67 topless dancing occurs in only part of an establishment. For example, it defies reason to conclude that Lace and Lace II, which used a similar amount of space for topless dancing at the time of trial as they did before the 1998 adoption of the 60/40 test, were somehow different than the establishments studied by DCP in 1994 simply because they opened a second-floor seating area. Similarly, it is illogical to conclude that plaintiff Ten’s Cabaret is not an adult establishment because it divided its floor space in two and opened an independent non-adult club in one portion. In any event, as fully set forth above, the City’s evidence more than satisfied its burden on remand with respect to the 60/40 bars and clubs as well as the 60/40 book and video stores. The evidence fully supports the City Council’s legislative judgment that these businesses maintained a predominant sexual focus and are therefore properly considered adult. 2. Plaintiffs’ evidence in no way undermined the credibility of the City’s evidence. In both cases, plaintiffs failed to come forward with any evidence showing that the City’s supplemental evidence was 68 incredible or that it could not reasonably rely on this evidence. Thus, although the City here reviews plaintiffs’ evidence briefly, it emphasizes that, because the lower courts could not reweigh the evidence de novo, this review is, strictly speaking, unnecessary. First, in People Theatres, plaintiff Mixed Emotions presented evidence regarding only three self-identified 60/40 book and video stores: Show World, Exquisite DVD, and plaintiff itself. But the City had already provided evidence of the predominant sexual focus of the first two of these establishments (as well as ten others). Plaintiff’s additional evidence did not show that the City had somehow inaccurately portrayed the characteristics of 60/40 businesses classified as “adult” under the 2001 Amendments. That Show World replaced the live nude dancing and live peep booths that it once featured in one part of its establishment with a comedy club does not negate the predominant sexual focus retained in the book and video store located in another portion of Show World, which features 60 peep booths and promotes adult materials. Indeed, Show World, which occupies a large building with multiple entrances and floors, is properly considered two 69 separate establishments-a comedy club and an adult bookstore. In any event, Show World is at most an exceptional case that could not undermine the City’s overall showing. At a minimum, the City “fairly supported” its position based on the numerous other establishments considered. Next, the testimony of the owner of Mixed Emotions actually supported the City’s position on sham compliance. He admitted that the bookstore featured 12 peep booths; excluded minors from the entire store; featured sex toys, dildos, lingerie, lotions, oils, and condoms in the “non-adult” section; and had external neon signage promoting peep booths and adult materials (PA648, 659, 662). Accordingly, the owner’s own testimony demonstrated that Mixed Emotions maintained a predominantly sexual focus. Finally, the video recording that plaintiff entered into evidence did not rebut the City’s showing that Exquisite DVD also retained a predominantly sexual focus (see Pl.’s Ex. 23, submitted to this Court under a separate cover). As the City’s voir dire of plaintiff’s witness revealed, the video recording did not fully and accurately depict the establishment, including: (1) the store’s 70 external signage promoting the establishment’s peep booths, (2) the lingerie for sale in the non-adult section, (3) the lingerie, lotions, oils, and condoms on display by the cash register, or (4) any portion of the adult section of the establishment (PA750-56). In any event, the City has amply supported its position even without reference to Exquisite DVD. Second, in Ten’s Cabaret, plaintiffs Ten’s Cabaret and Pussycat Lounge similarly submitted no evidence undermining the City’s showing in its direct case of the ongoing sexual focus of the ten 60/40 clubs. Plaintiffs presented no evidence regarding any other 60/40 “eating and drinking establishments” that were covered by the 2001 amendments, nor did they present any evidence at all regarding four of the ten establishments analyzed by the City in its direct case: Bare Elegance, Private Eyes, HQ, and Wiggles. Instead, plaintiffs devoted a significant portion of their case to presenting evidence purporting to show that 60/40 clubs did not cause negative secondary effects. However, as even the Appellate Division majority recognized, the Supreme Court should not have 71 allowed plaintiffs to present this evidence as an initial matter, as this Court’s 2005 decision was explicit that the City “was not required . . . to relitigate the secondary effects of adult uses” in these actions, “or to produce empirical studies connecting 60/40 businesses to adverse secondary effects.” People Theatres, 6 N.Y.3d at 83; see id. at 84; People Theatres, 131 A.D.3d at 286. To the extent that the Ten’s Cabaret plaintiffs presented evidence about six 60/40 businesses through cross-examination of the club owners called by the City on its direct case, none of this evidence refuted the City’s evidence. That Lace, Lace II, and VIP Club provided some amenities in addition to topless dancing did not demonstrate that they no longer resembled the businesses described in the 1994 DCP study, or that they no longer had a predominant sexual focus. To the contrary, the 1994 DCP Study emphasized that many topless bars in the City were then trying to cultivate an upscale image through such amenities (TR1734-35), and the City Council made a legislative judgment at the time that the clubs were properly regulated as adult in any event. Moreover, common sense dictates that providing additional amenities to 72 customers of topless dancing is fully consistent with a continuing focus on topless dancing. Similarly, that Pussycat Club, Ten’s Cabaret, and Vixen operated adjacent to their topless clubs essentially separate non- adult clubs-which, in the case of plaintiffs Pussycat and Ten’s, even operate under different names-does not indicate that they no longer resemble the clubs in the 1994 DCP study. To the contrary, Vixen and Pussycat use the same amount of space for topless dancing that they did before the 2001 amendments, and all three offer topless dancing and lap dancing continually while they are open. Thus, they also maintain a predominantly sexual focus, despite opening an adjacent non-adult club. Accordingly, plaintiffs have adduced no evidence showing the City’s evidence or conclusions to be “unsound,” and the amendments should be found constitutional on their face. Even if plaintiffs’ evidence rendered the issue of whether the 60/40 establishments are properly considered adult “fairly debatable”- which they do not-the City Council’s judgments must govern. See, e.g., Town of Islip, 73 N.Y.2d at 551; Fantasy Ranch, 459 F.3d 73 at 561 (“[A]lthough this evidence shows that [the City] might have reached a different and equally reasonable conclusion . . . , it is not sufficient to vitiate the result reached in the [City’s] legislative process.”) (quoting G.M. Enters., 350 F.3d at 639) (internal quotation marks omitted) (second and fourth alterations in original); Entm’t Prods., 721 F.3d at 738-39 (same). D. There Is No Viable As-Applied Challenge Before This Court in Ten’s Cabaret. On remand, in addition to contending that the City’s 2001 adult use zoning amendments were unconstitutional on their face, the Ten’s Cabaret plaintiffs (but not those in People Theatres) newly asserted that the amendments were unconstitutional as applied to their establishments. Because these purported as- applied challenges were first deemed cognizable by the Appellate Division in a non-final order in 2011, the City has not yet had the opportunity to contest that determination. For a host of reasons, this Court should dismiss these claims, which are not legally cognizable and which in any event fail on the merits. 74 When these cases were last before this Court in 2005, the Ten’s Cabaret plaintiffs did not raise any as-applied challenge to the amendments, even though the Appellate Division had dismissed their complaints in their entirety. See For the People Theatres of N.Y., Inc. v. City of New York, 20 A.D.3d 1, 22 (1st Dep’t 2005). Thus, this Court’s resulting decision did not entertain any as-applied challenge, and the Court made clear that the only issue on remand was whether the City’s evidence supported its legislative judgment on sham compliance. See People Theatres, 6 N.Y.3d at 83-84. At trial four years later, however, plaintiffs claimed that as- applied challenges-which they had never asserted before-had survived this Court’s 2005 decision. Their own counsel seemed unsure the claim was even pleaded: “Your Honor, . . . I’m looking at the complaint . . . , the very first cause of action I believe is an as-applied challenge” (TR708). Although the Appellate Division went on to deem these claims cognizable in 2011 over the objection of the City, no court has yet decided the merits of these challenges. Nonetheless, no remand is required for such a 75 determination. Plaintiffs’ claims are not cognizable in this context as a matter of law. As an initial matter, plaintiffs’ as-applied challenges should be deemed waived. Although plaintiffs had the opportunity to do so, they did not press any as-applied challenge on the first appeal to this Court in 2005, and are now barred from doing so. See, e.g., Katz v. City of New York, 231 A.D.2d 448, 448 (1st Dep’t 1996); N.Y. Tel. Co. v. Supervisor of Oyster Bay, 35 A.D.3d 417, 418 (2d Dep’t 2006), lv. denied, 8 N.Y.3d 808 (2007). For similar reasons, these challenges are barred by this Court’s 2005 decision, which was explicit that it was remanding for the determination of only a single issue. Waiver aside, plaintiffs’ challenges may be rejected without even reaching the merits because they rest on a flawed premise. Plaintiffs’ challenges rest on the theory that, even if other 60/40 businesses covered by the 2001 amendments are properly regulated as adult establishments because they are substantially similar to the businesses DCP determined produced negative 76 secondary effects in 1994, plaintiffs’ particular establishments are not “shams,” and thus may not be regulated. But this Court and the federal courts have been clear that this type of case-by-case analysis is inappropriate in this context. A locality’s reasonable judgments are entitled to deference, and a locality is not required to connect particular adult businesses to negative secondary effects. See People Theatres, 6 N.Y.3d at 83-84; Richland Bookmart, Inc. v. Knox Cnty., 555 F.3d 512, 524 (6th Cir. 2009). Under plaintiffs’ theory, however, the City would be required to do just that: conduct a case-by-case analysis to determine whether a specific business caused secondary effects. Once a legislative classification has survived the means-end analysis of intermediate scrutiny, a plaintiff may not evade regulation by arguing that their particular establishment does not cause the harms that the regulation is intended to address. Thus, a distinct as-applied challenge is not cognizable in this context. See Independence News, Inc. v. City of Charlotte, 568 F.3d 148, 155-57 & n.3 (4th Cir. 2009) (rejecting plaintiff’s as-applied 77 challenge as noncognizable and noting that it was unaware of any federal appellate court recognizing such a challenge). New York v. Ferber, 458 U.S. 747 (1982), which the First Department cited in support of its decision recognizing plaintiffs’ as-applied challenges, provides an instructive contrast. In Ferber, the Supreme Court upheld the constitutionality of a New York statute criminalizing the distribution of child pornography. See id. at 773-74. In response to concerns that the statute could be applied to medical textbooks or issues of National Geographic, the Supreme Court opined that such challenges could properly be brought as as-applied challenges if the law were ever applied to those categories of speech. See id. The as-applied challenges proposed by Ferber, then, were to be brought on behalf of a fundamentally different category of speech-medical and journalistic-than that which the state had sought to regulate, and presented fundamentally different constitutional issues than did the facial challenge. For example, while mere pornography may be obscenity unprotected by the First Amendment at all, 78 medical or journalistic speech with redeeming public value would be entitled to constitutional protection. Here, by contrast, plaintiffs’ as-applied challenges are essentially redundant of their facial challenges in terms of the constitutional issues presented and are therefore not properly analyzed separately. Indeed, a review of plaintiffs’ complaints reveals no distinct as-applied challenges. The complaints instead plead a single cause of action alleging that the 2001 amendments are unconstitutional, primarily because the City did not conduct entirely new studies connecting Ten’s Cabaret, Pussycat Lounge, and “other similarly-situated establishments” to negative secondary effects (TR19-23, 33-37). But that is the gravamen of plaintiffs’ facial challenge-and it is, moreover, a proposition that this Court already rejected in its 2005 decision. Federal courts have not evaluated as-applied challenges as distinct claims from facial challenges in the context of adult use zoning regulation, instead evaluating both challenges under the same standard. See Independence News, 568 F.3d at 155-57 & n.3; Richland Bookmart, 555 F.3d at 528-29. Any other practice would 79 enable businesses to undermine the general rule that localities need not connect individual businesses with secondary effects. In order to require a locality to conduct studies connecting each business to secondary effects, adult businesses would only need to sue separately and label their challenges “as-applied.” In any event, plaintiffs’ purported as-applied challenges fail as a matter of law on this record. The City adduced ample evidence that both plaintiffs were essentially comprised of two separate establishments-an adult club and a non-adult club- with different entrances, different operating hours, different publicity materials, and even different names. The businesses’ adult clubs, however, maintained a clear predominant sexual focus, in that they continuously featured topless dancing and lap dancing throughout their opening hours and held themselves out as adult establishments. For this, and for all of the above reasons, plaintiffs’ as-applied challenges should be rejected. ***** Because the standards for judicial review of legislative enactments are important, the stakes in this case are high. The 80 City, like many other localities in this State, has enacted reasonable adult use zoning laws for purposes this Court has already found constitutional. This Court and the U.S. Supreme Court have repeatedly held that such legislative enactments are entitled to deference, as localities have the first-hand, on-the- ground knowledge of their streets. See Town of Islip v. Caviglia, 73 N.Y.2d 544, 550 (1989). This is especially true when, as here, a locality acts to refine its adult use zoning regulations based on its enforcement experience. See Alameda Books, 535 U.S. at 451-52 (Kennedy, J., concurring) (emphasizing that localities “must have latitude to experiment” in determining how best to remedy serious urban problems). Reversal in this case is required under clear precedent to vindicate the City Council’s interests in protecting the quality of life of its residents through reasonable adult use zoning regulations. 81 CONCLUSION The order below should be reversed, the actions dismissed, and the 2001 Amendments found constitutional. Dated: New York, NY July 28, 2016 RICHARD DEARING ELIZABETH S. NATRELLA INGRID R. GUSTAFSON of Counsel Respectfully submitted, ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Appellants By: __________________________ INGRID R. GUSTAFSON Assistant Corporation Counsel 100 Church Street New York, NY 10007 212-356-0853 igustafs@law.nyc.gov
