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) REPLY BRIEF RICHARD DEARING ELIZABETH S. NATRELLA INGRID R. GUSTAFSON of Counsel December 16, 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 ARGUMENT POINT I ....................................................................................... 3 THIS COURT HAS JURISDICTION OVER THESE APPEALS ON MULTIPLE INDEPENDENT GROUNDS ......................................................................... 3 A. Two Justices of the Appellate Division Dissented on a Question of Law. ........................................................ 4 B. These Appeals Present a Substantial Constitutional Question. ..................................................................... 10 POINT II .................................................................................... 13 THE PLAINTIFF BUSINESSES HAVE NOT OVERCOME THE CITY’S SHOWING THAT IT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW . 13 A. Plaintiffs Do Not Persuasively Defend the Lower Court’s Failure to Defer to the City Council’s Legislative Judgments. ............................................... 13 B. Applying the Correct Standard of Review, the City Is Entitled to Judgment as a Matter of Law on Two Independent Grounds. ................................................ 20 1. Under the Appellate Division’s own reasoning, the City should prevail. ........................................... 21 TABLE OF CONTENTS (cont’d) Page ii 2. The undisputed evidence adduced at trial also satisfies the City’s burden as a matter of law. ....... 27 POINT III .................................................................................. 37 THIS COURT SHOULD DECLINE TO REVISIT MERITLESS ARGUMENTS IT REJECTED OVER A DECADE AGO ................................................................. 37 A. The Law of the Case Precludes Reconsideration of Plaintiffs’ Contentions. ............................................... 38 B. As This Court Has Already Concluded, These Contentions in Any Event Lack Merit. ...................... 42 POINT IV ................................................................................... 46 THERE IS NO VIABLE AS-APPLIED CHALLENGE BEFORE THIS COURT IN TEN’S CABARET ............... 46 CONCLUSION .......................................................................... 52 CERTIFICATE OF COMPLIANCE .......................................... 53 TABLE OF AUTHORITIES Page(s) iii State Cases 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176 (1978) ....................................................... 9 Betzag v. Gulf Oil Corp., 300 N.Y. 576 (1949) ................................................................... 12 Caitlin v. Sobol, 77 N.Y.2d 552 (1991) ................................................................... 5 City of N.Y. v. Stringfellow’s of N.Y., Ltd., 96 N.Y.2d 51 (2001) ................................................................... 25 Conason v. Megan Holding, LLC, 27 N.Y.3d 1033 (2016) ............................................................... 12 For the People Theatres of N.Y., Inc. v. City of N.Y., 6 N.Y.3d 63 (2005) ............................................................. passim For the People Theatres of N.Y., Inc. v. City of N.Y., 131 A.D.3d 279 (1st Dep’t 2015) ........................................ passim For the People Theatres of N.Y., Inc. v. City of N.Y., 84 A.D.3d 48 (1st Dep’t 2011) .............................................. 19, 23 For the People Theatres of N.Y., Inc. v. City of N.Y., 38 Misc. 3d 663 (Sup. Ct., N.Y. Co. 2012) ................................. 11 Gammoh v. City of Anaheim, 73 Cal.App.4th 186 (Cal. Ct. App. 1999) ................................... 50 Grumet v. Cuomo, 90 N.Y.2d 57 (1997) ................................................................... 11 Levandusky v. One Fifth Ave. Apartment Corp., 75 N.Y.2d 530 (1990) ................................................................... 5 TABLE OF AUTHORITIES (cont’d) Page(s) iv Matter of Westchester Cnty. Med. Ctr. ex rel. O’Connor, 72 N.Y.2d 517 (1988) ......................................................... 5, 9, 28 N.Y. Thruway Auth. v. State, 25 N.Y.2d 210 (1969) ................................................................. 12 Nahl v. Nahl, 177 A.D.2d 777 (3d Dep’t 1991) ................................................. 39 People v. Evans, 94 N.Y.2d 499 (2000) ........................................................... 22, 38 Santer v. Bd. of Educ., 23 N.Y.3d 251 (2014) ................................................................... 5 Schwartz v. Bogen, 30 N.Y.2d 648 (1972) ................................................................. 12 Shapira v. United Med. Serv., Inc., 15 N.Y.2d 200 (1965) ................................................................. 28 Stringfellow’s of N.Y., Ltd. v. City of N.Y., 91 N.Y.2d 382 (1998) ........................................................... 46, 48 Telaro v. Telaro, 25 N.Y.2d 433 (1969) ................................................................. 22 Town of Islip v. Caviglia, 73 N.Y.2d 544 (1989) ..................................................... 14, 41, 42 Ulster Home Care, Inc. v. Vacco, 100 N.Y.2d 556 (2003) ............................................................... 13 Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Publ’g Co., 36 N.Y.2d 803 (1975) ............................................... 38 TABLE OF AUTHORITIES (cont’d) Page(s) v Federal Cases Agostini v. Felton, 521 U.S. 203 (1997) .................................................................... 41 Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460 (7th Cir. 2009) ...................................................... 45 BBL, Inc. v. City of Angola, 809 F.3d 317 (7th Cir. 2015) ...................................................... 41 Ben’s Bar, Inc. v. Vill. of Somerset, 316 F.3d 702 (7th Cir. 2003) ................................................ 43, 44 City of L.A. v. Alameda Books, 535 U.S. 425 (2002) ............................................................ passim Ctr. for Fair Pub. Policy v. Maricopa Cnty., 336 F.3d 1153 (9th Cir. 2003) .................................................... 43 Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243 (9th Cir. 1982) .................................................... 26 Entm’t Prods., Inc. v. Shelby Cnty., 588 F.3d 372 (6th Cir. 2009) ...................................................... 33 Entm’t Prods., Inc. v. Shelby Cnty., 721 F.3d 729 (6th Cir. 2013) ...................................................... 43 Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546 (5th Cir. 2006) ........................................................ 8 Fantasyland Video, Inc. v. Cnty. of San Diego, 505 F.3d 996 (9th Cir. 2007) ...................................................... 26 Free Speech Coal., Inc. v. AG United States, 825 F.3d 149 (3d Cir. 2016) ................................................. 41, 42 TABLE OF AUTHORITIES (cont’d) Page(s) vi H&A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007) ........................................................ 7 ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994) ...................................................... 49 Independence News, Inc. v. City of Charlotte, 568 F.3d 148 (4th Cir. 2009) ...................................................... 49 McCullen v. Coakley, 134 S. Ct. 2518 (2014) ................................................................ 41 New Albany DVD, LLC v. City of New Albany, 581 F.3d 556 (7th Cir. 2009) ...................................................... 45 Peek-a-Boo Lounge of Bradenton, Inc. v. Manatee Cnty., 337 F.3d 1251 (11th Cir. 2003) ............................................ 16, 17 Prisco v. A&D Carting Corp., 168 F.3d 593 (2d Cir. 1999) ....................................................... 40 Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ...................................................... 2, 40, 41 City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986) ................................................................ 14, 41 Richland Bookmart, Inc. v. Knox Cnty., 555 F.3d 512 (6th Cir. 2009) ................................................ 15, 49 Tollis Inc. v. Cnty. of San Diego, 505 F.3d 935 (9th Cir. 2007) ...................................................... 44 Turner Broad. Sys. v. FCC, 520 U.S. 180 (1997) .............................................................. 19, 20 TABLE OF AUTHORITIES (cont’d) Page(s) vii World Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004) .................................................... 44 Young v. Am. Mini Theatres, 427 U.S. 50 (1976) ...................................................................... 14 Constitutions, Statutes, and Regulations Albany Zoning Code, art. II, § 375-7 .............................................. 29 Atlanta Code of Ords., pt. III, § 16-29.001 .............................. 26, 29 Buffalo Zoning Code, art. II, § 511-4(D) ........................................ 29 Charlotte, N.C. Gen. Stat. § 14-202.10 .......................................... 29 Chicago Code of Ords. § 16-16-030 ................................................ 29 Indianapolis Mun. Code, tit. IV, § 807-110 .............................. 26, 29 Jacksonville Mun. Code, tit. VI, § 150.103 .............................. 26, 29 Los Angeles Zoning Code § 12.70(B) ........................................ 26, 29 N.Y. Const., art. VI, § 3(b)(1) ......................................................... 10 N.Y. CPLR 5601 ............................................................................. 12 N.Y. CPLR 5601(a) ........................................................................... 4 N.Y. CPLR 5601(b)(1) ..................................................................... 10 N.Y.C. Zoning Resolution § 12-10 .................................................. 35 Phoenix Mun. Code, ch. 2 § 202 ..................................................... 35 Rochester Mun. Code, ch. 120, art. XXVI, § 120-208 ........ 26, 29, 35 San Antonio Mun. Code, art. IX, § 21-200 ............................... 26, 35 TABLE OF AUTHORITIES (cont’d) Page(s) viii San Diego Mun. Code, ch. 14, art. 1, div. 6, § 141.0601(a) ........................................................................ 26, 29 San Francisco Police Code, art. 11.2, § 791(a) ............................... 29 Other Authorities Gerard & Bergthold, Local Regulation of Adult Business (2017 ed.) .................................................................... 45 Karger, Powers of the N.Y. Ct. of App. (3d ed. 2005) ..................... 12 1 PRELIMINARY STATEMENT In amending the City’s adult use zoning regulations in 2001, the New York City Council made a series of complex judgments. Based on the City’s enforcement experience, the City Council concluded that most of the adult businesses intended to be covered by the City’s initial ordinance had evaded regulation. Instead, those businesses continued to operate in the same locations, even though they also continued to exhibit the characteristics of the businesses the City Council had initially intended to require to move to non-residential districts. Although this Court held in its 2005 remittitur order that the City’s legislative judgments were entitled to deference, and that the only question for remand was whether the City could produce evidence “fairly support[ing]” those judgments, the lower courts did not apply a deferential standard of review. Instead, they improperly substituted their judgment for the City Council’s on how to weigh the criteria for determining whether a business is properly considered adult. They also made an improper de novo 2 determination based on the evidence at trial that businesses identified by the City Council as adult were not, in fact, adult. The plaintiff businesses in both appeals essentially concede that the lower courts weighed the evidence de novo and that the City adduced evidence supporting its legislative judgments. They wholly fail, however, to offer any persuasive defense of the lower courts’ refusal to follow this Court’s remand instructions. Instead, they raise a host of meritless arguments-many of which also fall outside the narrow scope of this Court’s remittitur order. In People Theatres, the plaintiff primarily contends that the conclusions of the lower courts were reasonably supported. But as the City demonstrated in its main brief, the relevant question for remand was whether the City Council’s determinations were supported. As the City also extensively demonstrated, they were. In Ten’s Cabaret, the plaintiffs defend the lower courts’ decisions only briefly. Instead, citing Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), they try to resurrect an argument rejected by this Court over a decade ago. But revisiting that argument, which is in any event meritless, is barred by the doctrine of the law of 3 the case and would significantly prejudice the City. Moreover, even plaintiffs concede that the reasoning of Reed, which applied strict scrutiny to municipal sign regulations, simply does not apply in the adult use zoning context. At bottom, nothing in plaintiffs’ briefs warrants departure from three decades of precedent deferring to the reasonable legislative judgments underlying adult use zoning regulations. Courts have long recognized that zoning is an essential local government function, and that localities have the expertise to make the complex judgments about how to best promote the quality of urban life for their citizens. In reliance on these principles, municipalities around this State have enacted reasonable adult use zoning ordinances. Reversal is required to vindicate the interests protected by these ordinances. ARGUMENT POINT I THIS COURT HAS JURISDICTION OVER THESE APPEALS ON MULTIPLE INDEPENDENT GROUNDS Despite plaintiffs’ contentions (TC Br. at 19-23; PT Br. at 28-37), this Court has subject matter jurisdiction over these 4 appeals on two independent statutory grounds (App. Br. at 38-39). Additionally, because there is a substantial question whether the decisions of the lower courts conflict with this Court’s 2005 remittitur order, this Court has inherent authority to review those decisions for compliance with that order. A. Two Justices of the Appellate Division Dissented on a Question of Law. This Court has jurisdiction because the Appellate Division’s decision finally determined the action and two justices dissented on a question of law in favor of the City. See N.Y. CPLR 5601(a). As both the majority and the dissent recognized, in reaching different conclusions about the Amendments’ constitutionality, each relied on fundamentally different analytical frameworks. In its opinion, the dissent expressly criticized the majority for creating a novel mandatory multi-factor balancing test, under which the majority improperly reweighed the evidence and struck down the Amendments. See For the People Theatres of N.Y., Inc. v. City of N.Y., 131 A.D.3d 279, 302 (1st Dep’t 2015) (Andrias, J., dissenting) (“The majority’s mechanical and mathematical 5 approach . . . elevates the City’s burden of proof.”). Unlike the majority, the dissent would have applied a deferential standard of review and then held that the City satisfied its burden of proof. Compare id. at 302-03 (City need only come forward with “very little evidence”), with id. at 289 (majority opinion) (“very little evidence” standard did not apply, “contrary to the position taken by the dissent”). These disagreements over the correct standard of review and the City’s burden of proof present legal questions that establish jurisdiction. See, e.g., Levandusky v. One Fifth Ave. Apartment Corp., 75 N.Y.2d 530, 533 (1990); Santer v. Bd. of Educ., 23 N.Y.3d 251, 272 n.1 (2014) (Rivera, J., dissenting) (“obvious” that whether proper legal framework had been applied is question of law). Whether a party has satisfied its burden of proof is also a question of law. E.g., Caitlin v. Sobol, 77 N.Y.2d 552, 562 n.4 (1991) (whether agency satisfied rational basis review was question of law); Matter of Westchester Cnty. Med. Ctr. ex rel. O’Connor, 72 N.Y.2d 517, 522 & n.3 (1988) (sufficiency of record to satisfy clear- and-convincing-evidence standard was question of law). 6 In contending that the justices merely assessed the evidence differently and thus the dissent was not on a question of law (PT Br. at 34-35; TC Br. at 23), plaintiffs ignore the relevant portions of the Appellate Division’s analysis. Before even considering the evidence, the justices expressly announced that they were using substantially different analytical frameworks. Similarly, plaintiffs conflate distinct inquiries when they characterize one of the legal issues presented by these appeals- whether the City satisfied its burden of proof to fairly support its legislative judgments-as a fact question (TC Br. at 18, 20-23; PT Br. at 1-2, 30). These cases do involve factual issues, such as how many 60/40 book and video stores have peep booths showing sexually explicit materials, and whether 60/40 topless clubs advertise as adult establishments. But the existence of some factual issues does not indicate that all issues are factual. As the City explained in its opening brief (App. Br. at 42-51), the ultimate question framed by this Court’s remittitur order was not one of fact. Rather, this Court’s 2005 order reaffirmed that the discretion “accorded most local legislative actions extends to adult 7 use zoning,” and held that the question for remand was whether the City had “fairly supported” its legislative judgments. For the People Theatres of N.Y., Inc. v. City of N.Y., 6 N.Y.3d 63, 81, 84 (2005). Thus, as framed by this Court, the issue for remand was the legal question whether the City’s evidence satisfied its burden of proof. See id.; see also City of L.A. v. Alameda Books, 535 U.S. 425, 438 (2002) (plurality opinion); id. at 449, 451-52 (Kennedy, J., concurring in the judgment). Applying the same standard that this Court outlined in its 2005 opinion, the U.S. Court of Appeals for the Fifth Circuit reached precisely this conclusion in H&A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007). In that case, the Fifth Circuit recognized that Alameda Books requires municipalities to come forward with relevant evidence supporting their legislative judgments, which in turn necessitates factual determinations as to the existence of evidence. See id. at 388. Nonetheless, the court held that whether a municipality’s evidence was relevant and thus satisfied its burden of proof turned on legal interpretation and was thus a question of law. See id. 8 To be sure, this Court’s 2005 opinion at one point referred to the question of predominant sexual focus as a “triable question of fact” and a “factual dispute” (TC Br. at 20 [citing People Theatres, 6 N.Y.3d at 84]). But these isolated phrases cannot bear the weight the Ten’s Cabaret plaintiffs would ascribe to them. It is not uncommon for courts applying Alameda Books’ burden-shifting framework to refer to material issues of fact. These courts, like this Court in 2005, nonetheless apply a deferential standard. See, e.g., Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 561 (5th Cir. 2006) (“material fact” was whether adult use zoning ordinance was supported by evidence reasonably believed to be relevant). This deferential standard is incompatible, however, with a garden-variety trial at which Supreme Court makes findings of fact based on a de novo weighing of the evidence. To the contrary, as the dissenting justices in the Appellate Division concluded, the inquiry here is analogous to the familiar inquiry whether an agency decision is supported by substantial evidence. See People Theatres, 131 A.D.3d at 301 (Andrias, J., dissenting). As this Court has long held, that inquiry, which also 9 asks whether a government body’s findings are supported by credible evidence, is a question of law. See 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 181 (1978). Finally, plaintiffs’ contention that the City here seeks review of affirmed findings of fact is inaccurate (TC Br. at 2-3; PT at 30- 31). In its opening brief, the City did not dispute Supreme Court’s factual findings-flawed and incomplete though they were (App. Br. at 34-35). Instead, the City demonstrated that it is entitled to judgment as a matter of law because: (1) the Appellate Division majority’s conclusion that the City’s evidence supported its legislative judgments satisfied the City’s burden of proof as a matter of law (id. at 52-61), and (2) Supreme Court’s findings of fact, together with undisputed record evidence, “fairly support” the City’s legislative judgments (id. at 61-73). Neither argument requires this Court to disturb any findings of fact or make factual findings. Cf. Westchester Cnty., 72 N.Y.2d at 522 (review of record for sufficient evidence to satisfy clear-and-convincing-evidence standard was not improper factual review); 300 Gramatan, 45 N.Y.2d at 181. The City seeks review 10 of only legal questions. In particular, the City seeks review of the precise legal questions that formed the basis for the dissent below. B. These Appeals Present a Substantial Constitutional Question. This Court also has jurisdiction on the independent ground that these appeals directly involve the construction of the New York Constitution. See N.Y. Const., art. VI, § 3(b)(1); N.Y. CPLR 5601(b)(1). As the conflicting Appellate Division opinions illustrate, the central issue before this Court is the ultimate evidentiary showing a municipality must make in order to sustain the constitutionality of an adult use zoning ordinance. In its 2005 opinion, this Court held that the City had satisfied its prima facie burden to show the constitutionality of the Amendments. See People Theatres, 6 N.Y.3d at 81-82. But this Court also held that the City had not yet met its ultimate burden on one of the elements of intermediate scrutiny: whether the Amendments were narrowly tailored. See id. at 81-83. The issue now before this Court is thus whether the evidence adduced by the City satisfies its burden on that element, a question directly 11 involving constitutional construction. See Grumet v. Cuomo, 90 N.Y.2d 57, 67-68 (1997) (whether state statute satisfied test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), directly involved construction of Constitution). Indeed, the constitutionality of the City’s 2001 Amendments hangs in the balance in these appeals. It is baffling that plaintiffs in both appeals insist that these cases do not involve a constitutional question because this Court upheld the City’s Amendments in 2005 (TC Br. at 19 & n.14; PT Br. at 28-29, 32). If this Court had upheld the Amendments in 2005, the issue would have been res judicata, and Supreme Court and the Appellate Division could not have struck the Amendments down as unconstitutional years later, as they did. See People Theatres, 131 A.D.3d at 294 (striking Amendments down as unconstitutional); For the People Theatres of N.Y., Inc. v. City of N.Y., 38 Misc. 3d 663, 676 (Sup. Ct., N.Y. Co. 2012) (same). Indeed, if this Court had upheld the constitutionality of the Amendments in 2005, we would not be here now. To the extent plaintiffs contend that certain issues in these appeals are governed by questions this Court decided in 2005, 12 however, the City agrees. As the City demonstrated in its opening brief (App. Br. at 42-51), this Court’s remittitur order correctly framed a deferential standard of review for remand, but the lower courts failed to comply. Far from stripping this Court of subject matter jurisdiction, however, the lower courts’ failure to apply the proper legal framework presents a further basis for jurisdiction and, ultimately, reversal. This Court has inherent authority to ensure compliance with a remittitur order, and an appeal as of right lies to enforce such an order. See, e.g., N.Y. Thruway Auth. v. State, 25 N.Y.2d 210, 219 (1969); Karger, Powers of the N.Y. Ct. of App. § 5:30 (3d ed. 2005). This is true even if the order on review does not otherwise satisfy the finality and appealability requirements set forth in N.Y. CPLR 5601. See, e.g., Schwartz v. Bogen, 30 N.Y.2d 648, 649, 331 (1972); Betzag v. Gulf Oil Corp., 300 N.Y. 576, 577 (1949); cf. Conason v. Megan Holding, LLC, 27 N.Y.3d 1033 (2016) (application to enforce remittitur properly brought by appeal, not motion). It is also true even if the decision on appeal does not contravene an explicit directive of this Court, but only conflicts, in effect, with a 13 previous order of this Court. See Ulster Home Care, Inc. v. Vacco, 100 N.Y.2d 556, 558 (2003). Here, because the lower courts failed to comply with this Court’s remittitur order, an appeal as of right also lies to enforce that order. Thus, this Court has jurisdiction on this ground as well as the two statutory grounds outlined above. POINT II THE PLAINTIFF BUSINESSES HAVE NOT OVERCOME THE CITY’S SHOWING THAT IT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW A. Plaintiffs Do Not Persuasively Defend the Lower Court’s Failure to Defer to the City Council’s Legislative Judgments. Plaintiffs do not dispute key points from the City’s opening brief. They do not deny that courts have long applied a deferential standard to the legislative judgments underlying adult use zoning ordinances, asking only whether municipalities have relied on evidence “reasonably believed to be relevant” to the problems they seek to address. People Theatres, 6 N.Y.3d at 79-80 (quoting Alameda Books, 535 U.S. at 438, 451-52). They also do not deny 14 that courts do so for important reasons, including that zoning lies at the heart of legislative power and expertise.1 Plaintiffs nonetheless concede that the lower courts weighed the evidence de novo, expunging all deference to the City Council’s legislative judgments and striking down the Amendments even though the City produced evidence fairly supporting those judgments (TC Br. at 27-28; PT Br. at 38, 63). But plaintiffs do not advance any persuasive defense of the lower courts’ lack of deference, nor do they cite any authority supporting their novel position that deference was not required. Instead, plaintiffs raise a 1 See, e.g., Alameda Books, 535 U.S. at 439 (plurality opinion) (“Our deference to the evidence presented by the city . . . is the product of a careful balance between competing interests.”); id. at 451-52 (Kennedy, J., concurring in the judgment) (“[The] City Council knows the streets of Los Angeles better than we do . . . . [I]f its inferences appear reasonable, we should not say there is no basis for its conclusion.” (internal citations omitted)); City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 54 (1986) (ordinance seeking to preserve quality of life by restricting adult theaters to certain areas “is the essence of zoning”); Young v. Am. Mini Theatres, 427 U.S. 50, 80 (1976) (Powell, J., concurring) (zoning is “the most essential function” performed by localities, which are better positioned to “protect that sometimes difficult to define concept of quality of life”); People Theatres, 6 N.Y.3d at 81 (“[L]egislators cannot act, and cannot be required to act, only on judicial standards of proof.” (quoting N.W. Enters. Inc. v. Houston, 352 F.3d 162, 180 (5th Cir. 2003))); Town of Islip v. Caviglia, 73 N.Y.2d 544, 550 (1989) (“The 8 members of the judiciary are hardly authorities on zoning and planning competent to frame broadly based provisions of an ordinance sufficient to meet the needs of the community and protect it from the harms caused by adult uses.”). 15 variety of unsupported and illogical arguments, most of which the City already rebutted in its opening brief. As the City demonstrated (App. Br. at 45-51), the City was not required to satisfy a heightened burden of proof simply because this case proceeded to trial (TC Br. at 27-28). This Court expressly stated that, on remand, the City need only come forward with evidence that “fairly supported” its legislative judgments, People Theatres, 6 N.Y.3d at 84, which was the precise language this Court used to describe the City’s initial burden, see id. at 79- 80. Thus, although the City was required to produce supplemental evidence at trial, its ultimate burden remained the same. Nor would limiting this Court’s deferential standard of review to the City’s initial showing make sense. The reasons the judiciary defers to municipalities in this area apply regardless of procedural posture. Federal courts have repeatedly held that municipalities have fully satisfied their burden to show the constitutionality of their adult use ordinances-not simply come forward with enough evidence to survive summary judgment-in reliance on a deferential standard. See, e.g., Richland Bookmart, 16 Inc. v. Knox Cnty., 555 F.3d 512, 527-28, 534 (6th Cir. 2009). Plaintiffs do not point to any other legal framework in which a party’s ultimate burden of proof increases between summary judgment and trial, or in which constitutional requirements vary depending on the procedural posture of a case. The sole case cited by plaintiffs on this point (TC Br. at 28)- Peek-a-Boo Lounge of Bradenton, Inc. v. Manatee County, 337 F.3d 1251 (11th Cir. 2003)-in fact supports the City’s position. In that case, the Eleventh Circuit held that the relevant inquiry on remand was the same as at summary judgment: the defendant county must show that the “legislative judgment” underlying its ordinance was “supported by credible evidence, upon which the City reasonably relies.” Id. at 1273. The court cautioned the trial court on remand “not to substitute its own judgment for that of the County.” Id.2 This is precisely the standard of review outlined by the City in its opening brief (App. Br. at 45-51). 2 Plaintiffs’ contrary interpretation of Peek-a-Boo Lounge is based on a single phrase taken out of context. But that the Eleventh Circuit once used the phrase “preponderance of the evidence” in its opinion does not indicate that the court was instructing the trial court to apply a non-deferential standard (cont’d on next page) 17 Plaintiffs are also mistaken in insisting that they “discredited” the evidence the City initially produced, such that the City must now satisfy a heightened standard of review (TC Br. at 27). This Court merely held that plaintiffs had adduced enough evidence to “dispute[]” the City’s evidence, and that the City must come forward with additional evidence at trial. People Theatres, 6 N.Y.3d at 84. Considering the distinct character of the evidence both parties adduced at summary judgment-evidence about secondary effects (plaintiffs) and evidence about the nature of the establishments (the City)-any assertion that plaintiffs’ evidence “discredited” the City’s defies common sense. In any event, plaintiffs do not provide any support for the proposition that raising an issue with respect to the City’s evidence heightens the City’s overall burden of proof. of review on remand. To the contrary, far from holding that the county must prove its judgments to be true based on the preponderance of the evidence, the court held that the trial court must evaluate the evidence in the record to determine if there “remain[ed] credible evidence” for the County to rely upon. Peek-a-Boo Lounge, 337 F.3d at 1253. That inquiry is incompatible with the de novo weighing of the evidence plaintiffs are attempting to defend. 18 Next, in People Theatres, although plaintiff baldly asserts that the lower courts did not substitute their judgment for the City Council’s (PT Br. at 52), plaintiff provides no support for that assertion. Indeed, plaintiff does not even attempt to defend this assertion with respect to the Appellate Division, instead making the illogical claim that the City waived any objection to the Appellate Division’s 2015 opinion by not objecting to it in 2012 (id. at 54; see also infra at pp. 21-24). With respect to Supreme Court, plaintiff merely claims that Supreme Court was not biased against the City and “objectively” assessed the evidence (PT Br. at 52-54). But even if true, an “objective” de novo evaluation of the evidence is still a de novo evaluation. The City’s fundamental point is that Supreme Court could not reweigh the evidence at all. Plaintiff’s further contention that Supreme Court’s analysis was proper based upon directions given in an interlocutory First Department decision is both incorrect and irrelevant (PT Br. at 50, 63). In that interlocutory decision, the First Department expressly instructed Supreme Court that the deferential “very little evidence” standard continued to apply on remand-a 19 direction Supreme Court ignored. For the People Theatres of N.Y., Inc. v. City of N.Y., 84 A.D.3d 48, 62 (1st Dep’t 2011). In any event, the lower courts were bound by this Court’s 2005 opinion, which held that a deferential standard of review applied on remand. The legal framework outlined in an Appellate Division opinion could not override this Court’s instructions. Nor, in any event, can any Appellate Division decision bind this Court now. Finally, for reasons already discussed in the City’s main brief (App. Br. at 44-45, 49), the import of applying intermediate scrutiny is not that deference evaporates, as plaintiffs contend (TC Br. at 28; PT Br. at 61-62), but that the City must come forward with relevant evidence. Courts applying intermediate scrutiny- including this Court in its 2005 decision-consistently also apply deferential standards of proof (App. Br. at 44-45, 49). For example, in Turner Broadcasting Systems v. FCC, 520 U.S. 180 (1997), the U.S. Supreme Court applied the deferential “substantial evidence” standard in the context of intermediate scrutiny. See id. at 195. As the Supreme Court explained, it did so in recognition of the reality that legislatures are better situated to 20 make empirical judgments about the need for a particular law, and in recognition of fundamental separation-of-powers principles, which dictate that such judgments fall within the legislature’s purview. See id. In the adult use zoning context, deference is warranted for both reasons. It is also warranted because of the unique importance of the zoning power to local government. Thus, plaintiffs have not overcome the City’s showing that this Court did not remand for a garden-variety trial, but for a special type of proceeding to test whether sufficient evidence and reasonable inferences supported the City’s legislative judgments (App. Br. at 39-51). Nor have plaintiffs overcome the City’s showing that this deferential standard of review comported with established principles of law. B. Applying the Correct Standard of Review, the City Is Entitled to Judgment as a Matter of Law on Two Independent Grounds. Once the standard of review is properly understood, it becomes clear that the City is entitled to judgment as a matter of law. The Appellate Division majority’s own finding that the City’s evidence supported its legislative judgments should have led the 21 court to enter judgment for the City. Moreover, a review of the undisputed evidence in the trial record reveals that the City amply satisfied its burden of proof. Plaintiffs’ arguments, which rely on the wrong standard of review, are unavailing. 1. Under the Appellate Division’s own reasoning, the City should prevail. In both appeals, plaintiffs fail to offer any substantive rejoinder to the City’s contention that this Court should uphold the 2001 Amendments based on the Appellate Division majority’s own evaluation of the record (App. Br. at 52-61). Indeed, the plaintiffs in Ten’s Cabaret never even address this argument, relying instead on a general (and incorrect) argument that the lower courts properly weighed the evidence de novo. Also failing to advance any persuasive argument on the merits, the People Theatres plaintiff insists that the City somehow waived this contention by not raising it in 2012 before Supreme Court (PT Br. at 54-57). That contention is nonsensical. The City could not have objected to a 2015 decision three years earlier. 22 To the extent plaintiff appears to argue that the City’s contentions are in fact criticisms of an interlocutory Appellate Division decision from 2011, that claim is both irrelevant and wrong. Even if the City’s arguments are deemed to bring the 2011 opinion up for review, the City could not have waived any objection to that decision. On remand to Supreme Court, and on subsequent appeals to the Appellate Division, the 2011 opinion was the law of the case, and it would have been “bootless and inappropriate” to urge the lower courts to depart from it. Telaro v. Telaro, 25 N.Y.2d 433, 437 (1969); see also People v. Evans, 94 N.Y.2d 499, 502-04 (2000). In any event, plaintiff mischaracterizes the City’s argument. In its opening brief, the City clearly objected to the Appellate Division majority’s decision from 2015, which is the decision on appeal (App. Br. at 52-61). Plaintiff fails to recognize that the Appellate Division’s 2015 decision substantially departed from the court’s 2011 decision. Indeed, although the 2011 decision suggested various criteria that “might” be relevant in evaluating whether 60/40 businesses 23 displayed a predominantly sexual focus, People Theatres, 84 A.D.3d at 61-62, it was the 2015 decision that created a mandatory checklist based on four specific criteria, see People Theatres, 131 A.D.3d at 289; see also id. at 300, 302-03 (Andrias, J., dissenting) (outlining points of departure). Similarly, although the 2011 decision held that the City need only present “very little evidence” supporting its position, People Theatres, 84 A.D.3d at 62-63, the 2015 decision held that the “very little evidence” standard did not apply, People Theatres, 131 A.D.3d at 289. It was this fundamental shift in legal framework that the City criticized in its main brief. The City has never argued that certain criteria considered by the Appellate Division-signage, layout, and admission policies regarding minors-are irrelevant to whether 60/40 book and video stores retain a predominantly sexual focus. To the contrary, the 2001 Amendments provide that these criteria may identify a business as adult (App. Br. at 13-14 [summarizing criteria]), and at trial, the City presented extensive evidence on these issues (App. Br. at 21-26). The Appellate Division’s errors lay in substituting its judgment for the City 24 Council’s on how to weigh these various criteria, and in making a de novo determination based on the evidence adduced at trial after finding that the City had satisfied its burden of proof.3 The Appellate Division majority’s analysis on just one of these criteria-the admission of minors-illustrates the City’s point. The 2001 Amendments reflect the City Council’s reasonable judgment that: (1) the exclusion of minors identifies a business as adult, but (2) some businesses that do not exclude minors are nonetheless properly considered adult. In creating its checklist, however, the Appellate Division ignored this judgment, and held that the admission of minors outweighs other considerations indicating that a 60/40 business were nonetheless properly considered adult. But as the City explained in its main brief, it does not follow-either logically or practically-that the absence of a factor 3 Plaintiff’s inaccurate characterization of the City’s position on this issue is by no means isolated. Throughout their briefs, plaintiffs in both appeals selectively quote snippets from various papers filed by the City before and during this extensive litigation. These self-serving representations notwithstanding, the City’s position on the proper analytical framework for these cases has never wavered. 25 that might otherwise identify a 60/40 business as adult negates a predominant sexual focus (App. Br. at 54-60). Indeed, this Court explicitly rejected a similar argument by plaintiff Ten’s Cabaret in an earlier appeal to this Court (App. Br. at 58-59 [discussing City of N.Y. v. Stringfellow’s of N.Y., Ltd., 96 N.Y.2d 51, 54-55 (2001), which held that topless clubs admitting minors were nonetheless properly regulated as adult]). The plaintiff in People Theatres also mischaracterizes the City’s argument on a second ground, this time claiming that the City’s core argument is that its evidence about peep booths outweighs all other evidence (PT Br. at 46-49). But even the Appellate Division majority found that the City’s evidence was not limited to peep booths; in addition to evidence about peep booths featuring adult videos, the majority found that the City had “support[ed] [its] argument that [60/40 book and video] stores are predominantly sexually focused” by producing evidence about buddy booths, promotional signage, window and interior displays, and store layouts. People Theatres, 131 A.D.3d at 291. 26 Moreover, plaintiff does not adequately explain why it would be unreasonable for the City to determine that maintaining peep booths showing adult videos-and even a single peep booth (PT Br. at 53)-correlates with a predominantly sexual focus. Indeed, numerous cities across the country classify businesses as adult for regulatory purposes based solely on the presence of peep booths and, in many cases, even a single peep booth.4 Courts have long upheld these regulations, which rely on the reasonable inference that on-site consumption of sexually explicit materials produces secondary effects like petty crime, prostitution, and unsanitary conditions. See, e.g., Fantasyland Video, Inc. v. Cnty. of San Diego, 505 F.3d 996, 1002-04 (9th Cir. 2007); Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1245 n.1, 1246-47 (9th Cir. 1982). 4 See, e.g., Atlanta Code of Ords., pt. III, § 16-29.001 (definition of “adult mini-motion picture theater”); Indianapolis Mun. Code, tit. IV, § 807-110 (definition of “adult motion picture arcade”); Jacksonville Mun. Code, tit. VI, § 150.103 (definition of “adult entertainment”); Los Angeles Zoning Code § 12.70(B)(1) (definition of “adult arcade”); Rochester Mun. Code, chap. 120, art. XXVI, § 120-208 (definitions of “adult arcade” and “sexually oriented business”); San Antonio Mun. Code, art. IX, § 21-200 (definition of “adult arcade”); San Diego Mun. Code, chap. 14, art. 1, div. 6, § 141.0601(a)(10) (definition of “adult peep show business”). 27 In any event, plaintiff veers into irrelevancy by speculating that the City could not reasonably regulate a book store with a single peep booth in the basement as adult (PT Br. at 53). At trial, the City produced evidence that actual 60/40 book and video stores doing business in the City had between 7 and 60 booths featuring adult films, and that they exhibited other indicia of predominant sexual focus. Plaintiff cannot now rely on unproven hypotheticals to dispute the City’s evidence at trial and attempt to satisfy its own heavy burden of proving that the City’s evidence was “irrelevant” and its inferences “unsound.” Thus, even without considering the City’s alternate ground for reversal, these proceedings should be at an end. The Appellate Division found that the City adduced evidence supporting its judgments, satisfying the City’s burden of proof as a matter of law. 2. The undisputed evidence adduced at trial also satisfies the City’s burden as a matter of law. Plaintiffs do not deny that the City adduced evidence at trial supporting its position that the 60/40 businesses covered by the 2001 Amendments maintained a predominantly sexual focus (App. 28 Br. at 19-33). But that evidence, which was undisputed, satisfied the City’s burden of proof and should lead this Court to enter judgment for the City (id. at 52-67, 67-73). See also Shapira v. United Med. Serv., Inc., 15 N.Y.2d 200, 221 (1965) (where facts are undisputed, Court of Appeals can properly decide appeal as a matter of law); Matter of Westchester Cnty. Med. Ctr. ex rel. O’Connor, 72 N.Y.2d 517, 522 (1988) (reversing Appellate Division based on independent evaluation of sufficiency of record evidence). Plaintiffs’ disparate contentions on appeal cannot overcome the City’s showing. Once the City met its burden, plaintiffs were required to come forward with evidence showing the City’s evidence to be irrelevant, or its reliance on the evidence to be “unsound.” See Alameda Books, 535 U.S. at 442 (plurality opinion); id. at 453 (Kennedy, J., concurring in the judgment). Plaintiffs, however, wholly failed to do so. In Ten’s Cabaret, the plaintiff clubs barely even address the City’s evidence, let alone show it to be incredible. In a single footnote, plaintiffs insist that the City must do more than prove that 60/40 clubs regularly feature topless dancing in order to 29 satisfy its burden, and assert, without explanation or citation, that this was all the City showed at trial (TC Br. at 26 n.19). That conclusory assertion is simply inaccurate, however. As the City’s detailed recitation of the evidence it produced at trial demonstrates, the City’s evidence on topless dancing as well as other key points is best characterized as overwhelming (App. Br. at 26-33, 62-67, 71-73).5 Ignoring the City’s extensive evidence, plaintiffs instead quibble about a few subsidiary issues that are irrelevant in the final analysis. First, although plaintiffs concede that, on virtually 5 Nonetheless, the City again emphasizes that the legislature never intended to apply the 60/40 test to topless clubs, and that its determination that any club regularly featuring topless dancing is properly considered adult is fully reasonable (App. Br. at 66-67). The City has reviewed dozens of municipal zoning ordinances. None of these ordinances classifies a club or bar featuring topless dancing as non-adult based solely on the floor space it devotes to topless or nude dancing. Instead, that a club “regularly features” topless or nude dancing is typically enough. See, e.g., Albany Zoning Code, art. II, § 375- 7 (“features”); Atlanta Code of Ords., pt. III, § 16-29.001 (“features”); Buffalo Zoning Code, Art. II, § 511-4(D) (“features or includes”); Charlotte, N.C. Gen. Stat. § 14-202.10 (“shows”); Chicago Code of Ords. § 16-16-030 (“features”); Indianapolis Mun. Code, tit. IV, § 807-110 (“regularly features”); Jacksonville Mun. Code, tit. VI, § 150.103 (“permits”); Los Angeles Zoning Code § 12.70(B)(3) (“regularly features”); Rochester Mun. Code, chap. 120, art. XXVI, § 120-208 (“regularly features”); San Diego Mun. Code, chap. 14, art. 1, div. 6, § 141.0601(a)(3) (“features” on 7 out of 56 consecutive calendar days); see also San Francisco Police Code, art. 11.2, § 791(a) (presents nude dancing during 10 percent of annual presentation time). 30 every visit to a 60/40 club, City inspectors observed significantly more patrons in the adult sections of their clubs than in the “non- adult” sections, they complain that inspectors did not visit the clubs more frequently late at night during their busiest hours (TC Br. at 33). But plaintiffs’ own summary of the visits demonstrates that City inspectors visited the clubs at various times when they were open, including in the evening and late at night (id.). In any event, this limited contention does not satisfy plaintiffs’ burden. Second, the City has repeatedly demonstrated that the existence of record evidence that might support a judgment that 60/40 clubs are not predominantly sexually focused is insufficient to overcome the City’s showing because the court may not reweigh the evidence (App. Br. at 42-51). In any event, the only evidence plaintiffs point to-that a few clubs made significant changes to their interiors to comply with the 60/40 rule, and that some clubs used less garish signage after the Amendments (TC Br. at 24- 25)-does not come close to outweighing the City’s extensive evidence (App. Br. at 26-33, 62-67, 71-73), let alone satisfying plaintiffs’ burden. 31 Third, plaintiffs concede that this Court’s 2005 decision held that the City was not required to conduct new studies connecting 60/40 establishments to secondary effects in order to carry its burden of proof (TC Br. at 32). They nonetheless insist that, once they presented their evidence on secondary effects at trial, the City was required to come forward with its own evidence (id.; see also id. at 26 & n.19, 30). But the improper admission of plaintiffs’ evidence at trial cannot overcome this Court’s binding direction that the City need not relitigate secondary effects. Fourth, plaintiffs defy both the Court’s 2005 order and common sense in their bald assertion that the City did not satisfy its burden at trial because it did not prove that the businesses it analyzed in fact had a 60/40 configuration, but only that they self- identified as 60/40 clubs (TC Br. at 24-25, 30-31). This Court expressly directed the City to produce evidence “relating to the purportedly sham character of self-identified 60/40” businesses on remand. People Theatres, 6 N.Y.3d at 84 (emphasis added). Indeed, plaintiffs brought these lawsuits based on the premise that 32 they, and other businesses analyzed at trial, are 60/40 businesses not properly regulated as adult. In any event, the City did prove that the clubs it analyzed at trial had a 60/40 configuration. The City entered the floor plans of eight of the ten clubs it analyzed at trial into evidence, and adduced testimony about the layout of the remaining clubs.6 Plaintiffs do not supply any record citation for their baseless and qualified assertion that several of the clubs the City analyzed at trial “appeared to be merely 100% businesses” (TC Br. at 31 [emphasis added]). Finally, the City was also not required to present evidence about the interiors of the 100-percent businesses DCP studied in the early 1990s in order to satisfy its burden (TC Br. at 29-32). To the contrary, this Court expressly directed the City to adduce 6 See TR188-95, 1584 (Bare Elegance 60/40 compliant); 199-204, 1586 (Lace I 60/40 compliant); 205-09, 1594 (Private Eyes 60/40 compliant); 212-16, 1595 (Lace II 60/40 compliant); 217-20, 1598-99 (Pussycat Lounge 60/40 compliant); 220-25, 1613 (Ten’s cabaret 60/40 compliant); 224-29, 1630 (HQ 60/40 compliant); 234 (Wiggles 60/40 compliant); 643-48, 1632 (layout of Vixen); 610-14 (layout of VIP). 33 evidence relating to the current character of self-identified 60/40 businesses. People Theatres, 6 N.Y.3d at 84. In any event, the City did produce evidence about the character of 100-percent establishments. As the 1994 DCP study explained, in the early 1990s, the City’s topless bars were already trying to cultivate an upscale image by providing additional amenities like televisions, pool tables, and air hockey (TR1735). Moreover, the City’s evidence at trial showed that at least four of the clubs were using a similar amount of space for topless dancing at the time of trial as they had before the 60/40 test was implemented (TR292-98 [Lace I], 307-10 [Lace II], 392-96 [Pussycat Club], 646-49 [Vixen]). This and other evidence amply supported the City Council’s reasonable judgment that 60/40 bars and clubs maintained a predominant sexual focus despite providing certain amenities in addition to topless dancing. See Entm’t Prods., Inc. v. Shelby Cnty., 588 F.3d 372, 382 (6th Cir. 2009) (county reasonably concluded that business featuring both food service and topless dancing would produce same negative secondary effects as 100-percent businesses). 34 Next, the plaintiff in People Theatres, like the plaintiffs in Ten’s Cabaret, does not deny that the extensive evidence the City presented at trial about the predominantly sexual focus of 60/40 businesses supports the City’s legislative judgments. Instead, plaintiff disputes the relevance of only one aspect of the City’s evidence-that most 60/40 book and video stores featured “non- adult” sections with a large selection of merchandise intended for use in, and frequently depicting, sexual activities-and devotes the majority of its brief to detailing evidence it believes could support a reasonable determination that 60/40 book and video stores are not predominantly sexually focused (PT Br. at 37-51). But the first argument again mischaracterizes the City’s position. The City does not contend that a book and video store is properly considered adult only because it sells sex toys, dildos, bondage gear, lingerie, oils, lotions, and condoms (cf. App. Br. at 12-13 [enumerating criteria that support classification of book and video store as adult]).7 Instead, as the City fully explained in its 7 Nonetheless, many other municipalities throughout the country have made that determination and regulated establishments selling sex toys and dildos (cont’d on next page) 35 main brief (App. Br. at 64), the use of a purportedly “non-adult section” to display merchandise of an adult nature instead of non- adult books and videos provides additional support for a judgment that the store maintains a predominantly sexual focus and is not a general interest book and video store. Indeed, the City Council made precisely that legislative judgment here. Under the Amendments, merchandise with sexually explicit packaging qualifies as “adult” stock for purposes of the 60/40 test. See Zoning Resolution § 12-10(2) (definition of “printed or visual matter”). But even without sexually explicit packaging, merchandise like dildos and sex toys does not count toward a book and video store’s “non-adult” stock-in-trade for purposes of the 60/40 test under the Amendments. See id. § 12- 10(1)(a) (definition of “adult book store”). Plaintiff does not even attempt to prove that these judgments, which effectuate the City as adult establishments. See, e.g., Phoenix Mun. Code, ch. 2 § 202 (definition of “adult novelty store”); Rochester Mun. Code, ch. 120, art. XXVI, § 120-208 (definition of “adult retail store”); San Antonio Mun. Code, art. IX, § 21-200 (definition of “adult bookstore”). 36 Council’s original intent of regulating establishments with a predominantly sexual focus, are unreasonable. Moreover, plaintiff’s extensive recitation of its own evidence from trial is unavailing. As this Court expressly held, the relevant inquiry is whether the City’s evidence fairly supports its legislative judgments. Although plaintiff’s evidence may also be relevant to the question of predominant sexual focus, both this Court’s remittitur order and Alameda Books instruct that plaintiff must do more than show that there is evidence that might support a conclusion contrary to that reached by the City Council. Rather, plaintiff had to show that the City could not reasonably rely on its own evidence. Plaintiff wholly failed to do so. Plaintiffs’ insistence that its evidence does dispute the City’s (PT Br. at 57-60) again conflates the fact issues before Supreme Court with the legal issue of predominant sexual focus. When these inquiries are properly distinguished, it becomes clear that plaintiff has not impugned the credibility of the City’s evidence. For example, plaintiff’s evidence that, during a single round of visits (including one at 9 a.m. [PA470]), a City inspector did not 37 see anyone using the peep booths at Blue Door Video or at Gotham City (PT Br. at 48) does not “dispute” the City’s evidence that all but one of the 60/40 book and video stores it analyzed at trial had between 7 and 60 booths showing adult films, and that at least 9 of the 14 promoted the peep booths through interior and exterior signage (App. Br. at 20). Because even plaintiffs do not deny that the City produced evidence supporting its legislative judgments, and because the plaintiffs failed to show that evidence to be irrelevant or incredible, the City is entitled to judgment as a matter of law based on the record evidence as well as the Appellate Division’s own analysis of that evidence. POINT III THIS COURT SHOULD DECLINE TO REVISIT MERITLESS ARGUMENTS IT REJECTED OVER A DECADE AGO Failing to mount a persuasive defense of the lower courts’ decisions, the plaintiffs in Ten’s Cabaret attempt to resurrect an argument this Court rejected over a decade ago in 2005. They contend that the Court should adopt a “proportionality test” 38 purportedly based on Justice Kennedy’s concurring opinion in Alameda Books, and require the City to prove that its adult use zoning ordinance would decrease secondary effects more than it would reduce speech in order to satisfy the requirements of the New York Constitution (TC Br. at 35-48). But this meritless argument fails for multiple, independent reasons. A. The Law of the Case Precludes Reconsideration of Plaintiffs’ Contentions. Plaintiffs correctly recognize that under stare decisis principles, this Court should not depart from its established adult use zoning jurisprudence, nor should it reconsider its 2005 decision (TC Br. at 42-43). However, they fail to address the law- of-the-case doctrine, which directly precludes this Court from revisiting its 2005 order. Under the law-of-the-case doctrine, which is “designed to eliminate the inefficiency and disorder that would follow if courts of coordinate jurisdiction were free to overrule one another in an ongoing case,” this Court is bound by the Court’s prior decisions in these proceedings. People v. Evans, 94 N.Y.2d 499, 501-05 (2000); 39 see also Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Publ’g Co., 36 N.Y.2d 803, 804-05 (1975) (Court of Appeals bound by its own prior decisions in a proceeding). Plaintiffs concede that they fully briefed their purported “proportionality test” when these appeals were before this Court in 2005 (TC Br. at 35). But although this Court recognized that Justice Kennedy’s opinion was controlling, the Court nonetheless rejected plaintiffs’ broad interpretation of that opinion as meritless. See People Theatres, 6 N.Y.3d at 84. That determination is the law of the case, and plaintiffs are precluded from challenging it here. Although courts have departed from the law of the case in “extraordinary circumstances,” e.g., Nahl v. Nahl, 177 A.D.2d 777 (3d Dep’t 1991), the circumstances of these proceedings militate in favor of applying the doctrine, not against it. For the last 11 years, the parties have devoted considerable effort and expense to litigating the narrow issue outlined by this Court in 2005. The records and briefs filed during this time focus solely on that issue. Revisiting an issue last litigated over a decade ago on this record is not only inefficient, but also ill-advised. 40 Revisiting this issue is also unwarranted because it would substantially prejudice the City. In reliance on this Court’s 2005 decision holding that it was not required to relitigate the issue of negative secondary effects, the City did not adduce additional evidence about secondary effects at trial. Plaintiffs’ argument, however, relies on improperly admitted secondary effects evidence (TC Br. at 41). It would be manifestly unjust to reconsider this issue now based on evidence this Court expressly held the City was not required to produce. See Prisco v. A&D Carting Corp., 168 F.3d 593, 607 (2d Cir. 1999) (court should not depart from law of the case when it would substantially prejudice a party). In any event, plaintiffs have failed to supply any colorable basis to revisit the issue. Although they devote substantial space to detailing the Supreme Court’s recent decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (TC Br. at 35-36, 44-48), even they concede that the U.S. Supreme Court would not apply Reed, which applied strict scrutiny to content-based sign regulations, in this context (TC Br. at 47-48). Indeed, the courts that have addressed the issue have rejected the proposition that Reed 41 modified the Supreme Court’s adult use zoning jurisprudence, which this Court relied on in its 2005 decision. Free Speech Coal., Inc. v. AG United States, 825 F.3d 149, 161 n.8 (3d Cir. 2016); BBL, Inc. v. City of Angola, 809 F.3d 317, 326 n.1 (7th Cir. 2015). As these courts reasoned, courts follow the precedent that directly controls a case, see Agostini v. Felton, 521 U.S. 203, 237 (1997), and Reed is inapposite. The regulations at issue in Reed were subject to strict scrutiny because they subject different types of signs-political, directional, and ideological-to different regulations. See Reed, 135 S. Ct. at 2227. Adult use zoning ordinances, by contrast, have long been subject to intermediate scrutiny because they do not target the message conveyed by adult uses, or even the immediate effect of adult uses, but rather the negative secondary effects of those uses. See Town of Islip v. Caviglia, 73 N.Y.2d 544, 557-58 (1989); City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48 (1986). The Reed Court, which did not even mention adult use zoning, did not purport to reject this reasoning. Cf. McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014) (citing Renton’s analysis with approval). 42 Reed is also inapposite because the balancing of interests in the adult use zoning context is fundamentally different from the municipal sign context. Municipal interests in regulating how long temporary directional signs appear on its streets are simply not analogous to municipal interests in adopting reasonable adult use zoning ordinances. See Free Speech Coal., 825 F.3d at 161-63. Thus, Reed does not provide any basis to reconsider this Court’s 2005 decision, let alone constitute the type of exceptional circumstance justifying a departure from a decision that has been the law of the case for the last 11 years, and from three decades of controlling precedent addressing adult use zoning. See Town of Islip v. Caviglia, 73 N.Y.2d 544 (1989). B. As This Court Has Already Concluded, These Contentions in Any Event Lack Merit. Even if reconsideration of this issue were appropriate (and it is not), plaintiffs’ arguments lack merit. Plaintiffs’ purported proportionality test-that the City should be required to prove that its regulations would decrease secondary effects more than they would decrease speech-is based on a flawed and overbroad 43 reading of Justice Kennedy’s concurrence in Alameda Books. It is also a substantial departure from this Court’s zoning jurisprudence that should not be adopted by this Court. As one federal court has noted, the differences between Justice Kennedy’s opinion and the plurality opinion are “quite subtle.” Ben’s Bar, Inc. v. Vill. of Somerset, 316 F.3d 702, 721 (7th Cir. 2003).8 Indeed, Justice Kennedy agreed with most of the plurality’s holdings, including that: (1) Renton’s central holding was sound, (2) courts should apply intermediate scrutiny in this context, (3) the legislative judgments underlying adult use zoning ordinances are entitled to deference, and (4) a municipality is required to produce only “very little evidence” to support its judgments. See Alameda Books, 535 U.S. at 448-49, 451 (Kennedy, J., concurring in the judgment). As Justice Kennedy explained, he wrote primarily to clarify that, in adopting an adult use zoning ordinance, a municipality 8 See also, e.g., Entm’t Prods., Inc. v. Shelby Cnty., 721 F.3d 729, 742 (6th Cir. 2013) (rejecting broad interpretation of Kennedy’s concurrence); Ctr. for Fair Pub. Policy v. Maricopa Cnty., 336 F.3d 1153, 1162-64 (9th Cir. 2003) (reasoning that Kennedy’s concurrence was not meant to cause a “sea change” in adult use zoning law). 44 could not propose to decrease negative secondary effects by decreasing speech. See id. at 450. But that proviso is hardly the equivalent of a requirement that a municipality prove that its ordinance would decrease secondary effects more than it would decrease speech, as plaintiffs contend (TC Br. at 40-41). See Ben’s Bar, 316 F.3d at 721. Rather, the inquiry “dovetails” with the established elements of intermediate scrutiny, including the municipality’s purposes in enacting the ordinance, and the availability of alternate avenues of communication. World Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186, 1195 (9th Cir. 2004); see also Tollis Inc. v. Cnty. of San Diego, 505 F.3d 935, 939-41 (9th Cir. 2007). Plaintiffs’ contrary interpretation is inconsistent with the opinion itself. Justice Kennedy expressly agreed with the plurality about the nature of the evidentiary burden a municipality must satisfy in order to pass constitutional muster. See Alameda Books, 535 U.S. at 449 (Kennedy, J., concurring in the judgment). But far from requiring a municipality to prove that its regulations will successfully reduce secondary effects, the plurality held that a 45 municipality may rely on any evidence that is reasonably believed to be relevant, and may draw reasonable inferences from the evidence. See id. (plurality opinion).9 Moreover, in Alameda Books, Justice Kennedy did not require the City of Los Angeles to come forward with any other evidence in order to satisfy the further inquiry he had outlined. Instead, based on the evidence already before the Court, he held that the City’s locational restrictions, which would require the plaintiff adult business to move locations but not necessarily shut down, and which were based on a reasonable inference that two adult businesses in the same location would cause more secondary effects than one, satisfied this inquiry. See Alameda Books, 535 U.S. at 452-53 (Kennedy, J., concurring in the judgment). Applying that same reasoning here, the City’s regulations satisfy the relevant inquiry. Far from banning adult 9 Commentators in this area have opined that the Seventh Circuit decisions plaintiffs rely upon in making their argument-New Albany DVD, LLC v. City of New Albany, 581 F.3d 556 (7th Cir. 2009), and Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460 (7th Cir. 2009)-are the exception, and that they seemingly require a municipality to satisfy a burden of proof inconsistent with Alameda Books itself. See Gerard & Bergthold, Local Regulation of Adult Business § 4:24, at p. 335-40 (2017 ed.). 46 establishments entirely, the City’s regulations restrict adult businesses to certain locations. Moreover, like the City of Los Angeles’ regulations, the City’s regulations employ locational restrictions based on reasonable inferences that multiple adult businesses in the same location increase secondary effects, and that adult businesses in residential areas create secondary effects that they would not create in nonresidential areas. This Court held as much 20 years ago when it approved the City’s original regulations. See Stringfellow’s, 91 N.Y.2d at 399. Thus, as this Court concluded in 2005, plaintiffs’ contentions are meritless. POINT IV THERE IS NO VIABLE AS-APPLIED CHALLENGE BEFORE THIS COURT IN TEN’S CABARET In its main brief, the City demonstrated that the purported as-applied challenges in Ten’s Cabaret are unpreserved, not legally cognizable, and meritless (App. Br. at 73-80). But plaintiffs’ brief gives inadequate and unpersuasive responses to the first and second point, and makes no attempt to respond to the third. 47 First, with respect to waiver, plaintiffs do not dispute that they first raised their purported as-applied challenges at trial in 2009-eight years after they filed their complaints, and four years after this Court remanded for determination of a single, narrow issue. See People Theatres, 6 N.Y.3d at 83-84. Although plaintiffs assert that they nonetheless preserved their challenges in a 2011 memorandum of law (TC Br. at 49), that contention misses the point. Plaintiffs waived the challenges because they did not raise them until trial in 2009, after their first appeal to this Court (App. Br. at 75). Raising them in 2011 does not change that fact. Second, plaintiffs make no attempt to respond to the City’s substantive contentions why their as-applied challenges are not cognizable and are irreconcilable with controlling precedent. As the City has already explained, under established principles, in order to support its adult use zoning ordinance, the City need only come forward with evidence that is “reasonably believed to be relevant,” and may draw reasonable inferences based on that evidence. Recognizing plaintiffs’ as-applied challenges-which require the City to produce evidence connecting individual 60/40 48 establishments to secondary effects-would contravene these established principles, and overwhelm the rule. In their briefs, plaintiffs (unsuccessfully) try to side-step this issue. They claim that these principles do not apply here because they are established in cases addressing facial, not as-applied, challenges to adult use zoning ordinances (TC Br. at 50-51). But that claim is both circular and specious. The relevant principles are not merely foundational to facial challenges to adult use zoning regulations. They are foundational to adult use zoning jurisprudence. The City’s fundamental point, which plaintiffs do not and cannot overcome, is that plaintiffs’ as-applied challenges are not cognizable under the analytical framework that controls this area of the law. Once the Amendments have survived the means-end analysis of intermediate scrutiny, plaintiffs may not evade regulation by claiming that their individual establishments do not cause negative secondary effects. See, e.g., Stringfellow’s of N.Y. v. City of N.Y., 91 N.Y.2d 382, 401 (1998) (City not required to connect individual businesses to negative secondary effects). The label applied to the claim is irrelevant. 49 Indeed, it is for these reasons that courts generally have not recognized as-applied challenges in this context. See, e.g., Independence News, Inc. v. City of Charlotte, 568 F.3d 148, 155 n.3 (4th Cir. 2009) (collecting cases and holding that “the[] standards for reviewing challenges to” adult use zoning ordinances “apply regardless of whether that challenge is styled as facial or as- applied”); 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 businesses); ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413, 1418 (8th Cir. 1994) (municipality not required to connect 60/40 bookstore lacking peep booths to secondary effects).10 Gammoh v. City of Anaheim, 73 Cal.App.4th 186 (Cal. Ct. App. 1999)-the sole authority plaintiffs cite on this point-is 10 Plaintiffs’ reliance on a pre-/post-enactment evidentiary distinction to distinguish Independence News, Inc. v. City of Charlotte, 568 F.3d 148 (4th Cir. 2009), in misguided (TC Br. at 51-53). Far from holding that a court could not consider post-enactment evidence adduced by a municipality in support of its zoning regulations, Independence News rejected an attempt by the plaintiffs in that case to circumvent established law in this area by drawing a distinction in reliance on post-enactment data. See id. at 155-56. Moreover, plaintiffs wholly ignore the court’s thorough analysis showing why as-applied challenges are untenable in this area. See id. at 153-55 & n.3. 50 inapposite. Gammoh did not recognize an as-applied challenge based on a business’ own studies purporting to show that the character of the business itself would not cause secondary effects. Instead, Gammoh recognized an as-applied challenge based on a business’ particular location-next to “a practically undevelopable parcel of vacant land in an industrial zone . . . that one would think was otherwise perfect [under the City’s regulations].” Id. at 191. Moreover, whether or not the court’s reasoning in Gammoh is correct, a review of that reasoning reveals that the court was reacting to a unique and extreme set of facts, which are far afield from anything at issue here. Indeed, Gammoh expressly limited its holding to the facts before it. See id. at 197 n.9 (“Of course, our opinion on the ‘as applied issue’ should not be read more broadly than the narrow facts of this particular case.”). Plaintiffs’ challenges, however, strike at the heart of the principles controlling these proceedings: that municipalities may rely on any evidence reasonably believed to be relevant to the problems they seek to address in adopting adult use zoning ordinances and “must have latitude to experiment” with solutions 51 designed to address the negative secondary effects of adult business. Alameda Books, 535 U.S. at 451-52 (Kennedy, J., concurring in the judgment); see also id. at 439 (plurality opinion). For that reason, and for all of the reasons in the City’s main brief, this Court should reject plaintiffs’ challenges as not legally cognizable. It should also reaffirm the importance of applying deferential principles to reasonable adult use zoning ordinances, which play a crucial role in protecting the quality of urban life. 52 CONCLUSION The order below should be reversed, the actions dismissed, and the 2001 Amendments found constitutional. Dated: New York, NY December 16, 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: _______/s/___________________ INGRID R. GUSTAFSON Assistant Corporation Counsel 100 Church Street New York, NY 10007 212-356-0853 igustafs@law.nyc.gov 53 CERTIFICATE OF COMPLIANCE I hereby certify that this brief was prepared using Microsoft Word 2010, and according to that software, it contains 9,856 words, not including the table of contents, the table of cases and authorities, this certificate, and the cover. /s/ __ INGRID R. GUSTAFSON