To be Argued by:
ERICA T. DUBNO, ESQ.
(Time Requested: 15 Minutes)
APL-2015-00273
New York County Clerk’s Index Nos. 121080/02 and 121197/02
Court of Appeals
of the
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.
–––––––––––––––––––––––––––––––––––
(For Continuation of Caption See Reverse Side of Cover)
BRIEF FOR PLAINTIFF-RESPONDENT JGJ MERCHANDISE
CORP. d/b/a VISHANS VIDEO a/k/a MIXED EMOTIONS
ERICA T. DUBNO, ESQ.
HERALD PRICE FAHRINGER PLLC
d/b/a FAHRINGER & DUBNO
Attorneys for Plaintiff-Respondent JGJ
Merchandise Corp. d/b/a Vishans Video
a/k/a Mixed Emotions
767 Third Avenue, Suite 3600
New York, New York 10017
Tel.: (212) 319-5351
Fax: (212) 319-6657
Dated: November 1, 2016
Index No.
121080/02
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.
Index No.
121197/02
Disclosure Statement
The caption sets forth the names of all parties. The
corporate Plaintiffs have no parent companies, subsidiaries
and/or affiliates. 22 NYCRR § 500.1(f).
Table of Contents
Disclosure Statement....................................................................................................... i
Table of Contents ............................................................................................................ ii
Table of Authorities ...................................................................................................... vi
Relevant Statutes ............................................................................................................. 1
Preliminary Statement ................................................................................................... 2
Counter Question Presented ......................................................................................... 4
Counter Statement of the Facts and Procedural History ........................................ 5
The Constitutionality of the 1995 Resolution was
Upheld Because It was Based on an Extensive Study
and Investigation of Establishments that Offered
Exclusively Adult Entertainment to the Public ............................................. 6
Bookstores Were Transformed into New
Establishments that Only Offered a Limited
Amount of Adult Entertainment ...................................................................... 8
The 1995 Resolution was Effective in Reducing the
Types of Uses Alleged to Cause Adverse Secondary
Effects .................................................................................................................... 9
The Les Hommes Case ..................................................................................... 11
The City’s Zoning Resolution of 2001 ........................................................... 12
The Challenge to the 2001 Amendments ...................................................... 14
The Supreme Court Found the Law to be
Unconstitutional ................................................................................................ 16
The Court of Appeals Remanded for a Trial and
Emphasized that if the City Failed to Meet its
Burden, the “Bookstores Will be Entitled to
Judgment and a Declaration that the 2001
Amendments are Unconstitutional” ............................................................. 17
The Remand and Trial ..................................................................................... 19
The Appellate Division Remanded the Case to the
Trial Court for Further Findings and Consideration
of Evidence that There has Been a Significant
Change in the Character of 60/40 Businesses .............................................. 22
The Trial Court Found “Significant and Distinct
Differences between the 1994 Adult Entities and
60/40 Entities” .................................................................................................... 23
The Appellate Division Confirmed that the City
Failed to Meet its Burden and that the 2001
Amendments are Unconstitutional ............................................................... 25
POINT I
THE COURT OF APPEALS DOES NOT HAVE SUBJECT
MATTER JURISDICTION OVER THIS APPEAL ................................................. 28
The Two-Justice Dissent Was Not on a Question of
Law ....................................................................................................................... 33
Justice York’s Dicta, Questioning How an 18-Year-
Old Study of Exclusively Adult Businesses Could
be Applied to Padlock Current 60/40 Businesses,
Played No Part in his Decision ....................................................................... 36
iii
POINT II
THE APPELLATE DIVISION AND TRIAL COURT
PROPERLY GRANTED JUDGMENT TO
CONSTITUTIONALLY PROTECTED BUSINESSES
SINCE 60/40 BOOKSTORES “NO LONGER RESEMBLE”
EXCLUSIVELY ADULT ESTABLISHMENTS AND DO
NOT HAVE A PREDOMINANT, ONGOING FOCUS ON
ADULT MATERIALS .................................................................................................. 37
This Court’s Remittitur Did Not Provide Guidelines
for the Lower Courts to Use to Determine Whether
60/40 Businesses Display a Predominant, Ongoing
Focus on Sexually Explicit Materials or Activities ..................................... 39
Non-Adult Material is Readily Accessible to
Customers in the Front of 60/40 Bookstores, Which
is the Preeminent and Predominant Selling Space .................................... 41
Signage Has Been Modified to be Less Graphic and
to Eliminate an Emphasis on Adult Materials ............................................ 44
The City Did Not Meet its Burden Merely by
Presenting Evidence that Bookstores had Private
Viewing Booths ................................................................................................. 46
There Has Been a Considerable Change in the
Character of the Bookstores, Which Now Appeal to
a Much Broader Audience ............................................................................... 49
iv
POINT III
THE SUPREME COURT AND APPELLATE DIVISION
ASSESSED THE EVIDENCE OBJECTIVELY AND DID
NOT SUBSTITUTE THEIR JUDGMENT FOR THAT OF
THE LEGISLATURE .................................................................................................... 52
The Trial Court and Appellate Division Reviewed
the Disputed Evidence, Which was Presented at an
Evidentiary Hearing, and Found that the City Failed
to Meet its Burden ............................................................................................. 57
POINT IV
THE TRIAL COURT AND APPELLATE DIVISION
APPLIED THE PROPER LEGAL STANDARD ...................................................... 61
Conclusion ...................................................................................................................... 64
v
Table of Authorities
Arcara v. Cloud Books, Inc.,
68 N.Y.2d 553 (1986)..................................................................................................62
Baba-Ali v. State,
19 N.Y.3d 627 (2012)..................................................................................................38
Barbulean v. City of Newburgh,
168 Misc. 2d 728 (Sup. Ct. Orange Co. 1995) ..........................................48
Bingham v. NYC Transit Auth.,
99 N.Y.2d 355 (2003)..................................................................................................57
City of New York v. Desire Video,
267 A.D.2d 164 (1st Dept. 1999) .......................................................................10
City of New York v. Les Hommes,
94 N.Y.2d 267 (1999)..................................................................................................12
City of New York v. S&H Book Shop, Inc.,
41 A.D.2d 637 (1st Dept. 1973)....................................................................48, 49
City of New York v. Show World, Inc.,
178 Misc. 2d 812 (Sup. Ct. N.Y. Co. 1998) ...............................................10
Claridge Gardens, Inc. v. Menotti,
160 A.D.2d 544 (1st Dept. 1990) .......................................................................37
For the People Theatres of N.Y., Inc. v. City of New York,
1 Misc. 3d 394 (Sup. Ct. N.Y. Co. 2003) ..............................................16, 34
For the People Theatres of N.Y., Inc. v. City of New York,
1 N.Y.3d 590 (2004) ....................................................................................................28
For the People Theatres of N.Y., Inc. v. City of New York,
20 A.D.3d 1 (1st Dept. 2005) ..............................................................................16
For the People Theatres of N.Y., Inc. v. City of New York,
38 Misc. 3d 663 (Sup. Ct. N.Y. Co. 2012)............................................24, 30
For the People Theatres of N.Y., Inc. v. City of New York,
6 N.Y.3d 63 (2005) ....................................................................................17, 19, 28, 29
For the People Theatres of N.Y., Inc. v. City of New York,
84 A.D.3d 48 (1st Dept. 2011) .................................................................... passim
vi
Gravius v. County of Erie,
17 N.Y.3d 896 (2011)..................................................................................................34
Hilltop Village Co-op. Section No. 3, Inc. v. Schleifman,
118 A.D.2d 685 (2d Dept. 1986)..........................................................................50
In re Metro. Transit Auth.,
86 A.D.3d 314 (1st Dept. 2011)..........................................................................37
Lou Atkin Castings, Inc. v. M. Fabrikant & Sons, Inc.,
216 A.D.2d 111 (1st Dept. 1995) .......................................................................38
Marcus CC. v. Erica BB.,
22 N.Y.3d 911 (2013)..................................................................................................34
Matter of Amoretta V.,
89 N.Y.2d 935 (1997)..................................................................................................34
Matter of Anonymous,
25 N.Y.3d 1083 (2015) ...............................................................................................34
People v. Gruttola,
43 N.Y.2d 116 (1977)..................................................................................................31
People v. Mitchell,
74 Misc. 2d 1053 (Crim. Ct. N.Y. Co. 1973) .............................................48
Reis v. Volvo Cars of North America,
21 N.Y.3d 1051 (2013) ...............................................................................................34
Richstone v. Q–Med, Inc.,
186 A.D.2d 354 (1st Dept. 1992) .......................................................................37
Rohrbach v. Germania Fire Ins. Co.,
62 N.Y. 47 (1875) .........................................................................................................36
Saperston v. Holdaway,
20 N.Y.3d 1052 (2013) ...............................................................................................34
Stringfellow’s of New York, Ltd. v. City of New York,
171 Misc. 2d 376 (Sup. Ct. N.Y. Co. 1996), aff’d, 241
A.D.2d 360 (1st Dept. 1997), aff’d, 91 N.Y.2d 382 (1998) .............6
Ten’s Cabaret, Inc. v. City of New York,
1 Misc. 3d 399 (Sup. Ct. N.Y. Co. 2003) ....................................................16
Time Square Books, Inc. v. City of Rochester,
223 A.D.2d 270 (4th Dept. 1996) .......................................................................48
vii
Relevant Statutes
The First Amendment to the United States Constitution
provides in relevant part that “Congress shall make no law
... abridging the freedom of speech.”1
Article I, § 8 of the New York State Constitution,
known as the State’s Free Speech Clause, provides in part:
“Every citizen may freely speak, write and publish his or
her sentiments on all subjects ... and no law shall be
passed to restrain or abridge the liberty of speech.”
1 Whenever reference is made to the United States
Constitution, it is also meant to include the companion
provision of the New York State Constitution, which is
construed to be more protective of individual rights.
Preliminary Statement
In 1995, the City of New York enacted a zoning
resolution to regulate adult establishments. The resolution
was only enacted after careful study of whether the types
of businesses that existed then caused adverse secondary
effects. The City indicated that bookstores that limit
their adult component to less than 40 percent of their
floor space and stock comply with the Resolution and are
not the types of establishments alleged to cause negative
effects (the “60/40 Rule”).
In 2001, without undertaking another study, the City
enacted a new resolution to radically restrict stores that
comply with the 60/40 Rule. In 2005, this Court found that
the City did not have to study 60/40 businesses provided it
could prove that they have the same “essential nature” as
the adult establishments studied back in 1994. On
remittitur, this Court directed the trial court to resolve
the factual issue of whether “60/40 businesses are so
transformed in character that they no longer resemble the
kinds of adult uses found ... to create negative secondary
effects.”
2
The trial judge, who heard testimony of witnesses,
conducted personal inspections of the Plaintiffs’
establishments and carefully considered evidence at a
hearing, found that bookstores that reduced their adult
component, removed explicit graphic signage, attract new
customers and now sell mainstream non-adult material,
including general interest DVDs, in the more prominent
front retail space, do not resemble the types of
exclusively adult establishments found -- back in 1994 --
to cause adverse secondary effects.
The Appellate Division, which has fact finding power,
agreed that the City failed to meet its burden on the very
narrow factual issue presented by this Court on remand.
3
Counter Question Presented
The following counter question is presented:
Should this Court affirm the findings
of the Appellate Division -- which
carefully followed this Court’s
remittitur -- and the findings of the
trial court -- which (1) heard the
testimony of witnesses, (2) conducted
personal inspections of the Plaintiffs’
establishments, and (3) carefully
considered evidence that the bookstores
that have radically reduced their adult
component, removed explicit graphic
signage and now sell mainstream non-
adult material, including general
interest DVDs, in the more prominent
front retail spaces -- that 60/40
bookstores do not resemble the types of
exclusively adult establishments found
to cause adverse secondary effects and
do not have a predominant, ongoing
focus on sexually explicit materials?
4
Counter Statement of the Facts
and Procedural History
To describe the history of this case, which has
stretched over 15 long years and has undergone three
separate appeals to the Appellate Division, as well as two
voyages to this Court, is daunting. Nevertheless, it is
imperative to briefly review that history to establish that
the 2001 Amendments to New York City’s Adult Zoning
Resolution are unnecessary and unconstitutional.
The well-rutted path that returns us to this Court
began more than 20 years ago, when the City of New York
first revised its zoning laws to regulate adult
establishments. Specifically, in 1994, the City
investigated whether or not establishments that offered
adult material to the public caused any adverse secondary
effects (PA.47).2
2 Numbers preceded by “PA.” refer to pages of the City’s
Appendix. Numbers preceded by “RA.” refer to the
Respondent’s Appendix from the Appellate Division, which is
reproduced for this Court.
5
As a consequence of that investigation, on October 25,
1995, the City enacted a text amendment to its zoning law
which, for the first time, imposed strict limitations on
the operation of adult establishments, including topless
bars, theaters that exhibited adult films and bookstores
that sold adult materials (PA.47). Under the 1995
Resolution an “Adult Bookstore” was defined, in chief, as a
store where a “substantial portion” of its stock-in-trade
and floor space is devoted to adult material (PA.48-49).
The Constitutionality of the 1995 Resolution
was Upheld Because It was Based on an
Extensive Study and Investigation of
Establishments that Offered Exclusively Adult
Entertainment to the Public
In 1996, owners and operators of adult establishments
throughout the City challenged the constitutionality of the
1995 Resolution.3 The Supreme Court upheld the law. The
Appellate Division and this Court affirmed.4
3 See Amsterdam Video, Inc. v. City of New York, Index No.
103568/96 (Sup. Ct. N.Y. Co.). An adult-oriented cabaret
also commenced a separate challenge. See Stringfellow’s of
New York, Ltd. v. City of New York, Index No. 113049/96
(Sup. Ct. N.Y. Co.).
4 See Stringfellow’s of New York, Ltd. v. City of New York,
171 Misc. 2d 376 (Sup. Ct. N.Y. Co. 1996), aff’d, 241
A.D.2d 360 (1st Dept. 1997), aff’d, 91 N.Y.2d 382 (1998).
6
After exhausting their state remedies, the businesses
entered federal court through the proscenium of the First
Amendment to resolve the ambiguity of the statute’s
critical term “substantial portion,” which was
determinative of whether a bookstore is an adult
establishment.5
To meet this vagueness challenge, the City officially
adopted a formula whereby a bookstore would only be
considered an “Adult Bookstore” if 40 percent or more of
its merchandise and floor space was devoted to adult
materials. The City incorporated this narrowed construction
into the law (PA.167). And so, the famed “60/40 Rule” was
born. The City confirmed that the term “adult
establishment,” used in the 1995 Resolution, was “carefully
defined” to ensure that the regulations only covered that
class of establishments which were found to cause negative
effects (PA.54, 166) (emphasis supplied).
5 See Amsterdam Video, Inc. v. City of New York, Docket No.
96 Civ. 2204 (MGC) (S.D.N.Y.).
7
Bookstores Were Transformed into New
Establishments that Only Offered a Limited
Amount of Adult Entertainment
In sustaining the 1995 Resolution, this Court
acknowledged that an important component of the Resolution
was the means by which establishments could continue to
operate by reducing their adult component. See
Stringfellow’s, 91 N.Y.2d at 393. Indeed, whenever courts
were confronted with the Resolution’s chilling impact on
the public’s right to access this constitutionally
protected information, the City urged that the businesses
could remain where they were by simply complying with the
60/40 Rule. For instance, the City proclaimed in this Court
that
such establishments may continue to
operate at their current locations
as a non-adult establishment. They
will not run afoul of the
Amendments so long as they do not
regularly feature or devote a
substantial portion of their stock-
in-trade to adult entertainment or
material, as defined in those
regulations.6
6 See Assistant Corporation Counsel Natrella Aff., dated
July 16, 1997, in Support of the City’s Motion to Vacate
the Stay in the Court of Appeals, ¶ 31, Amsterdam Video,
Inc. v. City of New York, Index No. 103568/96.
8
In the wake of the 1995 Resolution, many
establishments closed (PA.909) (“[s]ince the enactment of
the 1995 amendments, adult establishments have dramatically
declined in numbers”). However, a significant number of
businesses complied with the City’s new 60/40 Rule (PA.166-
67). Bookstores that previously operated as exclusively
adult establishments chose, at considerable expense, to
reconfigure their floor space and began to offer a variety
of non-adult information, which had a much wider public
appeal (PA.31, 58, 144, 596). Through this radical
transformation, an entirely new form of business emerged.
The 1995 Resolution was Effective in Reducing
the Types of Uses Alleged to Cause Adverse
Secondary Effects
In July 1998, after all challenges to the Resolution
had been rejected, the City brought civil proceedings to
padlock establishments that it believed did not comply with
the 60/40 standard (PA.31). Judges in all five counties
were called upon to decide whether these new entities,
which were marketing drastically different brands of non-
adult entertainment, were in compliance with the 60/40 Rule
and, therefore, were not adult establishments.
9
The critical issue in enforcement proceedings centered
on the 60/40 Rule’s comparative analysis concerning the
amount of floor space and stock each store dedicated to
adult and non-adult materials. Squads of building
inspectors -– armed with steel measuring tapes -– fanned
out across all the boroughs, measuring bookstores to assess
their compliance with the 60/40 formula (PA.217, 518). The
City’s inspectors also counted the adult and non-adult
material to determine whether a bookstore complied with the
arithmetic of the stock component of the 60/40 Rule
(PA.519).
Courts found that bookstores, which reconfigured their
entire operation to comply with the 60/40 equation, were
not “adult establishments.”7 However, bookstores that
violated the 60/40 Rule were closed under the auspices of
the 1995 Resolution.8 The casualty list of adult businesses
7 See, e.g., City of New York v. Show World, Inc., 178
Misc. 2d 812 (Sup. Ct. N.Y. Co. 1998) (Crane, J.); City of
New York v. Playpen, Index No. 404170/99 (Sup. Ct. N.Y.
Co.) (Weissberg, J.); City of New York v. 691 Video Center
Corp., Index No. 400888/00 (Sup. Ct. N.Y. Co.) (Kapnick,
J.); City of New York v. Love Shack, Index No. 17320/99
(Sup. Ct. Queens Co.) (Lonschein, J.).
8 See, e.g., City of New York v. Desire Video, 267 A.D.2d
164 (1st Dept. 1999).
10
that fell in these fiercely fought enforcement campaigns
was substantial. The City Planning Commission reported a 23
percent reduction among adult establishments between 1993
and 2000. Thus, up to 41 businesses perished (PA.31). These
startling statistics confirm the effectiveness of the 1995
Resolution.
The Les Hommes Case
In the summer of 1998 the City claimed that a small
bookstore on the Upper West Side of Manhattan called Les
Hommes was not in compliance with the 60/40 Rule. The City
urged that the establishment’s non-adult inventory was a
“sham” despite the fact that Les Hommes had eliminated
virtually all of its adult videotapes, except for a modest
24 percent of its stock, which was far below the 40 percent
required by the City (PA.31).
The case made its way to this Court. And, on December
20, 1999, this Court unanimously found in favor of the
bookstore. The Court held that subjective factors, such as
the owner’s “good-faith desire to sell nonadult products”,
were irrelevant under the Zoning Resolution, which only
considers the comparative percentages of adult floor space
11
and stock. See City of New York v. Les Hommes, 94 N.Y.2d
267, 273 (1999).
The City’s Zoning Resolution of 2001
In the wake of this Court’s decision in Les Hommes and
other decisions, the City claimed that the courts had
misread the 1995 Resolution. Therefore, on October 31,
2001, the City mounted another offensive against bookstores
offering some adult expression. In the twilight of Mayor
Rudolph Giuliani’s administration, the City rolled out a
new amendment to the Zoning Resolution, which drastically
redefined what constitutes an “adult establishment” (PA.71-
88, 165). This is the law that the City is trying to
resuscitate through this appeal.
The 60/40 Rule, which was so instrumental in
sustaining the constitutionality of the 1995 Resolution,
was abolished for theaters, eating and drinking
establishments, or any use other than bookstores (PA.32,
103-06). And, although the Zoning Resolution still utilizes
the 60/40 equation in defining an “adult bookstore,” the
City’s new amendments completely debilitated that rule by
strangling it with eight additional restrictions that, if
present, render a bookstore’s entire non-adult stock a
12
“sham,” regardless of the value and public appeal of its
non-adult materials.
Therefore, under the 2001 Amendments, a store’s
considerable inventory of top selling non-adult DVDs will
not be considered as stock -- for purpose of a 60/40
calculation -- if any “one or more of the following
features” exist:
1. Any customer must pass through an area of
adult material to access any non-adult
material;
2. the store has any private viewing booths;
3. a patron who purchases non-adult material
must pay for it near where any adult material
is located;
4. the store offers a larger selection of adult
titles than non-adult titles;
5. minors are restricted from the whole store or
any section which carries non-adult material;
6. any sign advertising adult material is
“disproportionate in size” to the signs
advertising non-adult materials;
7. the store contains a window display in which
the adult products are disproportionate to
the number of non-adult products; or
8. non-adult videotapes are offered for sale
while adult videotapes can be sold or rented
(PA.32, 108-110).
13
Finally, the 2001 Amendments provide that a bookstore,
which fully complies with the stock and floor space
dictates of the 60/40 Rule, can still be closed based on
“[o]ther features relating to configuration and layout or
method of operation that the [Building] Commissioner, in
his sole discretion, has determined render the sale or
rental of adult material a substantial purpose of a
business” (PA.108-11) (emphasis supplied).
The Challenge to the 2001 Amendments
On September 26, 2002, a small bookstore in Manhattan,
and a theater in Queens, representing the interests of the
transformed businesses (the “Bookstores”), sought
injunctive relief before Justice Louis B. York, in the
Supreme Court, New York County (PA.41). The City moved for
summary judgment and the Bookstores opposed it with
affidavits from various sources, including
(1) Dr. Elliott D. Sclar, a Professor of Urban
Planning at Columbia University, whose analysis of
approximately 1,000 real estate transactions revealed “no
statistically significant relationship between the presence
of 60/40 uses and an adverse impact on adjacent property
values” (PA.158);
14
(2) Dr. Charles Winick, a member of the graduate
faculty at John Jay College of Criminal Justice, who
directed a study of users of adult materials in New York
City for the President’s Commission on Obscenity and
Pornography. Dr. Winick’s research revealed that there is
no correlation between 60/40 businesses and criminal
complaints or other negative effects (PA.158); and
(3) Martin Gallent, a member of the City’s Planning
Commission from 1969 to 1986 and the Vice Chairman of the
Commission for 13 years, who stressed that since there was
no study or findings of adverse secondary effects caused by
these new businesses, this Zoning Resolution was an attempt
to regulate the content of expression, rather than any
legitimate governmental or zoning purpose.9
These expert and authoritative analyses were
uncontested by the City.
9 It is a matter of public record that during the long
history of this case, the Honorable Louis B. York passed
away on November 16, 2014; Herald Price Fahringer, lead
counsel for the Plaintiffs, passed away on February 12,
2015; Former Vice Chairman of the City’s Planning
Commission, Martin Gallent, passed away on July 16, 2006;
and Dr. Charles Winick passed away on July 4, 2015.
15
The Supreme Court Found the Law to be Unconstitutional
On September 9, 2003, Justice York granted the
Bookstores’ motion for summary judgment.10 He stressed that
“as a matter of law,” the City had not demonstrated that
“there is a rational basis for the additional restrictions
in the 2001 Amendments.”11 And, since there was no evidence
that the 1995 Resolution had been ineffective in correcting
the City’s problem, Justice York held that the 2001
Amendments were not sufficiently narrowly tailored to allow
for the protection of free speech. People Theatres, 1 Misc.
3d at 397.
On April 12, 2005, the Appellate Division reversed and
upheld the 2001 Amendments. For the People Theatres of
N.Y., Inc. v. City of New York, 20 A.D.3d 1 (1st Dept.
2005) (“Appellate Division I”). However, the Appellate
Division granted leave to appeal to this Court (PA.151).
10 For the People Theatres of N.Y., Inc. v. City of New
York, 1 Misc. 3d 394 (Sup. Ct. N.Y. Co. 2003), available at
RA.1-5; Ten’s Cabaret, Inc. v. City of New York, 1 Misc. 3d
399 (Sup. Ct. N.Y. Co. 2003) (related action brought by
cabarets challenging the same law).
11 Ten’s Cabaret, 1 Misc. 3d at 409.
16
The Court of Appeals Remanded for a Trial
and Emphasized that if the City Failed to Meet
its Burden, the “Bookstores Will be Entitled to
Judgment and a Declaration that the 2001
Amendments are Unconstitutional”
This Court found that a question of fact existed as to
whether 60/40 businesses were so transformed in character
that they no longer resemble the kinds of exclusively adult
uses found to create negative secondary effects. Questions
of fact also existed concerning whether these businesses’
“technical compliance with the 60/40 formula is merely a
sham” (PA.161). Thus, the Court remanded the matter back to
Justice York for a trial. See For the People Theatres of
N.Y., Inc. v. City of New York, 6 N.Y.3d 63 (2005); PA.135.
This Court held that because the Bookstores’ evidence
disputed the City’s findings, on remand the City bore the
burden of supplementing the record with evidence that would
justify its ordinance (PA.160). Moreover, if the City
“fairly supported its position on sham compliance” such
that “despite formal compliance with the 60/40 formula,
these businesses display a predominant, ongoing focus on
sexually explicit materials or activities, and thus their
essential nature has not changed,” then the City will have
“satisfied its burden to justify strengthening the 1995
17
Ordinance by enacting the 2001 Amendments, and will be
entitled to judgment in its favor” (PA.162).
However, recognizing that the City may not meet its
burden, the Court stressed that, in such case,
plaintiffs will prevail on their
claim that the 2001 Amendments are
insufficiently narrow and therefore
violate their free speech rights.
In that event, plaintiffs will be
entitled to judgment and a
declaration that the 2001
Amendments are unconstitutional
(PA.162) (emphasis supplied).
Therefore, the matter was sent back to Justice York
for further factual findings consistent with this Court’s
decision.
Three dissenting Judges (Kaye, C.J., G.B. Smith, &
Ciparick, JJ.), found that the only evidence in the record
was actually contrary to the City’s belief that the 1995
Resolution had proven to be ineffective to regulate adult
establishments. The dissenters underscored that the
Plaintiffs “produced substantial evidence that the 60/40
businesses are functionally different from the pre-1995
businesses” (PA.168) (emphasis supplied).
18
Moreover, “many of the community representatives in
areas with a heavy presence of 60/40 businesses who had
supported the 1995 resolution now opposed the 2001
amendment.” Id. Therefore, the dissenters would have struck
down this unnecessary change to the existing law (PA.163-
68).
The Remand and Trial
After extensive discovery proceedings, the Bookstores’
trial began on January 12, 2009, and lasted for five days
(PA.174-788). The City presented the testimony of three of
its employees: Police Officer Raymond Dowd and Building
Inspectors Robert Iulo and Robert Sacklow (PA.210-535). The
City also introduced, over objection, videos filmed inside
a few bookstores that were specifically selected by the
City (PA.249, 255, 263, 342, 866-69).
At the conclusion of the City’s evidence, the court
reserved decision on the Bookstores’ motion for judgment in
their favor based on the City’s failure to establish a
prima facie case (PA.538, 589).
19
Thereafter, the Bookstores called four witnesses:
(1) Thomas Simmonds, a manager for Show World, located
at the corner of 42nd Street and Eighth Avenue in
Manhattan, testified about the substantial steps Show World
took to dramatically transform its business to comply with
the 60/40 Rule. Show World spent hundreds of thousands of
dollars to reconfigure its premises to conform to the law.
It now advertises its non-adult entertainment in widely
distributed publications, such as New York Magazine and
Time Out New York (PA.590-639);
(2) Joseph Amaa, who operates the Plaintiff bookstore
at 216 West 50th Street in Manhattan, stated that two-
thirds of his store is dedicated to non-adult materials,
such as DVDs of feature films and mainstream magazines,
which are all located at the front of the store. The adult
material is located at the very back of his store (PA.640-
71);
(3) George Androtsakis, the manager of the Fair
Theatre in Astoria, Queens, testified about the steps he
took to convert his theater from an adult establishment to
a 60/40 business (PA.672-745); and
20
(4) Nicole Neckles, an associate at Fahringer & Dubno,
identified a videotape received in evidence showing the
front portion of one of the bookstores profiled by the City
as part of its case (PA.746-69).
Justice York personally conducted inspections of the
Plaintiffs’ establishments with all parties present
(PA.1129).
On March 29, 2010, Justice York found that the City
failed to meet its burden of proof to establish that
theaters, which reduce their adult component to less than
40 percent of the business, have a predominant, ongoing
focus on adult materials under this Court’s mandate
(PA.9).12 The court did, however, find that the City met,
what he labeled, its “light” burden relating to bookstores
(PA.40).
12 The City did not appeal Justice York’s judgment relating
to theaters.
21
The Appellate Division Remanded the Case to
the Trial Court for Further Findings and
Consideration of Evidence that There has
Been a Significant Change in the Character of
60/40 Businesses
On April 7, 2011, a unanimous panel of the Appellate
Division vacated Justice York’s findings and remanded the
case back with instructions concerning how a determination
could be made regarding whether 60/40 businesses have a
predominant focus on sexually explicit materials. See For
the People Theatres of N.Y., Inc. v. City of New York, 84
A.D.3d 48 (1st Dept. 2011) (Gonzalez, P.J., Saxe,
Catterson, Acosta & Manzanet-Daniels, JJ.) (“Appellate
Division II”).13
The Appellate Division underscored that, on
remittitur, the trial court must address any relevant
evidence presented by the Bookstores which shows that
“there has been a significant change in the character of
60/40 businesses.” 84 A.D.3d at 63. For instance, the trial
court could consider evidence that the “signs have been
significantly modified to eliminate any emphasis on adult
material and that customers are not confronted with
13 For the convenience of the Court this decision is
reproduced in the Respondents’ Appendix at RA. 24.
22
predominantly adult materials when they first enter the
stores.” 84 A.D.3d at 63, n.14.
Moreover, because of the consequences for
constitutionally protected expression, the Appellate
Division noted that, on remand, the trial court should
apply “intermediate scrutiny” and assess the City’s
evidence in light of this “somewhat heightened standard.”
84 A.D.3d at 63 (emphasis supplied).
The Trial Court Found “Significant and
Distinct Differences between the 1994 Adult
Entities and 60/40 Entities”
The Appellate Division encouraged the City to
introduce “any additional evidence” that it wished to
adduce. See People Theatres, 84 A.D.3d at 62. Nevertheless,
the City failed to produce any further evidence. Instead,
the City relied on the prior record.
Thereafter, on August 30, 2012, after re-considering
the hearing evidence and following the directions from the
Appellate Division, Justice York issued a comprehensive 22-
page decision addressing the issues identified by the
23
Court.14 He found that there were “significant and distinct
differences” between the 1994 exclusively adult
establishments and 60/40 entities, such that the “current
establishments no longer resemble their 1994 predecessors.”
See For the People Theatres of N.Y., Inc. v. City of New
York, 38 Misc. 3d 663, 675 (Sup. Ct. N.Y. Co. 2012);
PA.913.
Justice York further concluded that “these entities no
longer operate in an atmosphere placing more dominance of
sexual matters over non-sexual ones” (PA.913). Since the
City failed to meet its burden, Justice York abided by this
Court’s directive and granted judgment to the Bookstores,
declaring the 2001 Amendments to be unconstitutional
(PA.162, 915).
Enforcement of the 2001 Amendments was stayed
throughout these protracted proceedings. And, on August 30,
2012, Justice York permanently enjoined the City from
enforcing the unconstitutional amendments (PA.915). The
14 Justice York noted that the Appellate Division’s
directions caused him to “look more deeply into the factual
findings and the standards” by which to make his judgment
(PA.911).
24
final judgment was entered on October 10, 2012 (PA.916). On
July 8, 2013, the City perfected this appeal.
The Appellate Division Confirmed that the
City Failed to Meet its Burden and that the
2001 Amendments are Unconstitutional
On July 21, 2015, the Appellate Division, First
Department affirmed Justice York’s finding that the 2001
Amendments to New York City’s adult use zoning regulation
as to cabarets and bookstores are an “unconstitutional
violation” of the First Amendment (PA.1135). The Court also
affirmed Justice York’s judgment that permanently enjoined
the City from enforcing the amendments. Id. (“Appellate
Division III”).15
In a carefully considered decision, the Appellate
Division, “[a]ccording due deference to the factual
findings of the trial court,” found that “the City has not
met its burden with respect to the adult video and
bookstores” (PA.1131). The Court, which has its own fact-
finding powers, concluded that the evidence presented in
15 It is a matter of public record that the City of New York
continues to use the definition of “Adult Establishment” --
from the 2001 Amendments -- in the City’s Zoning Resolution
even though that definition was struck down in 2012. See
http://www1.nyc.gov/assets/planning/download/pdf/zoning/zon
ing-text/art01c02.pdf?r=032216
25
the trial court regarding signage at 60/40 bookstores “is
not indicative of a predominant sexual focus in most of the
stores” (PA.1129).
The Appellate Division also found that the evidence
presented by the City regarding the exclusion of minors is
“not indicative of a predominant sexual focus in most of
the stores, since nearly half of the stores do not restrict
the admittance of minors at all” (PA.1130). In addition,
the Appellate Division found “ample evidence that most of
the stores keep the nonadult materials in the front of the
stores, making them easy to access” (PA.1130-31).
Two Justices dissented. They believed that the City
met its burden of establishing that 60/40 bookstores
“retained a predominant focus on sexual materials or
activities” (PA.1148).
On or about October 19, 2015, the City appealed to
this Court because two Justices of the Appellate Division
dissented and the case purportedly raised a constitutional
question (PA.1106). The Plaintiffs objected to this Court
exercising subject matter jurisdiction because the
constitutionality of the 2001 Resolution was already
26
resolved back in 2005 and the two-Justice dissent was not
on a question of law.
The Court directed the parties to brief the merits.
However, the Court noted that the “termination of the
jurisdictional inquiry does not preclude the Court from
addressing any jurisdictional concerns in the future, even
those subject to a previous jurisdictional inquiry.” See
Letter of John P. Asiello, dated February 9, 2016, at 1.
These are the essential facts that have brought us to
this point in time.
27
POINT I
THE COURT OF APPEALS DOES NOT HAVE
SUBJECT MATTER JURISDICTION OVER
THIS APPEAL
The Court of Appeals’ jurisdiction is narrowly limited
to questions of law by Article VI, § 3 of the New York
State Constitution. The City claims that this case presents
the “substantial constitutional question of whether, in
striking down the 2001 amendments on free expression
grounds, the lower courts improperly elevated the City’s
burden of proof and second-guessed the legislative
judgments underlying the amendments.” City Br. at 38-39.
However, this Court does not have subject matter
jurisdiction. The constitutionality of New York City’s
adult zoning law was already resolved more than 10 years
ago by this Court in For the People Theatres of N.Y., Inc.
v. City of New York, 6 N.Y.3d 63 (2005).16 The Court held
16 Back in 2003, the City endeavored to take a direct appeal
to this Court from the trial court’s grant of summary
judgment and finding that the amendments were
unconstitutional. On January 12, 2004, this Court denied
the relief sought by the City and transferred the appeal to
the Appellate Division because a “direct appeal does not
lie when questions other than the constitutional validity
of a statutory provision are involved.” For the People
Theatres of N.Y., Inc. v. City of New York, 1 N.Y.3d 590
(2004).
28
that the City “satisfied its burden to justify a secondary-
effects rationale” for the amendments. 6 N.Y.3d at 81-82.
The only issue that remained was the purely factual
question of “whether plaintiffs have demonstrated that the
City’s evidence does not support its rationale, or have
furnished evidence that disputes the City’s factual
findings.” 6 N.Y.3d at 82.
Thus, the Remittitur from this Court was extremely
limited, straightforward and clear:
If the trier of fact determines, after
review of this evidence, that the City
has fairly supported its position on
sham compliance -— i.e., despite formal
compliance with the 60/40 formula,
these businesses display a predominant,
ongoing focus on sexually explicit
materials or activities, and thus their
essential nature has not changed -— the
City will have satisfied its burden to
justify strengthening the 1995
Ordinance by enacting the 2001
Amendments, and will be entitled to
judgment in its favor.
If not, plaintiffs will prevail on
their claim that the 2001 Amendments
are insufficiently narrow and therefore
violate their free speech rights. In
that event, plaintiffs will be entitled
to judgment and a declaration that the
2001 Amendments are unconstitutional. 6
N.Y.3d at 83; PA.162.
29
As a consequence, throughout the proceedings in the
Supreme Court the City repeatedly urged that this Court
remitted the matter for trial on a “narrow factual
question.”17 The trial court conducted an evidentiary
hearing on this issue and made factual findings which were
affirmed by the Appellate Division. See For the People
Theatres of N.Y., Inc. v. City of New York, 38 Misc.3d 663
(Sup. Ct. N.Y. Co. 2012), aff’d, 131 A.D.3d 279 (1st Dept.
2015).
The City is now calling into question the manner in
which the trial court and Appellate Division considered the
evidence and made factual findings. However, whether 60/40
bookstores display a predominant, ongoing focus on sexually
explicit materials or activities, is not a constitutional
question. The stores either do, or do not, display a
predominant, ongoing focus. That factual question was
resolved after (1) an evidentiary hearing, (2) Justice
York’s personal inspection of the Plaintiffs’
establishments, and (3) consideration of the whole record.
17 See City’s Memorandum of Law After Remand, dated August
30, 2011, at 2 (emphasis supplied).
30
Moreover, as a court of limited jurisdiction, the
Court of Appeals has no power to review findings of fact
that are affirmed by the Appellate Division. Indeed, unlike
the Appellate Division, this Court has no discretionary
power to review facts unless it can be said, as a matter of
law, the findings are unsupported or incredible. People v.
Gruttola, 43 N.Y.2d 116, 122 (1977). Here, as developed
below, the City cannot plausibly claim that the facts found
by Justice York and affirmed by three Justices of the
Appellate Division were, as a matter of law, unsupported or
incredible.
Undeterred, the City urges that “Plaintiffs’ evidence
in no way undermined the credibility of the City’s
evidence” (City Br. at 67). Indeed, the City dedicates much
of its brief to reviewing the hearing evidence (see, e.g.,
City Br. at 67-73). However, the trial court, which
presided over the hearing and assessed the credibility of
the City’s evidence, found that the City failed to meet its
burden. The City challenged these findings in the Appellate
Division and lost. Those factual findings cannot be
reviewed here.
31
The City also cannot manufacture jurisdiction in this
Court by re-litigating constitutional issues that were
already determined by this Court. See Thomas R. Newman, New
York Appellate Practice, § 11.02[3] (Matthew Bender, ed.,
2004) (“[r]egardless of what the magnitude of a
constitutional question otherwise might be, the question is
not substantial where it has been authoritatively resolved
in a recent decision of the Court of Appeals”), citing City
of New Rochelle v. Stevens, 300 N.Y. 754 (1950) (appeal
dismissed where the Court had upheld the statute’s
constitutionality five years earlier).
Furthermore, whether or not the lower courts
improperly elevated the City’s burden of proof and second-
guessed the legislative judgments underlying the amendments
are not constitutional questions that are reviewable under
CPLR § 5601(b)(1).18 The construction of the City’s Zoning
Resolution is not in question. The only dispute, which was
the subject of this Court’s Remittitur, relates to whether
18 CPLR § 5601(b)(1) provides that an appeal may be taken as
of right to the Court of Appeals “from an order of the
appellate division which finally determines an action where
there is directly involved the construction of the state or
of the United States.”
32
the 60/40 “businesses display a predominant, ongoing focus
on sexually explicit materials or activities” (PA.162).
There is no legal question that puts this case within
this Court’s limited domain. The City clearly does not like
the factual findings made by Justices York, Kapnick,
Mazzarelli and Feinman. However, that does not transform
this into a legal determination.
The Two-Justice Dissent Was Not on a
Question of Law
The City also cannot gain entry into this Court by
relying on the fact that two Justices from the Appellate
Division dissented. Significantly, under CPLR § 5601(a),
the Court of Appeals “must dismiss an appeal as of right
where the Appellate Division dissent relates solely to a
matter not reviewable by the Court, such as findings of
fact affirmed by the Appellate Division majority.” Newman,
New York Appellate Practice, § 11.02[2].
33
And, when the “nature of the Appellate Division
dissent is ambiguous, the Court has resolved the ambiguity
against the appellant.” Id. See, e.g., Matter of Anonymous,
25 N.Y.3d 1083 (2015) (appeal dismissed sua sponte because
the two-Justice dissent was not on a question of law).19
Here, the dissent was predicated upon the mistaken
belief that the “trial court failed to undertake an
adequate analysis of the relevant factors” delineated by
this Court. People Theatres, 131 A.D.3d at 295 (Andrias,
J., dissenting). The dissent then conducted its own
analysis of the factors to determine whether specific
stores have a predominant focus on adult material. 131
A.D.3d at 303-07.
19 See also Marcus CC. v. Erica BB., 22 N.Y.3d 911 (2013);
Saperston v. Holdaway, 20 N.Y.3d 1052 (2013); Gravius v.
County of Erie, 17 N.Y.3d 896 (2011); Matter of Amoretta
V., 89 N.Y.2d 935 (1997). See also Reis v. Volvo Cars of
North America, 21 N.Y.3d 1051 (2013) (costs awarded to
respondent for motion to dismiss appeal because two-Justice
dissent was not on a question of law in favor of the
appellant). This list illustrative only and by no means
exhaustive.
34
As a result of its fact-specific review of the record
-- which included consideration of the number of private
viewing booths in each bookstore and the signage inside the
stores -- the dissent found that “[c]ontrary to the view of
the majority, the record fairly supports the City’s
contention that the adult establishments reviewed
emphasized sexual activities or materials over nonadult
materials.” 131 A.D.3d at 303. This determination was based
upon an assessment of the facts.
The dissent also believed that the majority allowed
“improper reconsideration of ‘negative secondary effects’
to permeate” its decision. 131 A.D.3d at 295. The dissent
claims that that the “trial court -- contrary to the
directions of [the Appellate Division] and the Court of
Appeals -- also considered whether there was evidence that
these establishments caused negative effects.” 131 A.D.3d
at 300.
However, that is incorrect and unsupported by the
record. On remand, absolutely no evidence was presented to
the trial judge by either side relating to whether
bookstores cause adverse secondary effects (PA.781).
Indeed, during the trial of the bookstores Justice York
35
excluded testimony on the basis that the Court of Appeals’
decision “says that secondary effects are not relevant”
(PA.779-80).
Justice York’s Dicta, Questioning How an 18-
Year-Old Study of Exclusively Adult
Businesses Could be Applied to Padlock
Current 60/40 Businesses, Played No Part in his
Decision
The trial judge’s brief discussion of negative effects
in his decision was clearly dicta. Indeed, it was confined
to a section of the court’s decision entitled “Dicta.” 38
Misc.3d at 675; PA.914. As long recognized by this Court,
“[d]icta are opinions of a judge which do not embody the
resolution or determination of the court, and made without
argument, or full consideration of the point, are not the
professed deliberate determinations of the judge himself.”
Rohrbach v. Germania Fire Ins. Co., 62 N.Y. 47, 58 (1875).
Justice York expressly stated that his “reflections form no
part” of his decision (PA.914).
The majority never revisited negative effects and
specifically noted that any correlation between adult
establishments and negative effects “has already been
resolved by the Court of Appeals and thus is not before
us.” 131 A.D.3d at 289. Since the dicta was not part of the
36
decisions below, it does not provide a basis for this Court
to exercise jurisdiction over the matter. And, the City
cannot create a legal question from the dissent where no
legal issue exists.
POINT II
THE APPELLATE DIVISION AND TRIAL
COURT PROPERLY GRANTED JUDGMENT
TO CONSTITUTIONALLY PROTECTED
BUSINESSES SINCE 60/40 BOOKSTORES
“NO LONGER RESEMBLE” EXCLUSIVELY
ADULT ESTABLISHMENTS AND DO NOT
HAVE A PREDOMINANT, ONGOING
FOCUS ON ADULT MATERIALS
On appellate review of a nonjury trial, the trial
court’s “findings of fact should be viewed in a light most
favorable to sustain the judgment.”20 Furthermore, deference
should be given to the trial court’s assessment of the
evidence and the credibility of the witnesses.21 Indeed, a
trial court’s determinations may only be disturbed on
20 In re Metro. Transit Auth., 86 A.D.3d 314, 320 (1st Dept.
2011); Richstone v. Q–Med, Inc., 186 A.D.2d 354 (1st Dept.
1992).
21 See Claridge Gardens, Inc. v. Menotti, 160 A.D.2d 544,
544-45 (1st Dept. 1990).
37
appeal where its conclusions could not have been reached
under any fair interpretation of the evidence.22
And, when the Appellate Division reviews a judgment
after a bench trial, “it has virtually plenary power to
‘render the judgment it finds warranted by the facts.’”
Baba-Ali v. State, 19 N.Y.3d 627, 640 (2012), quoting
Northern Westchester Professional Park Assoc. v. Town of
Bedford, 60 N.Y.2d 492, 499 (1983).
Here, the Appellate Division correctly affirmed the
trial court’s carefully considered findings -- after a full
evidentiary hearing with live witnesses and site visits --
that the Bookstores eliminated their adult focus and
diversified their stock to include a new inventory of
expressive materials (PA.912-13).
22 See Lou Atkin Castings, Inc. v. M. Fabrikant & Sons,
Inc., 216 A.D.2d 111, 111 (1st Dept. 1995).
38
This Court’s Remittitur Did Not Provide
Guidelines for the Lower Courts to Use to
Determine Whether 60/40 Businesses Display a
Predominant, Ongoing Focus on Sexually
Explicit Materials or Activities
The trial court was asked to resolve whether the
nature of these entities has so changed that they no longer
resemble their 100% forbearers (PA.162). However, this
Court did not provide any guidelines to use in assessing
this factual issue.
After the initial remand, without any guidance,
Justice York endeavored to answer the question posed by
this Court in an “extremely terse decision.” See PA.26; 84
A.D.3d at 59. Justice York “did not elaborate on the
criteria” or state the facts by which he reached his
determination. 84 A.D.3d at 59.
To assist Justice York on remand, the Appellate
Division outlined the “standard” that the Supreme Court
“must follow on remittitur in considering the plaintiffs'
challenge to the 2001 Amendments.” 84 A.D.3d at 60. In
crafting its guidelines, the Appellate Division relied
heavily on the Department of City Planning Study from 1994,
which formed the underpinnings for the 1995 Resolution. 84
A.D.3d at 61. In a well reasoned unanimous decision, the
39
Appellate Division noted certain “characteristics” of adult
uses that can be “linked to a focus on sexually explicit
materials.” 84 A.D.3d at 61.
Based upon the factors identified in the DCP Study,
the Appellate Division set forth guiding principles for the
trial court to consider in assessing the hearing evidence.
Thus, to determine whether a bookstore has a predominant
focus on adult materials, the following factors, among
others, may be relevant:
(1) The presence of large signs advertising adult
content;
(2) a significant emphasis on the promotion of
materials exhibiting “specified sexual
activities” or “specified anatomical areas,” as
evidenced by a large quantity of peep booths;
(3) the exclusion of minors from the premises; and
(4) difficulties in accessing non-adult materials. 84
A.D.3d at 61-62.
The Appellate Division also noted that the trial judge
should consider the Bookstores’ claim that the “signs have
been significantly modified to eliminate any emphasis on
adult material and that customers” are not faced with
predominantly adult materials when they first enter the
stores. 84 A.D.3d at 63, n.14.
40
Non-Adult Material is Readily Accessible to
Customers in the Front of 60/40 Bookstores,
Which is the Preeminent and Predominant
Selling Space
Following that roadmap, Justice York found that, in
contrast with exclusively adult establishments, the 60/40
bookstores “contain separate adult and non-adult sections
with more product or space devoted to non-adult features”
(PA.912) (emphasis supplied). Moreover, the “non-adult
portion is almost always located in the front of the entity
with the adult section in the back, so that a patron can
visit the front and never go to the back of the store, a
distinct difference from the 1994 areas” (PA.912-13)
(emphasis supplied).
Thus, in virtually all of the 60/40 businesses the
non-adult DVDs, videos and magazines are readily accessible
in the front of the stores, which traditionally is the
primary point of sale when a customer enters a retail
establishment.23 In marked contrast, the adult material is
23 It is fundamental that most people visit the front of a
retail store. As such, storeowners customarily use that
prime selling space, up front, to feature merchandise that
is appealing to the retailer’s audience.
41
typically relegated to the less-accessible rear of the
store.
Justice York’s findings are fully verified by the
record. For example, the City pointed to Exquisite DVD,
located at 239 East 14th Street in Manhattan, to support
its case. However, the evidence at trial established that
the front of Exquisite DVD is fully occupied by non-adult
merchandise which is conveniently divided by genre, such as
“comedy,” “action,” “horror” and “television series”
(PA.766, 768; RA.39, 52). These new releases and Blu-ray
DVDs are often of the latest feature films (PA.766; RA.39-
56).
As noted by Justice York, among the impressive
selection of top rated non-adult titles occupying the front
of the store are popular films such as Superman, Dream
Girls, Rent, The Pursuit of Happyness, and Mamma Mia
(PA.767-68, 905; RA.48, 51, 52). In addition, there are a
substantial number of DVDs featuring prominent actors such
as George Clooney, Will Smith and Cameron Diaz (PA.767-68,
906). The videostore also now offers a large selection of
DVD players, videogame systems and accessories for DVDs and
iPods (PA.767-68; RA.43-44, 53).
42
Similarly, the Plaintiff bookstore located at 216 West
50th Street, which Justice York personally inspected, has
non-adult DVDs, videotapes, magazines and t-shirts, among
other forms of general interest merchandise, in the very
front of the store (PA.647). The non-adult DVDs comprise
every genre of popular entertainment, including action
movies, karate and musicals (PA.655). The store also offers
for sale a large selection of current and popular non-adult
magazines, such as Time, Newsweek, People and Ebony, which
are prominently displayed on racks in the front of the
store (see A.905; RA.57).
Thus, adult DVDs and booths, consigned to the back of
the stores, do not constitute the predominant, ongoing
focus of the bookstores. Instead, non-adult DVDs, videos
and general interest magazines now occupy more prominent
selling space in the front of the stores.24
24 At trial it was also established that only non-adult
material is visible and available in the front of Blue Door
Video, located at 946 Third Avenue, in Brooklyn (PA.455).
And, the front of another Blue Door Video store, located at
87 First Avenue, in Manhattan, is also devoted to non-adult
videos and materials (PA.264). The same is true at the
video store located at 3707 Provost Avenue in the Bronx
(PA.279). Gotham City Video, located at 687 Eighth Avenue,
in Manhattan, also has non-adult DVDs in the front of the
store (PA.458). In addition, only non-adult merchandise is
43
The Appellate Division agreed that “there is nothing
in the record to suggest” that there is any difficulty in
accessing non-adult material (PA.1130). Indeed, the
Appellate Division made a factual finding that there is
“ample evidence that most of the stores keep the nonadult
materials in the front of the stores, making them easy to
access” (PA.1130-31).
Signage Has Been Modified to be Less Graphic
and to Eliminate an Emphasis on Adult
Materials
After considering the trial evidence, testimony and
site visits, Justice York found that the “exterior and
interior signage has changed” (PA.913). He noted that there
are “almost no garish neon lighted signs, no hard-core
sexual images or language on them and the non-adult signage
is as prominent as the adult signage, certainly a
significant change from the 1994 situation” (PA.913).
visible at 746 Third Avenue in Brooklyn (PA.461).
Similarly, at the video store at 100 Greenwich Street, and
Amsterdam Video, at 287 Amsterdam Avenue, in Manhattan, a
person could purchase a non-adult DVD without going into
the adult section in the rear (PA.372, 379).
44
The Appellate Division agreed that “most of the
signage is not graphic” and that “none of the stores have
‘XXX’ on the outside of the premises” (PA.1128). The
Appellate Division further found, as a matter of fact, that
“there is no evidence that any of the stores have adult
signs that are larger than those of nearby nonadult
businesses, or even that the signs advertising adult
content are large.” Id.
The Appellate Division also found that at least six
bookstores have significantly modified their signage and
“signs advertising nonadult stock have been added so as to
limit, if not eliminate, any emphasis on adult material”
(PA.1128-29). The Appellate Division concluded that the
“signage evidence is not indicative of a predominant sexual
focus in most of the stores” (PA.1129).
The Appellate Division also found that “only 6 of the
13 stores exclude minors entirely, and at least one other
store restricts minors from entering its adult area”
(PA.1130). The court further noted that “at least one of
plaintiffs’ witnesses testified that minors are excluded
because they tend to come in groups and disrupt the store.”
Id. As a consequence, the Appellate Division properly
45
concluded that this evidence is “not indicative of a
predominant sexual focus in most of the stores, since
nearly half of the stores do not restrict the admittance of
minors at all” (PA.1130).
The City Did Not Meet its Burden Merely by
Presenting Evidence that Bookstores had
Private Viewing Booths
The City claims that the Appellate Division
“explicitly found that the City had adduced evidence that
supported its legislative judgment on predominant sexual
focus” (City Br. at 3). In that regard, the City cites to
the Appellate Division’s finding that most of the
bookstores highlighted by the City have private viewing
booths which “supports the City’s argument that the stores
are predominantly sexually focused” (PA.1130). However, the
Appellate Division recognized that “promotion of sexually
explicit materials is only one” of the relevant factors
identified in Appellate Division II after its careful
review of the DCP Study (PA.1130)(emphasis supplied).
46
In Appellate Division II the Court was careful to
point out that while a “large quantity of ‘peep booths’
featuring adult films” may serve as one indication that an
establishment has an adult focus,25 the “City cannot simply
point to the presence of peep booths as establishing that
there is an ongoing sexually explicit use.” Instead, the
City “must show that the peep booths are being used to
promote sexually explicit adult materials.”26 After all, to
“do otherwise could potentially restrain the exercise of
legitimate speech.” Id.
Viewing booths are an important attribute of free
expression because they provide customers with the means of
privately viewing a wide selection of constitutionally
protected films that cannot be seen elsewhere. And, the
viewing of motion pictures by means of coin-operated
devices, in booths, is protected by the Free Speech Clause
25 See People Theatres, 84 A.D.3d at 61-62 (emphasis
supplied).
26 84 A.D.3d at 62, n.13.
47
of the New York State Constitution. City of New York v. S&H
Book Shop, Inc., 41 A.D.2d 637, 637 (1st Dept. 1973).27
Moreover, the evidence at trial refuted the City’s
claim that the protected adult entertainment in the booths
is the predominant, ongoing focus of the bookstores. For
instance, Inspector Robert Iulo testified that during
visits to two bookstores in Brooklyn, no patrons were
observed in the booth area. However, customers were
observed in the non-adult sections (PA.456-58, 461).
Consequently, no evidence was produced to support the
City’s claim that stores with viewing booths are inherently
adult establishments.
The City also failed to establish that the presence of
viewing booths means that 60/40 bookstores are the same as
the adult establishments studied back in 1994. There is a
world of difference between an establishment that only
offers adult entertainment and has booths, and a bookstore
that has a wide diversity of information and booths. This
27 See also Time Square Books, Inc. v. City of Rochester,
223 A.D.2d 270, 273 (4th Dept. 1996); Barbulean v. City of
Newburgh, 168 Misc. 2d 728, 733 (Sup. Ct. Orange Co. 1995);
People v. Mitchell, 74 Misc. 2d 1053 (Crim. Ct. N.Y. Co.
1973).
48
is evidenced by Inspector Iulo’s observations of patrons
examining the non-adult stock while disregarding the booth
area altogether (PA.456-58, 461).
The fact that a store may have signage for its booths
does not create a predominant focus on the booths. As
recognized by Justice York, a review of one bookstore’s
exterior reveals that the booths are not the predominant
focus of the signage (PA.905; RA.63-64). Instead, the signs
actually promote “VIDEO,” “DVD,” “MAGAZINES,” and
“NOVELTIES,” in the same sized letters above the single
reference to the viewing booths. Moreover, the store’s
vivid neon and illuminated signage relates exclusively to
DVDs, novelties and magazines, rather than the booths. Id.
There Has Been a Considerable Change in the
Character of the Bookstores, Which Now
Appeal to a Much Broader Audience
The City claims that Justice York did an “abrupt
about-face” after the remand from the Appellate Division
(City Br. at 34). However, the Appellate Division reversed
and vacated, on the law, Justice York’s prior judgment,
which upheld the constitutionality of the 2001 Amendments
regarding bookstores. People Theatres, 84 A.D.3d at 66.
Justice York reached a different conclusion after the
49
remand in large part because he was directed by the
Appellate Division to consider “any relevant evidence
proffered by the plaintiffs to show that there has been a
significant change in the character of 60/40 businesses.”28
84 A.D.3d at 63.
On remand, Justice York was free to consider that in
most 60/40 businesses there are “legitimate activities
going on in the non-adult sections,” which is “another
feature distinct” from the adult establishments studied
back in 1994 (PA.913). For example, the court noted that
Show World, which formerly featured “live nude
performances”, was “revamped for the showing of non-adult
films,” such as vintage films, and to provide a showcase
for independent film producers (PA.594-96, 904).
28 The doctrine of “law of the case” does not apply where,
as here, the trial court’s determinations were reversed
with directions from the appellate court. See David D.
Siegel, New York Practice: Law of the Case, § 448 (5th ed.
2013) (the “order embodying the finding is of course open
to appellate review”). See also Hilltop Village Co-op.
Section No. 3, Inc. v. Schleifman, 118 A.D.2d 685, 686 (2d
Dept. 1986).
50
In addition, the space devoted to adult material at
Show World was reduced to less than 20 percent of the floor
space (PA.904). And, in an effort to attract new customers,
Show World began engaging Off Broadway productions in its
theater, including classic works by Anton Chekhov, Samuel
Beckett, Moliere and William Shakespeare (PA.596-97, 904).
Justice York found that Show World also converted its
theater space into a comedy club, which features top rated,
as well as up-and-coming standup comedians, including
television stars, such as Bob Saget, Kathy Griffin and Dave
Chappelle; as well as Judah Friedlander of Saturday Night
Live; and Wendy Williams, a well-known television and
national radio personality (PA.601-05, 905). Moreover, Show
World advertises its non-adult entertainment in widely
distributed and prominent publications, such as New York
Magazine, the Village Voice and Time Out New York (PA.605,
905).
As a consequence of the conversion, the patrons who
visit Show World have changed substantially. In fact, the
“majority of the patrons who came to Show World” used to be
male. However, after Show World eliminated its adult focus,
51
“attendance by both male and female patrons has increased
dramatically” (PA.621) (emphasis supplied).
POINT III
THE SUPREME COURT AND APPELLATE
DIVISION ASSESSED THE EVIDENCE
OBJECTIVELY AND DID NOT SUBSTITUTE
THEIR JUDGMENT FOR THAT OF THE
LEGISLATURE
The City claims that the Appellate Division and
Justice York substituted their judgment for that of the
Legislature and failed to assess the evidence objectively.
See, e.g., City Br. 4, 42.
However, that is simply not the case. At the end of
his thorough 22-page decision, Justice York, who presided
over this case for more than a decade, expressed -- in
Dicta -- his frustration by questioning “how an 18 year old
study of the negative effects of the 100% entities can be
applied to the current 60-40 entities without determining
the actual negative secondary effect of these institutions
today”? (PA.914).
52
Justice York’s incisive question is reasonable when
one considers that constitutionally protected bookstores
may be padlocked -- and bookstore owners risk being
prosecuted on criminal charges29 -- if the 2001 Amendments
are upheld.
After all, under the 2001 Amendments, a bookstore that
only devotes 10 percent of its stock and floor space to
adult DVDs will, nonetheless, constitute an “adult
bookstore” and, thus, rise to the level of a public
nuisance if it has a single private viewing booth in the
basement, or it features a greater selection of adult
titles than non-adult titles!30 As a consequence, the threat
to free expression and individual liberties, based upon
29 Z.R. § 11-61 provides, in pertinent part, that violators
of the Zoning Resolution “shall be guilty of a
misdemeanor.” Thus, criminal charges -- punishable by a
year in jail -- may be filed against store owners believed
to be in violation of the 2001 Amendments.
30 Under the 2001 Amendments, a store owner who devotes the
entire front of her bookstore to offering hundreds of
copies of the same top 10 selling non-adult DVDs will not
be able to have a selection of 15 adult DVDs in the back.
Instead, she will have to censor that selection of erotic
films to reduce the variety of titles down to a number
below 10. And, in the process, the public’s right to
expression will be chilled.
53
stale and unproven allegations of adverse secondary
effects, is real and immediate.
However, as clearly stated by Justice York, those
equitable “reflections form no part” of his finding that
the City failed to meet its burden and that “significant
and distinct differences” exist between the 60/40
bookstores and exclusively adult establishments (PA.913-14)
(emphasis supplied). And, as found by the Appellate
Division, Justice York’s conclusions on the merits, which
are to be accorded great deference, are fully supported by
the record (PA.1131).
The City now claims that the Appellate Division
substituted its judgment for that of the City Council (City
Br. at 4). The City reasons that in Appellate Division II
the Court “announced a four-factor checklist of its own
creation and found that other factors outweighed those
relied on by the City Council” (City Br. at 51).
However, the City never raised such a claim before
Justice York. Instead, on remand the City claimed that the
Appellate Division “provided a roadmap” for the trial court
to “use in assessing whether the evidence admitted during
the course of the trial establishes that the 60/40
54
bookstores covered by the 2001 amendments have a
predominant sexual focus.” See City’s Memorandum of Law
After Remand, dated August 30, 2011, at 11.
Rather than dispute the test enumerated in Appellate
Division II, the City embraced it. In fact, the City urged
that the burden set forth by the Appellate Division -- “a
consistent finding by [the] Supreme Court that most, though
not necessarily all, 60/40 establishments 1) exclude
minors, 2) have large signs advertising sexually explicit
adult materials and/or 3) emphasize the promotion of
materials ‘specified sexual activities’ or ‘specific
anatomical areas’ over non-adult materials will be more
than enough to justify the City’s 2001 ordinances on the
basis of the DCP study” -- is “consistent with the burden
set forth by the United States Supreme Court in First
Amendment cases that call for the review of legislative
enactments.” See City’s Memorandum of Law After Remand,
dated August 30, 2011, at 14 (emphasis supplied); PA.1126.
On remand, the trial judge, Appellate Division and the
parties all employed the “roadmap” established in Appellate
Division II. It is disingenuous for the City, which
previously embraced the Appellate Division’s guidelines, to
55
now claim that these factors are not relevant.
Significantly, the City never sought rehearing after
Appellate Division II was decided. To the contrary, the
City sought the benefits of that decision.
The City’s failure to contest this issue before
Justice York speaks volumes. It is immediately apparent
that the City only objected to the Appellate Division’s
“roadmap” when the trial court’s path using that roadmap
did not yield the result sought by the City -- padlocking
constitutionally protected bookstores based upon a 15-year-
old zoning amendment that has never been enforced.
Thus, the City waived this objection by not raising a
challenge or question in the lower court. We recognize that
this issue initially arose from the decision in Appellate
Division II. However, the City’s failure to contest or
dispute this interpretation at any point during the remand
from the Appellate Division deprived the trial court of the
ability to address the issues and to provide supplemental
findings that comport with the City’s approach to the
matter.
56
As such, the issue is not eligible for review in the
Court of Appeals, which can only review issues that were
preserved in the lower court. See Bingham v. NYC Transit
Auth., 99 N.Y.2d 355, 359 (2003) (“[u]nlike the Appellate
Division, we lack jurisdiction to review unpreserved issues
in the interest of justice”).
Furthermore, as developed below, the roadmap developed
in Appellate Division II was based upon the relevant
factors from the DCP Study. 84 A.D.3d at 60. Thus, the
factors identified by the Appellate Division and considered
by Justice York fully respected and took into account the
Legislature’s judgment.
The Trial Court and Appellate Division
Reviewed the Disputed Evidence, Which was
Presented at an Evidentiary Hearing, and
Found that the City Failed to Meet its Burden
The City claims that a “review of the undisputed
evidence shows that the City satisfied its burden of proof
as a matter of law” (City Br. at 4). Indeed, a constant
refrain throughout the City’s brief is that its evidence
was undisputed, or virtually undisputed (City Br. at 2, 42,
49, 61, 62). This is, of course, because the City is trying
57
to claim that this case merely presents legal issues that
can be resolved by the Court of Appeals.
However, there is no merit to the City’s claim that
its evidence as to the bookstores was undisputed. Indeed,
Justice York presided over a five-day evidentiary hearing
during which both sides presented extensive evidence
(PA.174-788). In addition to calling their own witnesses,
the Plaintiffs repeatedly assailed and called into doubt
the evidence presented by the City.
The Plaintiffs were able to refute the City’s claim
that 60/40 bookstores had a predominant, ongoing adult
focus by cross-examining the City’s own witnesses. For
instance, Building Inspector Robert Iulo was forced to
concede, on cross-examination, that he observed more
patrons in the non-adult portions of virtually every
establishment he visited. See, e.g., PA.459-62.
Similarly, the Plaintiffs established through cross-
examination that in many establishments about which the
City presented evidence, there was no appearance of the
word “Adult” or “XXX” on the outside of the premises. See,
e.g., PA.370, 378, 383, 455, 461. As more fully developed
above, the facts were disputed on a number of factors which
58
resulted in the trial judge issuing extensive findings of
fact (PA.894).
The City takes issue with the Appellate Division’s
findings that the City failed to meet its burden regarding
the essential nature of 60/40 bookstores. However, the
roadmap established by the Appellate Division and its
resulting analysis were directly informed by the Department
of City Planning Study from 1994, which was the basis for
the 1995 Resolution.
For instance, the City urges that removing explicit
“XXX” signage “does not in and of itself change the
establishment’s essential nature or focus” (City Br. at
56). However, the Appellate Division’s consideration of
garish and explicit signage directly resulted from the DCP
Study, which “placed special emphasis on the presence of
adult signs that were larger than those of nearby non-adult
businesses.” 84 A.D.3d at 61.
Indeed, the DCP Study itself identified adult
establishments exclusively based upon whether the business
“defines itself as such through exterior signs or other
advertisements” (PA.947). Thus, it was eminently reasonable
for the Appellate Division to use signage as one relevant
59
factor in determining whether 60/40 bookstores have a
predominant, ongoing focus on adult entertainment.
The City endeavors to inject other factors -- such as
whether bookstores offer marital aids or condoms -- into
the consideration of whether the City met its burden (City
Br. at 56). However, the presence of marital aids and
condoms was never a factor under the Department of City
Planning’s Study of adult businesses. See PA.935-1027.
To the contrary, New York City has never denominated
marital aids to be adult merchandise or adopted a policy
that the mere presence of therapeutic or marital aids could
subject a bookstore to closure (RA.72). Furthermore, the
fact that a bookstore sells condoms31 -- which are readily
distributed by the City in public high schools -- certainly
does not suggest that the store’s predominant focus is on
sexually explicit materials! As a consequence, Justice York
and the Appellate Division quite properly declined to
consider whether the presence of marital aids and condoms
creates a predominant adult focus.
31 See City Br. at 22, 25, 63, 69.
60
POINT IV
THE TRIAL COURT AND APPELLATE
DIVISION APPLIED THE PROPER LEGAL
STANDARD
There is no merit to the City’s claim that the trial
court and Appellate Division applied the wrong legal
standards. The City claims that 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 like substantial
evidence went out the window” (City Br. at 48-49).
However, Justice York applied the proper legal
standards. Indeed, he recognized that he must apply the
somewhat heightened intermediate scrutiny test, rather than
the mere rational basis test, which had already been
refuted by the evidence that the Plaintiffs previously
presented (PA.911). Justice York also correctly found that
the City must present more than mere substantial evidence,
which this Court used to judge the City’s initial burden
back in 2005. See PA.911. See also PA.151-61, citing Los
Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).
61
As a consequence, the Appellate Division underscored
that “[i]mposing a level of intermediate scrutiny requires
more conviction of the connection between legislative ends
and means than does the rational basis standard.” People
Theatres, 84 A.D.3d at 63 (emphasis supplied).
Since the information offered to the public by the
Bookstores is protected by the First Amendment to the
United States Constitution, as well as the Free Speech
Clause of the New York State Constitution32, slightly
heightened scrutiny is warranted of the City’s efforts to
shutter these businesses and silence this form of
expression. The pieties of our Free Speech Clause provide a
strong and reliable basis for insisting upon this level of
scrutiny. This is because free speech occupies the highest
of places in our hierarchy of constitutional values.
Nevertheless, under any standard, the City failed to
meet its burden. And, on remand, there were many new
factors -- other than just the City’s burden and standard
of review -- which informed the trial court’s decision.
32 See Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 555
(1986).
62
There is also no merit to the City’s claim that
Justice York “erroneously engaged in a de novo reweighing
of the evidence adduced by the parties at trial” (City Br.
at 49). There was nothing erroneous about Justice York re-
considering the trial evidence in light of the instructions
from the Appellate Division. Contrary to the City’s
contentions, in Appellate Division II the Court did not
merely remand the matter for more detailed factual
findings.
Instead, the Appellate Division reversed and vacated
Justice York’s prior decision. 84 A.D.3d at 66. The Court
then directed Justice York to “assess the City’s evidence
in light of” the “somewhat heightened standard.” 84 A.D.3d
at 63. The Appellate Division then suggested factors for
the trial court to consider as part of its roadmap for the
remand. The Appellate Division also instructed Justice York
to consider additional factors that he had not originally
considered, such as “any relevant evidence proffered by the
plaintiffs to show that there had been a significant change
in the character of 60/40 businesses.” 84 A.D.3d at 63.
Thus, there was absolutely nothing wrong with Justice York
engaging in a de novo reweighing of the evidence adduced by
the parties at trial.
63
To avoid unnecessary duplication, we join in the
arguments made by the Plaintiffs-Respondents in the related
matter of Ten’s Cabaret, et al. v. City of New York, Index
No. 121197/02 (Sup. Ct. N.Y. Co.), which involves the same
judgment and is scheduled to be argued jointly with this
case, to the extent that they are consistent with the
relief sought herein.
Conclusion
One of the oldest, deepest and most nearly conclusive
rights enjoyed by a free society is the belief that through
its system all forms of information are accessible to
everyone. Article I, § 8 guarantees to each of us that
right to freely choose books and films that are congenial
to our personal values and needs. Without unfettered access
to all forms of ideas and information we would not be the
fully developed and knowledgeable individuals that we are
today.
To uphold this unnecessary amendment, without
accepting the harrowing repercussions that threaten free
expression throughout one of the largest and most free
cities in the world, would be simply intolerable. As
properly found by the Appellate Division and Supreme Court,
64
the City fai l ed to meet i~s burden to sustain these radical
amendment s . And, as such, as recognized by t his Court back
in 2005, the Plaintiffs prevai l on their claim t hat t he
" 2001 Amendments are insufficiently narrow and theref ore
v iolate t heir free s peech rights" (PA . 1 62) .
If we are to keep fai th with New Yor k's l ong hist o r y
and t r adition of f ostering freedom o f expression, then the
decisions o f the Appellate Division and judgment o f the
Supreme Cour t should be upheld . For all these r easons , the
appeal shoul d be dismissed for lack of sub j ect matter
jurisdicti on . I n t he a lternat i ve, the j udgment shoul d be
affirmed and the Court should grant such other and further
relief as may be war ranted, incl uding costs .
Dated : New York, New York
November 1 , 2016
Erica T . Dubno, Esq .
Fahringer & Dubno
7 67 Third Avenue , Suite 3600
New York, New York 10017
erica . dubno@ f ahri ngerlaw . com
(212) 319-5351
(212) 319-6657 (fax)
65