To be Argued by:
EDWARDs. RUDOFSKY
TIME REQUESTED: 15 MINUTES
Qtnurt of Appeals
STATE OF NEW YORK
FOR THE PEOPLE THEATRES OF N.Y, INC.,
d/b/a FAIR THEATRE,
JGJ MERCHANDISE CORP., d/b/a VISHANS VIDEO
a/k/a MIXED EMOTIONS,
Plaintiff,
Plaintiff-Respondent,
-against-
THE CITY OF NEW YORK, HON. MICHAEL R. BLOOMBERG, as Mayor ofthe
City of New York, AMANDA M. BURDEN, as Director of City Planning, Department
ofCityPlanningofthe CityofNewYork, andPATRICIAJ. LANCASTER, as
Commissioner of Buildings, Department of Buildings of the City of New York,
Defendants-Appellants.
(Caption Continued on Inside Cover)
BRIEF FOR PLAINTIFFS-RESPONDENTS
TEN'S CABARET, INC. f/k/a STRINGFELLOW'S OF NEW YORK, LTD.,
AND PUSSYCAT LOUNGE, INC. d/b/a "PUSSYCAT LOUNGE"
EDWARDS. RunoFSKY, EsQ.
ZANE AND RUDOFSKY
601 West 26th Street, Suite 1315
New York, New York 10001
(212) 245-2222
(212) 541-5555 Facsimile
erudofsky@zrlex.com
Of Counsel
Dated: November 2, 2016
MARTIN P. MEHLER, EsQ.
MEHLER & BuscEMI
Attorney for Plaintiffs-Respondents
305 Broadway, Suite 1102
New York, New York 10007
(212) 962-4688
(212) 964-0643 Facsimile
mmehler@mehlerbuscemi.com
Docket No. APL- 2015-00273
TEN'S CABARET, INC. f/k/a STRINGFELLOW'S OF NEW YORK, LTD.,
PUSSYCAT LOUNGE, INC. d/b/a "PUSSYCAT LOUNGE", CHURCH STREET
CAFE, INC. d/b/a "BABY DOLU', and 62-20 QUEENS BLVD., INC., d/b/a "NICKELS",
Plaintiffs-Respondents,
-against-
THE CITY OF NEW YORK, HON. MICHAEL R. BLOOMBERG, as Mayor ofthe
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(s)
Table of Authorities IV
Preliminary Statement .. . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of Argument .. .. .. .. .. .... .. ... .... ...................... .. .. .................. .. ....... .......... ... 2
Counter-Statement of Facts .................................................................................. 3
A. The 1994 NYC Adult Entertainment Study . .. ..... ............. .. ........... ......... 3
B. The 1995 City Planning Commission Report......................................... 4
C. The 1995 Ordinance ............................................................................... 5
D. "Substantial Portion" is Quantified as "Forty Percent or More" ........... 6
E. Origin of the Misnomer "Sham Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . 7
F. The 200 1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
G. The Litigation Over the 2001 Amendments ........................................... 10
a. The Initial Summary Judgment Ruling, the 2005 Court of
Appeals Decision and The First Remand....................................... 10
b. The Second Appellate Division Remand and Findings of
Fact ................................................................................................. 12
c. The Most Recent Ruling in the Appellate Division and the
Bases Therefor ............................................................................... 16
TABLE OF CONTENTS (cont'd)
ARGUMENT
POINT I
THE CONSTITUTIONAL ISSUES HAVING BEEN
RESOLVED IN 2005, AND THE CASES HAVING BEEN
REMANDED FOR FACTUAL DETERMINATIONS
ONLY, THE COURT OF APPEALS LACKS
JURISDICTION OVER THE CITY'S APPEAL FROM THE
Page(s)
AFFIRMED FINDINGS OF FACT BELOW .......................................... 19
POINT II
THE AFFIRMED FINDINGS OF FACT SHOULD NOT
BE DISTURBED ON APPEAL. .............................................................. 24
POINT III
THE CITY FAILED TO MEET ITS STAGE III BURDEN
OF PROOF UNDER CITY OF ANGELES V. ALAMEDA
BOOKS, INC. ............................................................................................ 27
POINT IV
IN LIGHT OF THE U.S. SUPREME COURT'S RECENT
DECISION IN REED v. TOWN OF GILBERT, THIS
COURT'S EVALUATION OF THE TRIAL COURT'S
DECISION UNDER THE NEW YORK CONSTITUTION
SHOULD INCORPORATE NOT ONLY THE BURDEN
SHIFTING INTERMEDIATE SCRUTINY TEST SET
FORTH IN THE PLURALITY OPINION IN ALAMEDA
BOOKS BUT ALSO THE PROPORTIONALITY TEST
ARTICULATED BY JUSTICE KENNEDY IN THAT
CASE......................................................................................................... 35
A. Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5
11
TABLE OF CONTENTS (cont'd)
B. Reed's changed definition of a "content-based speech
regulation compels the conclusion that the 200 1
Amendments are "content based" and strongly suggest
adoption of Justice Kennedy's proportionality test under
Page(s)
the New York Constitution ......................................................... 36
POINTY
PLAINTIFFS PRESERVED THEIR RIGHT TO CHALLENGE
THE 2001 AMENDMENTS AS APPLIED TO THEM. ......................... 49
Conclusion ............................................................................................................ 55
111
TABLE OF AUTHORITIES
Cases Page(s)
Alameda Books, Inc. v. City of Los Angeles,
631 F.3d 1031 (9th Cir. 2011) .................................................................................. passim
Annex Books, Inc., v. City of Indianapolis,
581 F.3d 460 (7th Cir. 2009) ........................................................................................... 39
Bellanca v. New York State Liquor Authority,
54 N.Y.2d 228 (N.Y. 1981) ....................................................................................... 42, 43
Brooke S.B. v. Elizabeth A. C. C.,
_ N.Y.3d _, 2016 WL 4507780 (2016 .................................................................... 43
Center For Fair Public Policy v. Maricopa County,
336 F .3d 1153 (9th Cir. 2003) .......................................................................................... 39
City of Los Angeles v. Alameda Books, Inc.,
535 U.S. 425 (2002) ................................................................................................. passim
City of N.Y. v. Dezer Properties, Inc.,
259 A.D.2d 116 (1st Dept. 1999) ................................................................................... 8, 9
City of N.Y. v. Dezer Properties, Inc.,
95 N.Y.2d 771 (1999) ................................................................................................... 8, 9
City of N.Y. v. Les Hommes,
258 A.D.2d 284 (1st Dept. 1999) ................................................................................... 8, 9
City ofN. Y. v. Les Hommes,
94 N.Y.2d 267 (1999) ................................................................................................... 8, 9
CityofN.Y. v. Show World,
178 Misc.2d 812 (Sup. Ct. N.Y. Co. 1998) .................................................................. 6, 8
City ofN.Y. v. Stringfellow's ofN.Y., Ltd.,
96 N.Y.2d 51 (2001) ......................................................................................................... 6
City of Renton v. Playtime Theatres, Inc.,
475 u.s. 41 (1986) ........................................................................................ 45, 46, 47, 48
IV
TABLE OF AUTHORITIES (cont'd.)
Cases Page(s)
City of New Rochelle v. Stevens,
300 N.Y. 754 (1950) ...................................................................................................... 19
Claridge Gardens, Inc. v. Menotti,
160 A.D .2d 544 (1st Dept. 1990) .................................................................................... 24
Diocese of Rochester v. Planning Bd. of Brighton,
1 N.Y.2d 508 (1956) ....................................................................................................... 41
DJL Rest. Corp. v. City of NY.,
96 N.Y.2d 91 (2001) ......................................................................................................... 6
For The People Theaters of NY., Inc. v. City of NY.,
6 N.Y.3d 63 (2005) ................................................................................................. passim
For The People Theaters of NY. Inc. v. City of NY.,
84 A.D .3d 48 (1st Dept. 20 11) ................................................................................. passim
For The People Theaters ofN Y. Inc. v. City ofN Y.,
38 Misc.3d 663 (Sup. Ct., N.Y. Co. 2012) ............................................................... passim
For The People Theatres of NY. Inc. v. City of NY.,
131 A.D.3d 279 (1 51 Dept. 2015) ............................................................................. passim
For The People Theatres,
27 Misc.3d 1079 (Sup. Ct. N.Y. Co. 2010) .................................................................... 12
For The People Theatres ofNY. v. City ofNY.,
20 A.D.3d 1 (1st Dept. 2005) .......................................................................................... 11
Gammoh v. City of Anaheim,
73 Cal.App.4th 186 ( 1999) ............................................................................................. 51
Hickerson v. City of NY.,
997 F.Supp. 418 (S.D.N.Y. 1998) ..................................................................................... 6
Independence News, Inc. v. City of Charlotte,
568 F.3d 148 (4th Cir. 2009) ............................................................................... 51, 52, 53
v
TABLE OF AUTHORITIES (cont'd.)
Cases Page(s)
K2 Inv. Group, LLC v. American Guar. & Liab. Ins. Co.,
22 N.Y.3d 578 (2014) ..................................................................................................... 42
Lawrence v. Texas,
539 U.S. 538 (2003) ........................................................................................................ 43
Marks v. United States,
430 u.s. 425 (2002) ........................................................................................................ 39
New Albany DVD, LLC v. City of New Albany,
581 F.3d 556 (7th Cir. 2009) ............................................................................................ 39
New York v. Ferber,
458 U.S. 747 (1982) ........................................................................................................ 54
Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, Florida,
337 F.3d 1251 (11th Cir.) ............................................................................................... 28
People ex rei. Arcara v. Cloud Books, Inc.,
68 N.Y.2d 553 (1992) ..................................................................................................... 43
People v. Patterson,
39 N.Y.3d 288 (1976) .................................................................................................... 43
People v McGowen,
42 N.Y.2d 905 (1977) .................................................................................................... 43
People v. Rudolph,
21 N.Y.3d 497 (2013) ..................................................................................................... 42
Reed v. Town of Gilbert,
_U.S._, 135 S. Ct. 2218 (2015) ........................................................................ passim
Reed v. Town of Gilbert,
587 F.3d 966 (9th Cir. 2009) ............................................................................................ 44
Six Star Holdings, LLC v. City of Milwaukee,
821 F.3d 795 (7th Cir. 2016) ............................................................................................ 50
Vl
TABLE OF AUTHORITIES (cont'd.)
Cases Page(s)
Stringfellow's ofN. Y, Ltd. v. City ofN. Y,
91 N.Y.2d 382 (1998) ............................................................................................... 5-6, 7
Ten's Cabaret, Inc. v. City of N. Y,
1 Misc.3d 399 (Sup. Ct. N.Y. Co. 2003) .................................................................. passim
Thoreson v. Penthouse Intern., Ltd.,
80 N.Y.2d 490 (1992) ..................................................................................................... 24
US. v. Playboy Entertainment Group, Inc.,
529 u.s. 803 (2000) ........................................................................................................ 40
Ward v. Rock Against Racism,
491 u.s. 781 (1989) ........................................................................................................ 52
Consitutional Provisions
U.S. Constitution, Amend. 1 ..................................................................................... passim
N.Y. Constitution, Art. 1, § 8 ....................................................................................... 2, 27
Statutes
New York Civil Practice Law and Rules
CPLR 4213 ........................................................................................................................ 21
CPLR 5601(a) ................................................................................................................... 19
CPLR 5601(b)(1) ............................................................................................................... 19
vii
TABLE OF AUTHORITIES (cont'd.)
Page(s)
New York City Zoning Resolution
1995 Amendments ..................................................................................................... passim
2001 Amendments ............................................................................................. ........ passim
Other Authorities
Karger, The Powers of the NY Court of Appeals,
3d Ed., Ch. 6, § 33(b) (1997) .......................................................................................... 23
Newman, New York Appellate Practice, § 11.02 [3]
(Matthew Bender, ed., 2004) ........................................................................................... 19
viii
Preliminary Statement
This brief is submitted on behalf of plaintiffs-respondents Ten's Cabaret,
Inc. f/k/a Stringfellow's of New York, Ltd. and Pussycat Lounge, Inc. d/b/a
"Pussycat Lounge" (hereafter, collectively, "plaintiffs"), in response to the appeal
by defendants-appellants, The City of New York, the Mayor and the Buildings
Commissioner (hereafter, "City") from the Order of the Appellate Division, First
Department, dated July 21, 2015, 1 affirming the judgment of Supreme Court, New
York County (York, J.), entered October 10, 2012,2 holding the 2001 Amendments
to the New York City Zoning Resolution unconstitutional under the Free
Expression Clause of the New York Constitution, Article I, Section 8.
For the reasons set forth in this brief, as well as in the opinions of the trial
court and the Appellate Division, and in the companion brief submitted by counsel
for plaintiffs For The People Theatres of N.Y. Inc. d/b/a Fair Theatre, and JGJ
Merchandise Corp. d/b/a Vishan's Video a/k/a Mixed Emotions, the Order of the
Appellate Division should be affirmed.
Reported at 131 A.D.3d 279.
2 Reported at 38 Misc.3d 663.
Summary of Argument
The facial constitutional question having been settled in For The People
Theaters of N.Y. v. City of N.Y., 6 N.Y.3d 63 (2005), and the actions having been
remanded for the determination of factual issues only, the City is seeking review of
affirmed findings of fact beyond the jurisdiction of the Court of Appeals.
If the Court has jurisdiction, the judgment appealed from should be affirmed.
The findings of fact, affirmed by the Appellate Division, are clearly supported by
the evidence of record and plaintiffs were entitled to judgment in their favor in
accordance with the governing constitutional principles enunciated by the majority
opinion in For The People Theaters, supra, adopting, for New York Constitutional
purposes, the plurality analysis of Justice O'Connor in City of Los Angeles v.
Alameda Books, Inc., 535 U.S. 425 (2002).
Alternatively, in light of the increased protection of speech announced in the
recent decision by the Supreme Court in Reed v. Town of Gilbert,_ U.S._, 135
S. Ct. 2218 (2015), the New York constitutional standard should incorporate the
controlling "how speech will fare" proportionality test of the Concurring Opinion
of Justice Kennedy in Alameda Books, supra.
Finally, the "as applied" claims alleged by plaintiffs have not been
adjudicated and, if necessary, the case should be remanded for adjudication of
those challenges.
2
Counter-Statement of the Case
A. The 1994 NYC Adult Entertainment Study
In 1994, the City of New York faced an urban-planning challenge common
to many large cities in America: the concentration of a growing number of
sexually-oriented businesses. These "adult establishments" consisted of book and
video stores, theaters, bars and cabarets. At the high point, there were
approximately 177 of these businesses.
Faced with this problem, the Department of City Planning ("DCP")
undertook an "Adult Entertainment Study" ("1994 Study" also known as the "DCP
Study") [RA1765]3 in which it studied the effects these businesses had on the
surrounding neighborhoods. The methodology of the 1994 Study was to "survey[ ]
street and signage conditions, local organizations and businesses, real estate
brokers, and police and sanitation officers, and analyze[ ] criminal complaint and
property assessment data for six study areas throughout the city to obtain
information about the impacts of adult entertainment establishments." [RA1765 et
3 "RA" refers to the "Record on Appeal With Additional Papers to the Court of
Appeals" ("Record on Appeal").
4 It was publicly acknowledged by the DCP at the meeting between its representatives
and various members of the "adult entertainment" industry [RA1742-43] that the
interior of the stores, and the products and entertainment featured, were not studied.
This undisputed fact, seemingly inconsequential at the outset, becomes relevant as the
case evolves.
3
In pertinent part, the 1994 Study concluded that in an intense urban
environment such as New York City it was impossible to establish the secondary
effects caused by individual businesses, as distinguished from those caused by
other potential sources such as subway stations. "This reflects the fact that, in a
city as dense and diverse as New York, it is difficult to isolate specific impacts
attributable to any particular land use. Other cities that have conducted similar
studies have acknowledged the same difficulty." [RA1781]
B. The 1995 City Planning Commission Report
Based on the 1994 Study, the New York City Planning Commission
("CPC") issued a report ("1995 Report") which reiterated the findings and
conclusions of the 1994 Study with one significant difference for present purposes:
At the time of the 1994 Study and 1995 Report, none of the 177 known "adult
establishments" identified in the list included in the 1994 Report devoted less than
all (i.e., less than 100%) of their customer accessible floor space to adult uses.
Nevertheless, the 1995 Report included, in passing, the "general guideline" that
"an establishment would need to have at least 40 percent of its accessible floor
area used for adult purposes to make it similar to the establishments studied in the
DCP Study and thus be an 'adult establishment' or 'adult bookstore. "'5 (Emphasis
5 The 1995 Report was not introduced into evidence and is not included in the City's
Record on Appeal. Copies are, however, on file with this Court. See, For The People
Theaters ofN.Y, Inc. v. City ofN.Y, 6 N.Y.3d 63 (2005) at For The People Theaters
4
added.) This passing comment by the CPC is the basis for what has come to be
known as the "60/40 Rule."6
C. The 1995 Ordinance
Based on the 1994 Study and 1995 Report, the New York City Council
adopted the 1995 Adult Use Amendments to the New York City Zoning
Resolution (the "1995 Ordinance").7 Most pertinent to the present appeal, in
defining an "adult establishment" subject to regulation, the 1995 Ordinance
provided that, for the zoning restrictions to apply, a "substantial portion" of the
premises had to be devoted to either (a) "specified sexual activities" or (b) the
exposure of "specified anatomical areas," as defined therein. The term "substantial
portion" was not (then) defined.
The 1995 Ordinance withstood a variety of challenges under both the State
and Federal constitutions [see, e.g., Stringfellow's ofN. Y., Ltd. v. City ofN Y., 91
Record on Appeal, p. 588, and Ten's Record on Appeal, p. 977. A copy is also
available on line; see Appellants' Brief ("App.Br.") at 6, n. 5.
6 Since the DCP made it clear at the time that it did not study the interior of the "adult"
businesses on its list, but merely their possible secondary effects, and since this
statement nowhere appears in the 1994 Study, the source and reason for it have been
the subject of much speculation; specifically, that it was inserted in the CPC Report
on behalf of Blockbuster® and other video rental stores, which featured R-rated
videos in <40% of their store space.
7 The 2005 decision by the Court of Appeals refers, respectively, to the "1995
Ordinance" and the "2001 Amendments". 6 N.Y.3d 63 (2005). Plaintiffs accordingly
use those terms in this brief.
5
N.Y.2d 382 (1998); Hickerson v. City of N.Y., 997 F.Supp. 418 (S.D.N.Y.), aff'd
146 F.3d 99 (2nd Cir.) (1998), cert. den., 525 U.S. 1067 (1999) (hereafter "the
federal litigation"); City of N.Y. v. Stringfellow's of N.Y., Ltd., 96 N.Y.2d 51
(2001); and DJL Rest. Corp. v. City of N.Y., 96 N.Y.2d 91 (2001)].
D. "Substantial Portion" is Quantified as "Forty Percent or More"
During the federal litigation, the City, in 1998, in response to a void-for-
vagueness challenge to the "substantial portion" test included in the definition of
"adult establishment," represented in written filings with the United States District
Court that, as used in the 1995 Ordinance, "substantial portion" should be
construed to mean "forty percent or more," and that this was an "authoritative"
construction of the ordinance binding on the City.8 This was the same "at least 40
percent of its accessible floor space" referred to, ipse dixit, in the 1995 Report.
Ironically (in light of subsequent events), one of the City's arguments for the
facial constitutionality of the 1995 Ordinance was that the "substantial portion" test
would help assure a sufficient number of available alternative sites for
communication of the protected expression to satisfy the First Amendment (i.e.,
8 In a published opinion, Supreme Court subsequently confirmed the position the City
had taken in the federal litigation. See City of NY. v. Show World, 178 Misc.2d 812,
819 (Sup. Ct. N.Y. Co. 1998), aff'd sub. nom. City of NY. v. Les Hommes, 258
A.D.2d 284 (1st Dept.), rev'd on oth. grnds, 94 N.Y.2d 267 (1999). The
representation in Federal Court was preceded by the promulgation of NYC DOB
Operations and Policy Notice (OPPN) 4/98, instructing Building Inspectors that
"substantial portion" was to be construed as meaning 40% or more.
6
that the 60/40's would be able to continue in business free of the restrictions being
placed on the 1 00% establishments). See Brief for Respondents, Stringfellow's of
N.Y., Ltd. v. City of N.Y., supra, 91 N.Y.2d 382, at p. 59.9
E. Origin of the Misnomer "Sham Compliance"
Although many adult businesses simply closed m response to the 1995
Ordinance (thus reducing the complained-of concentration), some did not.
Beginning in 1998, the City brought a series of Nuisance Abatement actions to
enforce the 1995 Ordinance. While some were successful, the lAS Courts found
in many instances that the involved premises had been reconfigured (some at great
expense) to comply with the spatial "60/40" fonnula of the 1995 Ordinance, i.e.,
less than 40% of their customer-accessible floor space was devoted to "adult uses,"
and they thus did not come within the statutory definition of"adult establishment."
9 Specifically, in its 1997 brief, the City told this Court that:
"[t]he Amendments thus not only permit all of the City's existing adult
establishments to continue to operate in New York City, but also provide for a
significant expansion of the City's adult use market. Significantly, moreover, as
the Supreme Court recognized (A49), in looking at reasonable access to adult uses,
the following factors must be considered: 1) very few currently operating
establishments are as large as the 10,000 square foot useable floor area size
permitted; and 2) the Amendments do not restrict establishments which sell or
display limited amounts of adult material, often found at the numerous general
purpose book and video stores and newsstands throughout the City, a significant
factor cited in Islip. 73 N.Y.2d at 558. Plaintiffs fail to acknowledge these
significant factors." [Emphasis added.]
7
While this was literal and complete compliance with "60/40" formula, it was
compliance which the City (despite its representations that such businesses would
be allowed, and would provide an "expansion of the adult use market," see n. 9,
supra ) apparently had never anticipated and which was politically embarrassing to
it. Accordingly, in various enforcement proceedings the City disingenuously
mislabeled (and continues to date to mislabel) spatial reconfiguration to comply
with the "60/40" formula as "sham compliance" - - even though there is nothing
"sham" about it and the record before this Court, on this appeal, amply
demonstrates the nature, extent and cost of the efforts to comply.
Supreme Court (Crane, J.) rejected the City's "sham compliance" theory
[City of N.Y. v. Show World, 178 Misc.2d 812 (Sup. Ct. N.Y.Co. 1998)], but the
Appellate Division, First Department, disagreed and embraced the concept [City of
N.Y. v. Les Hommes, 258 A.D.2d 284 (1st Dept. 1999); see, also, City of N.Y. v.
Dezer Properties, Inc., 259 A.D.2d 116 (1st Dept. 1999)]. However, on review,
this Court unanimously reversed the Appellate Division [City of N.Y. v. Les
Hommes, 94 N.Y.2d 267 (1999); see, also, City of N.Y. v. Dezer Properties, Inc.,
95 N.Y.2d 771 (1999)] and unequivocally held that spatial 60-40 compliance was
compliance (i.e., not "sham compliance"):
In the end, we must enforce the City's administrative guidelines as
written. Either the stock is accessible or available, or it is not; either
the appropriate amount of square footage is dedicated to nonadult
uses, or it is not. Questions about whether the owner of Les Hommes
8
had a good-faith desire to sell nonadult products, whether the
"essential nature" of Les Hommes is adult or nonadult, or whether the
volume of nonadult stock is stable or profitable are not part of the
inquiry here, where we are only called upon to determine whether
items are accessible or available as stock. We cannot rewrite the City's
guidelines to include these additional considerations. [94 N.Y.2d at
273]
Similarly, in Dezer Properties, supra, this Court rejected the contention by
the City "that any adult activity in a club in and of itself qualifies the entire club as
a regulable 'adult establishment"' (emphasis in original), holding this argument
barred by the City's concession that there was spatial compliance. ("The City,
however, conceded before Supreme Court that Dezer allocated less than a
'substantial portion' of the club's floor area to adult activities.")
F. The 2001 Amendments
Undeterred by the Les Hommes and Dezer decisions, and notwithstanding
that, by 2001, the 1995 Ordinance had succeeding in reducing the number of "adult
establishments" from a high of 177 to approximately 136 (of which only 35 were
"100%" locations and the remainder were 60/40 business and therefore, by
definition, not adult establishments), 10 the City then adopted the further
10 This data was reflected in the 2001 CPC Report, which was also not introduced into
evidence at bar and is not included in the City's Record on Appeal. However, it is
included in the 2005 Record. See, For The People Theaters of NY, Inc. v. City of
NY, 6 N.Y.3d 63 (2005), at For The People Theaters Record on Appeal, p. 346, and
Ten's Record on Appeal, p. 793. This report is also available online; see App.Br. at 6,
n. 5.
9
amendments to the Zoning Resolution challenged in this action (the "2001
Amendments") which, insofar as they affected live dancing establishments,
completely eliminated the "substantial portion" (i.e., 60/40) element from the
definition of an "adult eating and drinking establishment," thus making all clubs
with any adult materials or entertainment subject to the zoning restrictions imposed
by the 1995 Ordinance, regardless of the intensity of the use, i.e., how little space
was actually devoted to nude dancing. They did this even though the secondary
effects, if any, of the 60/40 businesses had never been studied in New York or
anywhere else, and notwithstanding that this legislation eliminated all the very
businesses which the City represented would expand the adult market, i.e., supply
the necessary "alternative avenues of communication" required for the 1995
Ordinance to pass constitutional muster under the First Amendment.
G. The Litigation Over the 2001 Amendments
The 2001 Amendments were challenged in a multiplicity of lawsuits,
primarily focused on the lack of evidence of adverse secondary effects attributable
to "60/40" businesses, including the glaring failure of the City to conduct a new
secondary effects study.
a. The Initial Summary Judgment Ruling, the 2005 Court of
Appeals Decision and The First Remand
Supreme Court (York, J.) then granted summary judgment, declaring the
2001 Amendments unconstitutional on their face. Ten's Cabaret, Inc. v. City of
10
N.Y., 1 Misc.3d 399 (Sup. Ct. N.Y. Co. 2003). The Appellate Division, continuing
to cling to the discredited theory of "sham compliance," reversed sub nom. For The
People Theatres of N.Y. v. City of N.Y., 20 A.D.3d 1 (1st Dept. 2005). On appeal,
three judges of this Court (Kaye, Ch.J, and G.B. Smith and Ciparick, JJ) voted to
reverse the Appellate Division and declare the 2001 Amendments unconstitutional
on their face as a matter of law. 6 N.Y.3d 63, at 84 (Kaye, Ch. J., dissenting).
However, the majority (Read, Rosenblatt, Graffeo and R.S. Smith, JJ.) held that
summary judgment had been erroneously awarded to the City and that a further
evidentiary hearing was required under Los Angeles v. Alameda Books, Inc., 535
U.S. 425 (2002) (hereinafter, variously, "Alameda" or "Alameda Books") ,
something which plaintiffs will hereafter refer to as a "Stage III" hearing since it is
the third leg of a three part sequence of evidentiary submissions endorsed by five
Justices in Alameda as it was articulated by Justice O'Connor's four Justice
plurality opinion in that case.
The Court of Appeals majority, in an opinion by Judge Read, accepted the
proposition that the City was not required to undertake a new secondary effects
study if it felt it had sufficient evidence to meet its burden at trial, but clarified that
the City had the burden at the Stage III hearing to show that the 60/40's were not
"transformed in character" from the 1 00% uses studied in 1994 and in other
jurisdictions, and continue "to display a predominant on-going focus on sexually
11
explicit material or activities, and that their essential nature has not changed."
(Emphasis added.) (The Court did not specify how many of the current businesses
must be shown to fit that category in order to sustain the 2001 Amendments.)
On remand, after extensive document production and deposition practice,
two evidentiary hearings were conducted-- one each in For The People Theatres
(involving the bookstores and one movie theater) and in Ten's (involving only live
entertainment establishments). Supreme Court (York, J.) then issued a reported
decision in For The People Theatres, 27 Misc.3d 1079 (Sup. Ct. N.Y. Co. 2010),
and an unreported summary decision in Ten 's (RA 4 ), devoid of findings of fact,
holding the 2001 Amendments constitutional on their face in regard to adult book
and video stores, as well as adult cabarets, but unconstitutional as to adult movie
theaters.
b. The Second Appellate Division Remand and Findings of Fact
On appeal, the Appellate Division, First Department, unanimously reversed
the declaration of constitutionality in both cases, on the law, and remanded the
actions to Supreme Court for findings of fact and re-determination. For The
People Theaters of N.Y. Inc. v. City of N.Y., 84 A.D.3d 48 (1st Dept. 2011 ).
On remand, the City declined to submit any additional evidence in support
of its theory of the case. All parties then submitted proposed Findings of Fact and
Conclusions of Law (RA1687 et seq.; RA1798 et seq.), and Supreme Court (York,
12
J.) then issued an extremely detailed, thoughtful opmwn, making one hundred
(100) Findings of Fact (some including multiple sub-findings), 11 and concluding
that the 2001 Amendments are unconstitutional on their face. For The People
Theaters of N.Y. Inc. v. City of N.Y., supra, 38 Misc.3d 663, at 673-75 (2012)
(emphasis added):
The Appellate Division remanded to this court for a more
extensive opinion, asking for findings of fact from which its
conclusions were drawn and an in-depth comparison of the
characteristics of the 1994 adult institutions compared with the current
60/40 entities (84 AD 3d 48 [20 11 ]). In writing the decision on the
first remand from the Court of Appeals, too much emphasis was
placed on the easy burden this court understood the Court of Appeals
had placed on the City. Moreover, the rational basis and substantial
evidence tests were not appropriate means to determine the
constitutional validity of the legislation in question.
In its criticism of the opinion, the Appellate Division stated that the
test was not one of rational basis and substantial evidence, but the
higher test of intermediate scrutiny. Reviewing all of the Appellate
Division directions caused this court to look more deeply into the
factual findings and the standards by which to make its judgment. The
burden on the City, then, is greater than previously understood. In
doing that, this court could no longer justify its previous
determination. Accordingly, the court decides that for the reasons
11 Supreme Court's opinion consists of Findings 1 - 4 (including multiple sub-findings)
concerning the DCP Study, followed by Findings 1 - 93. (There are two (2) findings
numbered "52", two (2) numbered "53" and two (2) numbered "55".) This second
section includes findings concerning nine (9) 60/40 eating and drinking
establishments and eleven (11) book and video stores, as well as credibility findings
and findings concerning the reduction in signage as a result of the 1995 Ordinance.
Of particular note is Finding 80: "The record contains virtually no information to
assist this court in determining the essential characteristics of these 60/40
establishments as compared to the essential characteristics of the 100% adult
establishments."
13
discussed infra, the 2001 amendments are unconstitutional and must
be vacated.
There is no need to deal with the applied challenge as the
ordinance is being declared unconstitutional. [121
The DCP Study of 1994 was instituted because of the increased
concern generated by an awareness of an increase in crime associated
with the concentration in neighborhoods of what was then 100% adult
establishments. Also recognized was a deterioration of the
neighborhoods in which these businesses were clustered and a
recognition by the inhabitants of the decline in the quality of life.
There followed the 1995 amendments to the zoning law, establishing
that to remain, those entities had to reorganize themselves so that a
substantial portion of their inventory or area available to customers
had to be nonadult. This morphed into the City's guideline
establishing the 60/40 rule which meant that less than 40% of the
entity's space or inventory had to be devoted to adult activities.
Although 18 years have passed since that study and significant
changes have occurred since the DCP Study, both the Court of
Appeals in its remand and the Appellate Division remand after that,
have directed this court not to consider any negative secondary effects
of these changes. The ultimate question they have laid out, is whether
the nature of these entities have so changed that they no longer
resemble their 100% forebears. To do this, we must consider whether
their nonadult features or characteristics predominate over their adult
features.
One of the characteristics pointed out by the DCP Study was the
concentration of adult businesses in particular neighborhoods. Now,
due to the provisions of the 1995 ordinance, these entities are not able
to exist in residential and many manufacturing and commercial
neighborhoods, but where they are allowed to exist only one such
entity is permitted in each zoning district, and must be at least 500 feet
from each other and any school or house of worship. Thus, there are
no more such concentrations. In contrast to the 1994 study, entities
12 Since the "as applied" challenge was remanded by the Appellate Division (84 A.D.3d
at 66), but expressly not determined, it remains preserved. See n. 13 and Point V
infra.
14
where the entire business contained 100% adult entities, all of the
current entities studied, contain separate adult and nonadult sections
with more product or space devoted to nonadult features. The
nonadult 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. In many of the entities, patrons in the nonadult section
are unable to see what is going on in the adult section, a contrast to the
100% entities in the 1994 study. In most businesses, there are
legitimate activities going on in the nonadult sections, which can be a
restaurant, or a sports bar, or entertainment in the form of theater or
celebrity entertainment, another feature distinct from its forbears. The
exterior and interior signage has changed. There are almost no garish
neon lighted signs, no hard-core sexual images or language on them
and the nonadult signage is as prominent as the adult signage,
certainly a significant change from the 1994 situation.
Finally, these entities are advertised in conventional newspapers,
magazines, on TV and the Internet and on the entities' own websites.
This decision certainly does not prevent the defendant from
removing sham entities. The City need only change its guidelines to
tum the 60/40 test into a rebuttable presumption. Then, even if less
than 40% of the entity is devoted to adult purposes, the characteristics
discussed can establish sham compliance. This court finds significant
and distinct differences between the 1994 adult entities and 60/40
entities, so that the current establishments no longer resemble their
1994 predecessors. Given their current arrangements and secondary
characteristics, these entities no longer operate in an atmosphere
placing more dominance of sexual matters over nonsexual ones.
Accordingly, there is no need for the 2001 amendments. On their face,
therefore, they are a violation of free speech provisions of the US and
State Constitutions.
In self-admitted dicta which it stated formed no part of the basis for its
ruling, Supreme Court added:
[T]his court cannot understand how an 18-year-old study of the
negative effects of the 100% entities can be applied to the current
15
60/40 entitles without determining the actual negative secondary
effect of these institutions today. It was primarily the increased crime
rates that spawned the 1994 DCP Study and led to the legislative
changes in 1995 that this record shows was successful. New York
State has a storied reputation for protecting freedom of speech. Its
courts have consistently held that the content of speech cannot be
regulated (People v Mobil Oil Corp., 48 NY2d 192 [ 1979]). What can
be regulated are the negative secondary effects of the legislation in
issue by virtue of the exercise of the police powers (Stringfellow's of
N.Y. v City of New York, 241 AD2d 360 [1st Dept 1997]). Here, no
investigation was conducted by the defendants. Instead, there was a
fictionalized reliance on the 1994 study. Without an actual study, the
2001 legislation should have been struck down, as urged by the three-
judge Court of Appeals' minority opinion in For the People (at 6
NY3d 88).
* * *
Isn't, without a finding of negative secondary effects generated by
the current 60/40 entities, what the City is really regulating-the
content of expression-clearly a violation of the plaintiffs' rights to
freedom of speech (People v Mobil Oil Corp., 48 NY2d 192 [ 1979])?
On appeal, the Appellate Division, First Department, affirmed this decision
by a vote of3-2. For The People Theaters of N.Y. Inc. v. City of N.Y., supra, 131
A.D.3d 279.
c. The Most Recent Ruling in the Appellate Division and the Bases
Therefor.
In its most recent opinion, the Appellate Division majority, after reviewing
the legal and procedural history, found and held that "[t]he 'very little evidence'
standard (6 NY3d at 80 ... ) is not the standard applicable to the City at the trial
level, which is what we are reviewing here (see Alameda, 535 US at 451 [Kennedy
16
J., concurring])" (131 A.D.3d at 289, emphasis added), and that the City had failed
to meet its Stage III burden of proof, since "there was little to no evidence
presented as to the nature of the outward [exterior] signage ... , [and] the difficulty
in accessing the nonadult material section of the club[s]," and "[t]here was also no
evidence presented as to the nature ofthe pre-1994 or 100% clubs. [131 A.D.3d at
293]
The majority continued:
The little evidence we do have as to the clubs' signage shows that
some clubs refer to themselves as "gentlemen's clubs" or advertise
"adult entertainment," "live beautiful models" or "sports cabaret" on
their outside awnings. There is no evidence as to the size of these
signs or how they compare to signs advertising nonadult activity or
those of surrounding nonadult businesses. This is not enough to show
that the signage indicates a predominant sexual focus in most of the
clubs.
With regard to layout or difficulty in accessing the nonadult
section, the City concedes that some of the clubs have layouts
different from those in the 1 00% clubs, although there is also evidence
that some of the clubs have the adult sections on the ground floor and
the nonadult sections on the second floor, while other clubs have the
nonadult sections operating next door to the adult sections. There is,
however, no evidence in the record that these configurations make the
nonadult sections difficult to access.
As with the book stores and video stores, satisfaction of one of the
factors is not sufficient to meet the City's burden. The City assumes
that because the 60/40 clubs regularly feature topless dancing, this
automatically means that they retain a predominant sexual focus.
However, there is nothing in the prior related decisions that mandates
that conclusion. Thus, this Court finds that the City has not met its
burden with respect to the adult eating and drinking establishments.
17
[I d.]
The dissent did not disagree with the majority on the controlling legal
principles, but rather on the factual findings, concluding that the City had carried
its burden of proof: "The record fairly supports the City's contention that the adult
establishments reviewed emphasized sexual activities or materials over nonadult
materials. *** In sum, the City met its burden of establishing that the book and
video stores are not 'so transformed in character that they no longer resemble the
kinds of adult uses found, both in the 1994 DCP Study and in studies and court
decisions around the country to create negative secondary effects' .... " (Citation
omitted.) 13
This (and the companion appeal) ensued.
13 Because they would have found the 2001 Amendments facially constitutional, the
dissenters went on to address and reject the "as applied" challenge. However, since
Supreme Court expressly noted that it was not determining the "as applied" challenge,
it remains preserved but unadjudicated. Seen. 12 and Point V, infra.
18
Argument
POINT I
THE CONSTITUTIONAL ISSUES HAVING BEEN
RESOLVED IN 2005, AND THE CASES HAVING BEEN
REMANDED FOR FACTUAL DETERMINATIONS ONLY,
THE COURT OF APPEALS LACKS JURISDICTION OVER
THE CITY'S APPEAL FROM THE AFFIRMED FINDINGS OF
FACT BELOW
The City has invoked the jurisdiction of this Court pursuant to CPLR
5601(a) (two-judge dissent in the Appellate Division) and CPLR 5601(b)(l)
(constitutional appeal). However, in the circumstances of this case, the Court of
Appeals does not have subject matter jurisdiction on either basis.
The constitutional question of law - - may the City constitutionally regulate
so-called "60/40" adult entertainment venues (where less than 40% of the floor
space is allocated to regularly featuring adult entertainment - - was answered in the
affirmative on the prior appeal, For The People Theatres of N.Y. Inc. v. City of
N.Y., 6 N.Y.3d 63 (2005), over a dissent holding that the proposed regulation was
facially unconstitutional as a matter of law). 14 On that appeal, the Court of
14 This Court has long recognized its jurisdiction over constitutional questions cannot be
manufactured by re-litigating constitutional issues that were already determined by
this Court-- in this case, a decade ago. See Newman, New York Appellate Practice, §
11.02 [3] (Matthew Bender, ed., 2004), holding that "[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].
19
Appeals majority, applying its construction of the plurality opinion in Alameda
Books 15 to the factual dispute at bar, carefully delineated the narrow question to be
determined on remand:
In this case, plaintiffs have disputed factual findings undergirding the
City's 2001 Amendments.***
Because plaintiffs have thus "furnish[ ed] evidence that disputes the
[City's] factual findings," the burden shifted back to the City "to
supplement the record with evidence renewing support for a theory
that justifies its ordinance" (Alameda Books, 535 U.S. at 439, ... ). ***
... [A] triable question of fact has been presented as to whether 60/40
businesses are so transformed in character that they no longer
resemble the kinds of adult uses found, both in the 1994 DCP Study
and in studies and court decisions around the country, to create
negative secondary effects-as plaintiffs contend-or whether these
businesses' technical compliance with the 60/40 formula is merely a
sham-as the City contends.
In addressing this factual dispute, we anticipate that the City will
produce evidence relating to the purportedly sham character of self-
identified 60/40 book and video stores, theaters and eating and
drinking establishments or other commercial establishments located in
the city. This does not mean that the City has to perform a formal
study or a statistical analysis, or to establish that it has looked at a
representative sample of 60/40 businesses in the city. If the trier of
fact determines, after review of this evidence, that the City has fairly
supported its position on sham compliance .. . 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.
15 See n. 20, infra.
20
6 N.Y.3d at 81-83 (emphases added.) The City did not seek reargument of that
decision which plainly framed an exclusively factual determination on remand.
On remand, the issues were, accordingly, treated as factual. 16 The initial
judgment in favor of the City was reversed by the Appellate Division because the
trial Court failed to make findings offact as required by CPLR 4213, see, For The
People Theatres of NY Inc. v. City of NY, 84 A.D.3d 48, 60 (1st Dept. 2011 ), and
the Appellate Division discussion revolves around the consequences of the
resolution ofthosefactual issues. !d. at 60-64.
Thereafter, on further remand from the Appellate Division, after the City
declined to submit any additional evidence in support of its position despite the
express invitation of the Appellate Division and the lAS Court to do so, the lAS
Court made one hundred ( 1 00) Findings ofF act [For The People Theatres of N. Y
16 The City was a strong proponent of this interpretation. Throughout the proceedings in
Supreme Court the City urged that this Court had remitted the matter "for trial on the
narrow factual question of 'whether 60/40 businesses are so transformed in character
that they no longer resemble the kinds of adult uses found, both in the 1994
[Department of City Planning] Study and court decisions around the country, to create
negative secondary effects -- as plaintiffs contend -- or whether these businesses'
technical compliance with the 60/40 formula is merely a sham -- as the City
contends."' [City's Memorandum of Law After Remand, dated Aug. 30, 2011, at 2
(emphasis supplied).]
The City also urged that "the only question" for the hearing court to "consider on
Remittitur," is "whether the City has satisfied its burden under the third prong of the
Alameda Books test by fairly supporting its position that the covered 60/40
establishments have a predominant on-going focus on sexually oriented materials or
activities." [City's Pretrial Memorandum of Law, dated Oct. 2, 2008, at 24 (emphasis
added).]
21
Inc. v. City of N.Y., 38 Misc.3d 663, 665 et seq. (Sup. Ct. N.Y. Co. 2012), affd,
131 A.D.3d 279 (1st Dept. 2015)] and ruled accordingly, confining its remarks on
the underlying constitutional issues to a final section of its opinion clearly marked
"Dicta." (!d. at 674.) Thus, the issues on which the ultimate judgment turned were
exclusively factual, not constitutional as such.
On the most recent appeal, the Appellate Division clearly treated the issue as
a factual one, specifically whether the City had met its burden "to present evidence
that supported its theory that because the 60/40 entities' nonadult uses were a[n
alleged] sham, the businesses continued to be predominantly sexually focused and,
therefore, a new study showing negative secondary effects of the 60/40 entities was
not legally required." For The People Theatres of N.Y. Inc. v. City of N.Y., 121
A.D.3d 279 at 287-88. The entirety of the majority's discussion is devoted to this
issue, concluding (as plaintiffs have consistently argued) that the City erroneously
"assumes that because the 60/40 clubs regularly feature topless dancing, this
automatically means that they retain a predominant sexual focus," when, in fact,
this is not the case. Id. at 288-293. The dissent argued, to the contrary, that the
City's evidence does satisfy its factual burden. !d. at 300-306. There is no
disagreement as to the controlling constitutional law. It is only the correctness of
the factual findings which are in dispute.
22
Moreover, contrary to the City's second claimed basis for jurisdiction, a
dissent in the Appellate Division on an issue over which the Court of Appeals does
not have subject matter jurisdiction does not operate to confer such jurisdiction on
the Court. See, generally, Karger, The Powers of the NY Court of Appeals, 3d Ed.,
Ch. 6, § 33(b) (1997). That is exactly the case here. The disagreement between
the Appellate Division majority and dissent is not over questions of law, but over
the factual issues presented. In such circumstances, the dissent is insufficient to
confer jurisdiction.
23
POINT II
THE AFFIRMED FINDINGS OF FACT SHOULD NOT BE
DISTURBED ON APPEAL.
Every one of the detailed findings made by the lAS Court, affirmed by the
Appellate Division, is supported by credible evidence in the record. Compare RA
1666-80 (Findings of Fact) with RA 1799-1843 (plaintiffs' proposed findings, with
cross-references to supporting testimony and evidence).
This Court has expressly endorsed the well-known rule of appellate practice
that "the decision of the fact-finding court should not be disturbed upon appeal
unless it is obvious that the court's conclusions could not be reached under any fair
interpretation of the evidence, .... " Thoreson v. Penthouse Intern., Ltd., 80 N.Y.2d
490 (1992) (quoting from Claridge Gardens, Inc. v. Menotti, 160 A.D.2d 544 (1st
Dept. 1990)) (internal quotation marks omitted).
At bar, there is no question but that the lAS Court's findings of fact not only
represent a "fair interpretation of the evidence," but they represent a highly
reasonable interpretation, particularly given the City's undisputed failure to prove,
among other things, that the businesses claiming to be 60-40 which it chose to
investigate, in fact were 60-40 businesses, 17 so that findings regarding the facial
17 The lAS Court made the same observation in the "Dicta" portion of its opinion. 38
Misc.3d at 676.
24
constitutionality of the ordinance - which would be applicable city-wide - would
not be based on a potentially skewed and unrepresentative cross section.
Additional support for the lAS Court's findings is found in: (1) the City's
failure to introduce "additional evidence" despite the clear signals by this Court
and the Appellate Division that such "additional evidence" might be necessary in
order to sustain the challenged restrictions on Free Expression; (2) the
uncontroverted testimony of plaintiffs and other 60/40 club operators as to the
nature of their very substantial and successful efforts to transform their premises
into viable 60/40 businesses; (3) the admission by the City's own witness that the
"garish" signage of the prior era has been replaced with "subdued" signage as
required by the 1995 Ordinance; ( 4) the testimony of plaintiffs' several experts,
negating the City's theory that current 60-40 businesses have the same adverse
secondary effects attributed to the 100% establishments studied in 1994; and (5)
the lAS Court's findings regarding the credibility of experts called by the plaintiffs
and the contrasting lack of credibility on the part of the City's rebuttal expert.
Specifically, in the latter regard, the lAS Court found that plaintiffs' experts
(Drs. Linz and Freeman, and Mr. Anastos) were each credible, whereas the City's
"all-purpose" rebuttal expert (Dr. McCleary) was found not to be credible. 18 These
18 Curiously, the City - - clinging to its dual positions that it had little to prove (and
concomitantly proving little), and that plaintiffs expert testimony was irrelevant - -
refused to call Dr. McCleary on its case-in-chief and insisted that he was only a
25
findings are key, since the lack of evidence of secondary effects attributable to the
60/40 establishments, as clearly established by plaintiffs' experts, clearly
undermined the City's theory that the 1994 findings vis-a-vis 100% clubs were
ipso facto applicable to the 60/40's that offered "topless" dancing in a small
portion of their business premises19 - -the essential question with which the Court
of Appeals grappled in 2005.
Accordingly, the findings of fact are supported by overwhelming evidence,
reflect a highly reasonable interpretation of that evidence, and should not be
disturbed on appeal.
rebuttal witness. Thus, the City found itself in an evidentiary conundrum in which it
could not rely on Dr. McCleary's testimony as part of its Stage III case, and his
rebuttal testimony proved to be incredible.
19 Plaintiffs once again note and emphasize - - as they have throughout the entirety of
this litigation - - that if all the City had to prove was that "topless" dancing was
offered in an eating and drinking establishments (which, in reality, is all that it has
proved), there was no reason for the remand by the Court of Appeals in 2005. The
fact that the Ten's plaintiffs and similar clubs regularly feature "topless" dancing was
admitted in their very complaints (and a pre-requisite to their standing). Clearly, the
City was required to prove more - - specifically the relationship between the intensity
of the use (less than 40%) and the secondary effects legally presumed to flow from
100% usage. Since the City refused to conduct a new secondary effects study, the
2005 majority allowed for the possibility that at a Stage III hearing the City could
prove that there was no material difference between the 100% clubs (the secondary
effects of which had been studied) and the <40% clubs (whose secondary effects, if
any, had not). As the lAS Court found, and the Appellate Division confirmed, the
City simply failed to do so.
26
POINT III
THE CITY FAILED TO MEET ITS STAGE III BURDEN OF
PROOF UNDER CITY OF LOS ANGELES V. ALAMEDA
BOOKS, INC.
As was established on the prior appeal, the trial in this case was a "Stage III"
evidentiary hearing in accordance with the procedural framework set forth in
Alameda Books, supra, the purpose of which is to determine if there is an adequate
content-neutraljustification for an adult zoning ordinance.20
Justice Kennedy and the Alameda Plurality agreed that at the first stage of
the inquiry, a municipality must present evidence which "fairly support[s] its
rationale for its ordinance" but that the plaintiff, at the next evidentiary stage, could
challenge this, "either by demonstrating that the municipality's evidence does not
support its rationale or by furnishing evidence that disputes the municipality's
factual findings." 535 U.S. at 426. Thereafter, at the third evidentiary stage (which
plaintiffs refer to throughout as "Stage III"), "the burden shifts back to the
municipality to supplement the record with evidence renewing support for a theory
that justifies its ordinance." !d. (Emphasis added.)
A municipality's Stage III burden of proof under the procedural framework
of Alameda Books is to prove its case by a preponderance of the credible
20 Although Alameda Books is frequently referenced in both the parties' briefs and the
opinions of the lAS Court, all of plaintiffs' constitutional arguments were alleged
solely under Article I, § 8, of the New York Constitution. See, also, n. 25.
27
evidence, including "whatever additional evidence the [municipality] places in the
record" in addition to the original support for the challenged ordinance. See,
Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, Florida, 337 F.3d
1251 (11th Cir.), reh. en bane den., 85 Fed.Appx. 728 (Tables) (2003), cert. den.,
541 u.s. 988 (2004):
At trial, in keeping with Alameda Books ' burden-shifting analysis
the District Court must determine whether the County's additional
evidence "renew[ s] support for a theory that justifies its ordinance.
* * * Stated otherwise, in light of our finding that the [plaintiffs]
have managed to cast direct doubt on the County's rationale for
adopting [its] Ordinance ... , the District Court must decide by a
preponderance of the available evidence (including whatever
additional evidence the County places in the record) whether there
remains credible evidence upon which the County could
reasonably rely in concluding that the ordinance would combat the
secondary effects of adult entertainment establishments in Manatee
County. The burden lies with the County in this regard. ***
[Emphasis added.]
This is consistent with the "somewhat heightened standard" imposed by
intermediate constitutional scrutiny. The Stage III evidence must be something
more than the Stage I "rational basis" evidence that the plaintiffs already
succeeded in discrediting at Stage II. At Stage III, the facts alleged by the City to
justify the restriction on constitutionally protected expression must be proved by at
least a preponderance of the evidence; in other words, something more than the
lower "substantial evidence" standard used to judge the rationality of the
municipality's original decision (i.e., the Stage I burden).
28
However, regardless of whether judged by the lower "substantial evidence"
standard or the "somewhat heightened" standard of "preponderance of the
evidence," the City failed to meet its burden of proof at bar, e.g., under either
standard.
First, rather than focusing its remand instructions exclusively on a need to
compare external secondary effects of current 60-40 businesses with pre-1995
businesses, the Court of Appeals, in 2005, directed the City to look inside the
businesses (e.g., a comparison of their "essential character," 6 N.Y.3d. at 85) and
compare how the prior businesses operated with the current ones. The problem for
the City is that neither the 1994 Study nor its 1995 Report looked at any of the
conduct going on inside the studied businesses. Yet, the City's post-remand trial
evidence, on which it currently relies, consisted exclusively of an examination of
the internal operations of the current 60-40 businesses. Since its prior Study and
Report provided no basis for comparing the current and prior businesses, 21 it
failed in its burden to demonstrate that there were no potentially material changes
in the internal characteristics of the two types of businesses. In short, the City
offered no evidence as to the character of any "adult establishment" prior to either
the original 1995 Ordinance (or prior to 1998, when the 60/40 "substantial
21 And, again, this Court obviously did not order a remand merely to see if plaintiffs
continued to exhibit sexually explicit performances, a key element of their very
standing to bring this suit. Seen. 19, supra.
29
portion" test took effect), effectively precluding the trial Court (and any reviewing
Court) from making the "so transformed" determination required by this Court:
"whether 60/40 businesses are so transformed in character that they no longer
resemble the kinds of adult uses found, both in the 1994 DCP [Adult
Entertainment] Study and in studies and court decisions around the country, to
create negative secondary effects." [6 N.Y.3d at 84 (emphasis added).]
Additionally, the City did not even meet its burden to show a basis for
comparing the external effects of these two types of businesses. It submitted no
evidence at trial of the external effects for either the pre-1995 100% businesses or
the current 60-40s. Not only did the City elect to put on no contemporary or pre-
2001 evidence of any secondary effects from 60-40 businesses, but, surprisingly,
the City did not even introduce into evidence either its previously relied-upon 1994
Study or its 1995 Report, so there is not even any evidence in the record of the
external effects of the 100% businesses.
Second, the City had the burden to establish, as a factual matter, the
constitutionality of its amendment to the zoning ordinance. It had to show that
sexually-oriented activities at businesses which had actually reduced their adult
entertainment square footage to less than 40o/o predominated over all other uses at
such establishments. As a foundational matter, to meet this burden, the City had to
establish that the businesses on which it relied were in fact 60-40 businesses. It did
30
not meet this burden. While City inspectors went to each of these businesses, none
of them testified that they had determined that they were in fact businesses meeting
the dimensional requirements necessary to qualify as a 60-40 business. Several of
the businesses the City attempted to base its case on appeared to be merely 100%
businesses. Those businesses were totally irrelevant to the inquiry of whether the
60-40 businesses were significantly different from the pre-1995 100% businesses.
In a portion of its Opinion entitled "Dicta," the trial court observed this
evidentiary failure on the City's part and noted its reluctance to make a finding of
facial constitutionality based on the possibility that several of the businesses
claiming to be "60-40" businesses were not actually such. 22
Third, this Court said that a relevant inquiry on remand would be whether
the 60/40 clubs "no longer resemble the kinds of ... uses found ... to create negative
secondary effects." 6 N.Y.3d at 84 (emphasis added.) Notwithstanding the
substantial evidence presented by plaintiffs' three experts that current 60-40
businesses have no secondary effects, the City introduced no controverting
evidence of any secondary effects allegedly caused by the 60/40 clubs,
inexplicably taking the position that this was an irrelevant inquiry on remand.
22 "The Court also questions the wisdom of applying this decision to self-identified 60-
40 entities. It is entirely possible that some or even many of these establishments
were not in fact 60-40 entities. As a result, the false 60-40s could have resulted in the
wrong decision on the statute and some legitimate 60-40 entities could have fallen by
the wayside. This should have been avoided by an examination of the entities to
determine the legitimacy of their 60-40 claim." [38 Misc.3d at 675.]
31
While this Court's remand instructions did not require the City to adduce
additional evidence, once plaintiffs put on their own credible evidence of no
secondary effects, it was incumbent on the City to present controverting evidence,
and its failure to do so was at its own risk in the event that the existing record
would be found insufficient to meet all of its constitutional burdens.23 (It also
bears repeating that this Court did not remand merely to determine if plaintiffs'
businesses still presented sexually oriented entertainment, as that has never been in
dispute and, indeed is the core basis of plaintiffs' very standing to challenge the
2001 Amendments.)
Instead, the City continued to assume its own conclusion, specifically, that
less than 40% "adult" businesses were the secondary effects equivalent of 100%
"adult," notwithstanding that this argument was rejected by this Court in ordering a
Stage III evidentiary hearing to determine if this very assertion (by the City) was
actually true or not.
This manifest failure of proof on the part of the City was compounded by the
City's failures to fairly investigate the operation of these 60-40 businesses.
23 The City was not required to once again prove that "100%" clubs (studied in 1994)
are presumed to cause adverse secondary effects. It was required to prove, however,
that 60/40 clubs (never studied) should also be presumed to do so. In order to do so
(without a new study) it was required to produce competent evidence establishing that
it was fair to apply the 1994 Study to the 60/40 business model - - which did not exist
in 1994 and was created only in response to the 1995 Ordinance. This is the proof
that both the trial Court and the Appellate Division concluded the City never supplied.
32
Specifically, see the repeated admissions by its inspectors that they conducted the
vast majority of their inspections (12 of 16) at off-hours when the clubs were
essentially devoid of customers [(3:30pm) RA 188; (9:00pm) RA 195; (4:00pm)
RA 199; (3:30pm) RA 205; (10:30-llpm) RA 209; (3:30pm) RA 212; (5:00-
5:30pm) RA 217; (2:30-3:00pm) RA 225; (11:00pm-11:00am) RA 230; ("late
afternoon") RA 340; (unspecified "evening") RA 574; (same) RA 578; ("early
evening") RA 605; ("late afternoon") RA 628; (10:00pm-12:00am) RA 633],
making it impossible to draw any fair conclusion as to the "predominant focus" of
the presently constituted businesses during their main (and busiest) hours of
operation.
Thus, as this Court concluded in 2005: "Ifthe trier of fact determines, after
review of [the Stage III] 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 .... " [6 N.Y.3d at 84 (emphasis added).]
The City's evidence neither established that the 60/40's "display a
predominant, ongoing focus on sexually explicit materials or activities .... "nor that
"their essential nature has not changed." Rather, as found by the lAS Court, there
are "significant and distinct differences between the 1994 adult entities and 60/40
33
entities, so that the current establishments no longer resemble their 1994
predecessors. Given their current arrangements and secondary characteristics,
these entities no longer operate in an atmosphere placing more dominance of
sexual matters over nonsexual ones." [38 Misc.3d at 675 (emphasis added).]
Accordingly, plaintiffs properly "prevail[ ed] on their claim that the 2001
Amendments are insufficiently narrow and therefore violate their free speech
rights" and were "entitled to judgment and a declaration that the 2001
Amendments are unconstitutional" as applied to eating and drinking
establishments. 6 N.Y.3d at 84 (emphasis added); see also 84 A.D.3d at 60-63.
34
POINT IV
IN LIGHT OF THE U.S. SUPREME COURT'S RECENT
DECISION IN REED v. TOWN OF GILBERT, THIS COURT'S
EVALUATION OF THE TRIAL COURT'S DECISION UNDER
THE NEW YORK CONSTITUTION SHOULD INCORPORATE
NOT ONLY THE BURDEN SHIFTING INTERMEDIATE
SCRUTINY TEST SET FORTH IN THE PLURALITY
OPINION IN ALAMEDA BOOKS BUT ALSO THE
PROPORTIONALITY TEST ARTICULATED BY JUSTICE
KENNEDY IN THAT CASE
A. Preface
In this Court's initial decision herein, it relied exclusively on the three part
burden-shifting test for analyzing the content-neutrality of adult zoning ordinances
set forth in the plurality opinion in City of Los Angeles v. Alameda Books, Inc.,
535 U.S. 425 (2002), even though plaintiffs' briefing in this Court requested that
this Court also adopt, under the New York Constitution, the additional
"proportionality" test which Justice Kennedy required the City to meet in that case
(discussed infra). However, after both the trial herein and the subsequent
Appellate Division briefing and oral argument, the Supreme Court, in Reed v.
Town of Gilbert,_ U.S._, 135 S. Ct. 2218 (2015), unanimously agreed on a
definition of a "content-based" regulation of expression which rejected the
underlying premise of the Alameda Plurality that a law is "content-neutral" if it
merely has a content-neutral justification. In so doing, it eliminated the
underpinnings of the very test relied on by this Court in its prior opinion. As will
35
be explained, this recently changed definition reqmres reconsideration of the
appropriateness of incorporating Justice Kennedy's proportionality test as an
additional element required by the New York Constitution. Accordingly, should
this Court conclude that a constitutional question is properly before it, and should
it find the 2001 Amendments satisfy the Alameda Plurality's burden shifting test,
Respondents request that the Court alternatively analyze the record, under Justice
Kennedy's proportionality test and either affirm outright under that standard, or, if
deemed necessary, remand for a new trial utilizing that standard.
B. Reed's changed definition of a "content-based" speech regulation
compels the conclusion that the 2001 Amendments are "content based"
and strongly suggests adoption of Justice Kennedy's proportionality test
under the New York Constitution.
In Alameda Books, a majority of the Court agreed that at least part of the
required First Amendment test for adult zoning laws included the three-part burden
shifting paradigm described in Justice O'Connor's Plurality opinion with respect to
establishing the secondary effects needed to justify an adult zoning ordinance.
(The Plurality's theory was that if a content-neutraljustiflcation were demonstrated
for Los Angeles' ordinance on remand, nothing more would be constitutionally
required for the City to demonstrate.) Under Stage I of that burden-shifting test, a
city defending a constitutional challenge to its adult zoning ordinance need make
only a minimal initial showing of the adverse secondary effects the ordinance is
believed to deter. Then, at Stage II, the challenger may adduce evidence disputing
36
the city's asserted secondary effects and, if it does so, the City must respond with
evidence sufficient to overcome the challenger's showing (Stage III).
In its prior decision herein, this Court essentially adopted the Alameda
Books Plurality's burden-shifting test as an element of the New York
Constitution's free speech guarantee?4 Most importantly though, the entirety of
this Court's opinion dealt solely with the narrow issue of whether the currently
regulated 60-40 businesses have comparable adverse secondary effects to their
100% adult-content predecessors. Even assuming that is a correct distillation and
application of the Alameda Plurality test, it is only one half of the federal
constitutional test under the holding in Alameda (which, as discussed infra,
consists of Justice Kennedy's Concurring opinion and the portions of the
Plurality's opinion with which he agreed).
What this Court did not address (or even mention) in its previous decision
herein was whether to also adopt (under the New York Constitution25) the less
24 While the 2005 majority adopted Alameda's burden shifting test, the remand
instructions, as interpreted by the City as only requiring an examination of sham
compliance, do not appear to follow the elements of that test. According to the City,
this Court's opinion did not require the City to respond to Plaintiffs secondary effects
evidence other than by pointing out an undefined number of instances of sham
compliance. That approach is not viable under Alameda, as it would not require the
City to respond to the plaintiffs' evidence of substantial reductions in secondary
effects attributable to compliance with the requirements of the original 1995
Ordinance.
25 Consistent with their Complaint, plaintiffs herein assert claims only under the New
York Constitution.
37
deferential "proportionality test" set forth by Justice Kennedy in his Concurring
opm10n.
Justice Kennedy found the Plurality opmwn, without more, to be
constitutionally inadequate, because it considered only whether the ordinance
furthered any content-neutral purposes, omitting any consideration of "how speech
would fare" under it. 535 U.S. at 450. Under Justice Kennedy's proportionality
test, "a city must advance some basis to show that its regulation has the purpose
and effect of suppressing secondary effects, while leaving the quantity and
accessibility of speech substantially intact. ... A city may not assert that it will
reduce secondary effects by reducing speech in the same proportion." 535 U.S. at
449 (all emphases added). Additionally, he noted that an adult zoning ordinance
"can be consistent with the First Amendment if it is likely to cause a significant
decrease in secondary effects and a trivial decrease in the quantity of speech." !d.
at 445 (emphasis added).
This Court's omission of any discussion of Justice Kennedy's more speech-
protective proportionality test was surprising given that this Court acknowledged
that "Justice Kennedy's opinion, and the relevant parts of the Plurality opinion
with which he agreed, are controlling on the issue of what a municipality must
demonstrate in order to sustain a zoning ordinance regulating adult businesses in
38
the face of a First Amendment challenge." For The People Theatres, supra, 6
N.Y.3d at 79 (emphasis added)?6
In short, the prior decision herein considered only whether the 2001
Amendments serve any substantial content-neutral government interest, but did not
require any balancing of the degree to which they serve that interest with any
countervailing adverse impact they may have on expression. Thus, the 2005
majority opinion did not adopt Justice Kennedy's proportionality test.
If this Court were to conclude that this federal constitutional test also applies
under New York's Constitution, it would provide an alternative, compelling basis
for upholding the trial Court's judgment. The evidence below showed
conclusively (and the trial Court so found) that current 60/40 adult businesses,
unlike their pre-1995 predecessors, do not generate significant adverse secondary
effects in their surrounding neighborhoods, primarily because of their drastically
26 This Court's conclusion that Justice Kennedy's opinion is controlling in adult zoning
cases is shared by most federal appellate courts. See, e.g., Annex Books, Inc., v. City
of Indianapolis, 581 F.3d 460, 465 (ih Cir. 2009); New Albany DVD, LLC v. City of
New Albany, 581 F.3d 556, 561 (ih Cir. 2009); Alameda Books, Inc. v. City of Los
Angeles, 631 F.3d 1031, 1037 (9th Cir. 2011) (all of which went beyond what this
Court required and held that Justice Kennedy's proportionality test applies to adult
zoning ordinances); see also Center For Fair Public Policy v. Maricopa County, 336
F.3d 1153, 1161 (9th Cir. 2003) (agreeing that Justice Kennedy's proportionality test
applies in adult zoning cases, but, by a 2-1 majority, refusing to apply it to a challenge
to an adult business hours of operation restriction), and is based on the holding of the
Supreme Court in Marks v. United States, 430 U.S. 188, 193 (1977) (stating that
"[ w ]hen a fragmented Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, 'the holding of the Court may be viewed as
that position taken by those Members who concurred in the judgments on the
narrowest grounds'").
39
changed signage and the meaningful reduction in concentrations of such businesses
attributable to the original 1995 Ordinance. The evidence also showed that there
would be at least one undisputed adverse impact on expression if the 2001
Amendments were upheld; specifically, all of the plaintiffs would be required to
close their current business locations (with no guarantee they could relocate
elsewhere). 27
In short, the 2005 opinion addressed only one of the two inquiries which the
Supreme Court required lower courts to make when evaluating adult zoning laws.
Judge Read focused only on whether the businesses may still cause secondary
effects, but did not address the Supreme Court's holding (as articulated by Justice
Kennedy) that a court must also consider both the likelihood and degree to which
challenged legislation is expected to reduce adverse secondary effects and then
27 As to the 2001 Amendments' net impact on expression, the burden would be on the
City to show that the ordinance had only a minimal impact on expression. As this
Court acknowledged, "Justice Kennedy's opinion, and the relevant parts of the
Plurality opinion with which he agreed, are controlling on the issue of what a
municipality must demonstrate in order to sustain a zoning ordinance regulating adult
businesses in the face of a First Amendment challenge." For The People Theatres,
supra, 6 N.Y.3d at 79 (emphasis added). Accord, US. v. Playboy Entertainment
Group, Inc., 529 U.S. 803, 816 (2000), stating: "When the Government restricts
speech, the Government bears the burden of proving the constitutionality of its
actions".
No remand is required to measure the total impact on expression however, because
the trier of Fact has already determined that the ordinance did not effect any
significant reduction of secondary effects. That alone is enough to invalidate it under
Justice Kennedy's test.
40
uphold it only if found to significantly reduce secondary effects, and with not too
great a reduction of expression.
Given that the trial Court, the trier of fact here, as affirmed by the Appellate
Division, concluded that the 2001 Amendments did not achieve any significant
reduction in secondary effects beyond what had already been accomplished by the
1995 Ordinance, and the uncontroverted fact that all plaintiffs' businesses would
be forced out of their current locations by the 2001 Amendments, the present
record is more than adequate to sustain the judgment on this alternative ground.
However, although it is now clear what the United States Constitution
requires, since this case arises solely under the New York Constitution, the
remaining question is whether this Court should adopt the federal constitutional
test for adult zoning legislation (or some reasonable variant thereof) under the New
York Constitution. For the following reasons, plaintiffs urge that this Court do so.
First, because the 2005 opinion did not discuss Justice Kennedy's
proportionality test, whether it should apply under the New York Constitution
remains an important question of New York law, a question which given the
Supreme Court's recent Reed decision, is now more important than ever for this
Court to address and resolve.28
28 As Justice Van Voorhis stated, dissenting in Diocese of Rochester v. Planning Bd. of
Brighton, 1 N.Y.2d 508, 529 (1956): "[An] important issue should not be decided
inferentially."
41
Moreover, even assummg, arguendo, that this Court's pnor disposition
without mention or discussion of Justice Kennedy's proportionality test is deemed
to have rejected it sub silentio, this Court's decisions recognize that resolution of
such an important issue should not be dictated by stare decisis, especially by
implication. This Court's cases recognize a variable scale regarding when stare
decisis applies: Although its prior decisions involving contracts are absolutely
binding,29 its decisions of statutory interpretation are less so;30 and its
determinations of constitutional law, particularly where there has been relevant
Cf, Bellanca v. New York State Liquor Authority, 54 N.Y.2d 228 (N.Y. 1981), where,
in its first consideration of plaintiffs challenge to a statute prohibiting topless dancing
in liquor establishments, this Court addressed only whether the law violated the
United States Constitution, but following remand from a Supreme Court decision
finding no such First Amendment protection, reached and resolved the case based on
a previously unaddressed argument that the law violated the New York Constitution.
"We are now called on to consider the validity of the subdivision under the provisions
of our State Constitution, an issue which we did not address when the case was before
us on the prior occasion." 54 N.Y.2d at 235.
29 See K2 Inv. Group, LLC v. American Guar. & Liab. Ins. Co., 22 N.Y.3d 578, 587
(2014), involving a contract: "When our Court decides a question of insurance law,
insurers and insureds alike should ordinarily be entitled to assume that the decision
will remain unchanged unless or until the legislature decides otherwise. In other
words, the rule of stare decisis, while it is not inexorable, is strong enough to govern
this case."
30 See People v. Rudolph, 21 N.YJd 497, (2013), noting that this Court finds principles
of stare decisis less likely to control the outcome where it is being asked to reconsider
an important issue of statutory construction: ("On this occasion, as on a number of
others, we find the reasons for adopting what we think the correct interpretation of the
statute to be more compelling than the reasons for adhering to a mistaken one." !d. at
502.)
42
intervening Supreme Court precedent, are even less so.31 Surely this Court's prior
determinations of constitutional law which are only implicit, but not explicit, would
seem even less subject to any controlling impact by the doctrine of stare decisis.
Second, this Court has long recognized that " '... at the very least, the
guarantee of freedom of expression set forth in our State Constitution is of no
lesser vitality than that set forth in the Federal Constitution' (Bellanca v. State Liq.
Auth., 54 N.Y.2d 228, 235)." People ex rel. Arcara v. Cloud Books, Inc., 68
N.Y.2d 553 (1992).
31 See, e.g., Brooke S.B. v. Elizabeth A. C. C.,_ N.Y.3d _, 2016 WL 4507780 (2016),
(overruling its prior express interpretation of who may or may not be a parent under
New York law, based on a change in the assumptions underlying the earlier decision
caused, at least in part, by a more recent constitutional pronouncement on the related
issue of gay marriage by the U.S. Supreme Court); and People v. Patterson, 39
N.Y.3d 288, (1976) (a criminal case where this Court gave the defendant the benefit
of a U.S. Supreme Court constitutional ruling occurring after he was convicted,
overruling its earlier decision in People v. McGowen, 42 N.Y.2d 905 (1977), in order
to achieve that result).
To like effect see Lawrence v. Texas, 539 U.S. 538, at 577 (2003), rejecting stare
decisis on an important issue of constitutional law (e.g., whether the liberty protected
by the Fourteenth Amendment's due process clause includes protection of private
homosexual conduct) where more recent decisions had suggested the need for
reconsideration of precedent:
The doctrine of stare decisis is essential to the respect accorded to the
judgments of the Court and to the stability of the law. It is not, however, an
inexorable command. Payne v. Tennessee, 501 U.S. 808, 828 (1991) ("Stare
decisis is not an inexorable command; rather, it 'is a principle of policy and not a
mechanical formula of adherence to the latest decision"')."
43
Third, the Supreme Court's recent decision in Reed compels a re-evaluation
of the totality of the Alameda holding. Specifically, in Reed the Court applied
strict, rather than intermediate, scrutiny in a case involving a type of speech
regulation (e.g., sign regulations) which the Ninth Circuit found to be "content-
neutral" (because it had a content-neutral justification) and therefore subject only
to the lesser standard of intermediate scrutiny review. Reed v. Town of Gilbert,
587 F.3d 966, 975 and 978 (9th Cir. 2009).32 After expressly acknowledging that
Justice Kennedy, in Alameda, had articulated a controlling definition of "content-
based" (587 F.3d at 975), the Ninth Circuit nonetheless found that definition
ambiguous in connection with the sign restriction before it. Because it found the
sign restriction had a content-neutral justification, the Ninth Circuit held that the
sign restriction was content-neutral, notwithstanding that an enforcing officer
would have to read the contents of a sign in order to determine if there was a
violation. The Supreme Court reversed and remanded, holding that the ordinance
was indeed content-based.
While Reed involved a challenge to s1gnage restrictions, its broader
significance is that it is the first time since Alameda (2002) that the Court
32 The ordinance, as amended, imposed restrictions on "Temporary Directional Signs,"
limiting, e.g., the duration of time that such signs could remain posted. The court
observed that the ordinance had the content-neutral purpose of "assur[ing] 'proper and
efficient expression through visual communication' that is 'compatible with the
character and environment' of Gilbert". 587 F.3d at 975.
44
significantly addressed the definition of what makes a law "content-based" and the
consequences which flow from such a conclusion.
Most significantly, the Supreme Court in Reed, for the first time, provided a
definition of "content-based" embraced by the entire Court,33 essentially adopting
Justice Kennedy's definition of that term provided in Alameda. Specifically:
Government regulation of speech is content based if a law
applies to particular speech because of the topic discussed or the idea
or message expressed. E.g., Sorrell v. IMS Health, Inc., 564 U.S. -,
131 S.Ct. 2653, 2663-2664 (2011); Carey v. Brown, 447 U.S. 455,
462 (1980); [Police Dpt. of Chicago v.] Mosley, supra, [408 U.S. 92,]
at 95_[(1972)]. This commonsense meaning of the phrase "content
based" requires a court to consider whether a regulation of speech "on
its face" draws distinctions based on the message a speaker conveys.
Sorrell, supra, at--, 131 S.Ct., at 2664. Some facial distinctions
based on a message are obvious, defining regulated speech by
particular subject matter, and others are more subtle, defining
regulated speech by its function or purpose. Both are distinctions
drawn based on the message a speaker conveys ....
Reed, 135 S.Ct at 2227 (emphasis in original.)
33 Neither the concurring opinion of Justice Alito Uoined in by Justices Kennedy and
Sotomayor), the concurring opinion of Justice Kagan Uoined by Justices Ginsburg and
Breyer), nor Justice Breyer's separate concurrence disputed or even quibbled with the
Reed majority's definition of "content-based." Three of the Justices (Kagan, Ginsburg
and Breyer, JJ.) would not automatically subject all content-based laws to full strict
scrutiny, on the theory that such a standard would leave no flexibility for many
common sense regulations which are content-based but do not discriminate based on
the viewpoint or substance of the message. Yet all three Justices would appear to
subject such "content-discriminating" laws to far more than the minimal scrutiny
adopted in Renton (discussed at length infra) (and by the Alameda Plurality). To that
extent, their positions are very similar to the opinions of both Justice Kennedy and the
four dissenters in Alameda.
45
This definition of "content-based" clearly applies to every "adult" zoning
law and is the same as Justice Kennedy articulated in Alameda Books (535 U.S. at
448), where he said:
The fiction that this sort of ordinance is content neutral- or "content
neutral"- is perhaps more confusing than helpful, as Justice SOUTER
demonstrates, see post, at 1745 (dissenting opinion). It is also not a
fiction that has commanded our consistent adherence. See Thomas v.
Chicago Park Dist., 534 U.S. 316, 322, and n. 2 (2002) (suggesting
that a licensing scheme targeting only those businesses purveying
sexually explicit speech is not content neutral). These ordinances are
content based, and we should call them so.
The four dissenters in Alameda also rejected the notion that adult zoning
ordinances are content-neutral, though preferring to describe them by a new term,
"content correlated" (535 U.S. at 457).
In contrast, the Plurality in Alameda Books noted that the Court's earlier
adult zoning decision, City of Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986), deemed an adult use separation ordinance "content-neutral" (535 U.S. at
433-43434). However, Renton reached that conclusion based on its then-novel
advancement of the (now-rejected) theory that a law should be deemed "content-
neutral" merely because it has a content-neutral justification. Believing that
Renton was correctly decided, the Alameda Plurality analyzed the Los Angeles
34 "In Renton ... [w]e ... considered whether the ordinance was content neutral or content
based. If the regulation were content based, it would be considered presumptively
invalid and subject to strict scrutiny. We held, however, that ... the ordinance was
deemed content-neutral." Plurality opinion of J. 0 Connor, 535 U.S. at 434.
46
adult zoning ordinance solely to determine whether it was supported by a content-
neutral justification. While that moribund definition of content-neutrality (which
formed the underpinning of the Plurality's opinion that a city need only prove a
content-neutral justification) did not even gamer five votes in Alameda itself, it
surely does not survive the contrary holding of the entire Court in Reed.
Since Alameda's Plurality opinion was the only portion of Alameda which
Judge Read utilized in fashioning the 2005 remand instructions herein, given
Reed's rejection of the definition of "content-neutral" on which the remand was
based, there is clearly compelling justification to reconsider the constitutional test
applicable here, albeit under the New York Constitution.
Given that an adult zoning ordinance clearly falls within the now
unanimously accepted definition of a content-based law (since it only applies to
speakers defined by the content of their expression), what remains is only to
determine under which test such law should be analyzed. The Reed majority held
that the test for a content-based sign law should be strict scrutiny.
However, as a practical matter, strict scrutiny, while seemingly required by
the Reed majority, would be inappropriate here because it would almost certainly
invalidate every adult zoning ordinance, and the Supreme Court could not have
intended such a result. On the other hand, it is equally clear that the Renton test is
no longer controlling since a majority in Alameda itself found it incomplete, and
47
Reed has now definitively rejected the premise of content-neutrality, first
expressed in Renton, upon which the Alameda Plurality relied.
In sum, Reed and Justice Kennedy's opinion in Alameda Books, taken
together, suggest that the most reasonable and constitutionally sustainable
approach would be for this Court to adopt, under the New York Constitution, either
the proportionality test for adult zoning laws as articulated and required by Justice
Kennedy or a reasonable variant thereof 35 which is at least sensitive to the threats
to speech inherently present in any content-based or "content-correlated" time,
place and manner restriction. Under any such reasonable test, the 1995 Ordinance
may well stand, but the 2001 Amendments certainly cannot.
35 While Justice Kennedy's proportionality test requires that "a city must advance some
basis to show that its regulation has the purpose and effect of suppressing secondary
effects, while leaving the quantity and accessibility of speech substantially intact ....
[and that] [a] city may not assert that it will reduce secondary effects by reducing
speech in the same proportion" (535 U.S. at 449), this Court need not even go that far
in adopting a speech-sensitive test under the New York Constitution. However, some
balancing of the likely effectiveness of the ordinance in reducing secondary effects
against its impact on expression must be required given not only this precedent, but,
more importantly, the undeniable great and immediate potential for censorship in any
ordinance or law which imposes unique restrictions on those engaged in a particular
type of expression defined by its content.
48
POINTY
PLAINTIFFS PRESERVED THEIR RIGHT TO
CHALLENGE THE 2001 AMENDMENTS AS APPLIED TO
THEM.
The City asserts that on any remand, plaintiffs may not pursue their as-
applied constitutional challenges recognized by the Appellate Division in its 2011
ruling, For The People Theatres of New York v. City of N.Y., 84 A.D.3d 48, 64-65
(2011). (App.Br.73.)
While the City is correct that it has not waived its right to challenge that
ruling, the City's various arguments asserting that plaintiffs' as applied challenges
are barred, are without merit.
First, the City unpersuasively argues that plaintiffs' as-applied challenges
are procedurally barred by an asserted waiver. However, as the Appellate Division
recognized, during the first trial plaintiffs' counsel made clear that plaintiffs'
Complaint should be construed as including both facial and as-applied challenges
to the 2001 Amendments (see 84 A.D.3d at 64 and n. 17); and this point was also
extensively made in advance of trial in Point IV of Plaintiff's Brief on Remand
From Appellate Division (see pp. 82-87) filed on or about October 21, 2011. The
City suffered no prejudice as it was on notice well in advance of the trial. Thus
even if Plaintiffs' Complaint could have been clearer, as the Appellate Division
tellingly observed:
49
Although the plaintiffs concede that the as-applied challenge was
"inartfully pleaded" the law is, of course, well settled that pleadings
are to be construed liberally (CPLR 3026 ["Pleadings shall be
liberally construed. Defects shall be ignored if a substantial right of a
party is not prejudiced"]). (Footnote omitted.)
Moreover, there is a well-recognized presumption that complaints presenting
facial constitutional challenges are appropriately construed as inherently including
as-applied challenges as well:
Because the distinction between facial and as-applied challenges
informs only the choice of remedy, "not what must be pleaded in the
complaint," a court may construe a challenge as applied or facially, as
appropriate. See Citizens United, 558 U.S. at 331.
Six Star Holdings, LLC v. City of Milwaukee, 821 F .3d 795 at 803 (th Cir. 20 16).
Consequently, there is no merit to the City's assertion that plaintiffs waived
their as-applied challenges.
The City also asserts that as applied challenges to adult zoning laws are
constitutionally impermissible. App.Br.75-79. It attempts to support that claim by
making the unremarkable argument that "a locality is not required to connect
particular adult businesses to negative secondary effects," citing this Court's earlier
decision herein. However, it clearly misunderstood this Court's remarks. This
Court was merely observing that in order to refute a facial challenge to an adult
zoning ordinance, a city would not have to demonstrate adverse secondary effects
for every individual regulated business. Since the issue of as-applied challenges
was not even before this Court at that time, the expanded interpretation of that
50
language offered by the City is wholly insupportable.
The City cites only one decision supportive of its assertion that an as-applied
challenge to an adult zoning ordinance is constitutionally barred, Independence
News, Inc. v. City of Charlotte, 568 F.3d 148 (4th Cir. 2009) and omits any
discussion of the contrary conclusion reached by a case cited below by plaintiffs,
Gammoh v. City of Anaheim, 73 Cal.App.4th 186, 197-198 (1999). Comparing
these decisions is instructive.
In Gammoh, the court upheld an as-applied challenge to an adult zoning
ordinance based on a claim that enforcement of an adult business residential
proximity restriction was unconstitutional as applied where the only disqualifying
nearby residentially zoned parcel was too small to support any actual residential
use, i.e., there were no adverse secondary effects from that particular adult
business which the ordinance would alleviate.
Conversely, in Independence News, the court rejected an as applied
challenge to an adult zoning ordinance where the plaintiffs presented evidence that,
post-enactment, their businesses generated no adverse secondary effects. The
Court rejected that challenge based on its view that the only adverse secondary
effects which are relevant are those which existed before the ordinance was
enacted. In contrast, plaintiffs' claim here is that the complained-of secondary
effects had already been ameliorated before the 2001 Amendments were enacted,
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as a result of numerous changes triggered by compliance with the original 1995
ordinance. Thus, the principle invoked in Independence News not only does not
help the City, but actually undermines its position. 36
Moreover, the current as-applied challenges (to the City's 2001
Amendments) address a truly unique situation in that this Court, in its 2005
decision herein, appears to have invited post-enactment evidence on remand, i.e.,
evidence of the current nature of the City's 60/40 businesses, to ascertain whether
they continue to generate the secondary effects referenced by the City to justify
adoption of the original 1995 adult zoning resolution. This focus on post-
enactment evidence is reflected in this Court's use of the current tense in the word
"display":
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. (6 N.Y.3d at 84,
emphasis added.)
36 The City's reliance on Independent News is also unpersuasive for another reason. In
rejecting the plaintiffs' as-applied challenge, Independence News relied heavily on the
Supreme Court's decision in Ward v. Rock Against Racism, 491 U.S. 781 (1989),
cited at 568 F.3d at 154. However, Ward did not reject an as-applied challenge but,
instead, merely pointed out that a statute could not be facially invalidated merely
because it may not further the government's interest in every application.
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This unusual remand appears to be based on the v1ew that evidence
regarding post-enactment compliance (e.g., whether it was sham or not) would
determine the validity of the previously enacted legislation. That approach appears
to be unprecedented. Yet given its use by the majority in the 2005 remand,
plaintiffs ought equally to be permitted to rely on post-enactment evidence, e.g.,
the changes they made in response to the original 1995 ordinance (and/or the 2001
Amendments), and the resulting diminution of secondary effects caused by those
changes. In fairness, and as a matter of consistency, plaintiffs should be permitted
to offer such evidence and have it considered for the same time periods that the
City has relied upon in its attempt to prove sham compliance. If followed, this
approach would render the as-applied holding of Independence News entirely
inapplicable since it was based solely on the assumption (based on no binding
authority) that it would be inappropriate to consider any post-enactment evidence
in adult zoning as-applied challenges.
In short, to the extent this Court's remand based the determination of facial
constitutionality on the state of post-enactment compliance, and given that the
evidence showed a vast range of post-enactment compliance manifested by the
numerous different analyzed clubs featuring dancing, it would seem to follow, a
fortiori, that an as-applied constitutional challenge could be brought by non-sham
60-40 businesses which assert that their operation has none of the secondary
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effects previously associated with the originally regulated 100% adult businesses.
Entertaining an as applied challenge here would also be consistent with New
York v. Ferber, 458 U.S. 747 (1982), which upheld New York's child pornography
statute. The defendant there had challenged the statute on facial overbreadth
grounds, arguing that there were some circumstances where it could not be
constitutionally applied. In response, the Supreme Court made clear that where the
number of potentially unconstitutional applications of a statute is small or
insignificant compared to the number of its legitimate applications, a facial
challenge is inappropriate, but the appropriate remedy would then be through
"case-by-case analysis of the fact situations to which its sanctions, assertedly, may
not be applied," i.e., as-applied challenges. 458 U.S. at 774.37
Were this Court were to reject the trial court's determination of the 2001
Amendments' facial invalidity, as affirmed by the Appellate Division, plaintiffs
and/or others similarly situated should likewise be permitted to challenge the
ordinance as applied to them.
37 The Court noted that the circumstance in Ferber constituted "the paradigmatic case of
a state statute whose legitimate reach dwarfs its arguably impermissible applications."
458 U.S. at 773-774. In sharp contrast, the evidence here clearly establishes that the
2001 Amendment would have an unconstitutional reach affecting a significant
number of 60/40 businesses.
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Conclusion
For all of these reasons, the Order appealed from, affirming the Judgment of
Supreme Court, New York County, declaring the 2001 Amendments
unconstitutional, should be AFFIRMED, with costs; or, alternatively, the actions
should be remanded for re-decision under the "how speech will
fare/proportionality" standard of Justice Kennedy's Concurring opinion in
Alameda Books; or, in the further alternation, for determination of the "as applied"
challenges asserted by the plaintiffs.
Dated: New York, New York
November 2, 2016
EdwardS. Rudofsky,
Of Counsel
Respectfully submitted,
MEHLER & BUSCEMI
Attorneys for Plaintiffs-Respondents
305 Broadway, Suite 1102
New York, New York 10007
(212) 962-4688
mehlerb scemi aol. com
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