APL-2015-00273
New York County Clerk’s Index Nos. 121080/02 and 121197/02
Court of Appeals
of the
State of New York
FOR THE PEOPLE THEATRES OF N.Y., INC. d/b/a Fair Theatre,
Plaintiff,
– and –
JGJ MERCHANDISE CORP. d/b/a Vishans Video a/k/a Mixed Emotions,
Plaintiff-Respondent,
– against –
THE CITY OF NEW YORK, HON. MICHAEL R. BLOOMBERG, as Mayor
of the City of New York, AMANDA M. BURDEN, as Director of City Planning,
Department of City Planning of the City of New York, and PATRICIA J.
LANCASTER, as Commissioner of Buildings, Department of Buildings
of the City of New York,
Defendants-Appellants.
––––––––––––––––––––––––––––––
(For Continuation of Caption See Inside Cover)
BRIEF FOR AMICUS CURIAE
FIRST AMENDMENT LAWYERS ASSOCIATION (FALA)
JENNIFER KINSLEY, ESQ.
Chase College of Law
Northern Kentucky University
Nunn Hall, Room 507
Highland Heights, KY 41099
Tel.: (859) 572-7998
Fax: ????
Of Counsel
HOWARD E. GREENBERG
THE LAW OFFICE OF
HOWARD E. GREENBERG
Attorneys for Amicus Curiae
First Amendment Lawyers Association
(FALA)
180 East Main Street, Suite 308
Smithtown, New York 11787
Tel.: (631) 777-4747
Fax: (631) 982-0087
Dated: March 17, 2017
Index No.
121080/02
TEN’S CABARET, INC., f/k/a Stingfellow’s of New York, Ltd., PUSSYCAT
LOUNGE, INC. d/b/a “Pussycat Lounge,” CHURCH STREET CAFÉ, INC.
d/b/a “Baby Doll” and 62-20 QUEENS BLVD., INC. d/b/a “ Nickels,”
Plaintiffs-Respondents,
– against –
THE CITY OF NEW YORK, HON. MICHAEL R. BLOOMBERG, as Mayor
of the City of New York and PATRICIA J. LANCASTER, as Commissioner of
Buildings, Department of Buildings of the City of New York,
Defendants-Appellants.
Index No.
121197/02
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 500.1(±) ofthe Court of Appeals Rules ofPractice, the First
Amendment Lawyers Association discloses that it has no parents, subsidiaries, or
affiliates.
Dated: Smithtown, New York
March 17, 2017
Yours, etc.,
HOWARD E. GREENBERG, ESQ., P.C.
Attorneys for First Amendment
Lawyers Association, amicus curiae
180 East Main Street, Suite 308
Smithtown, New York 11787
(631) 982-0080
Howard E. Greenberg
h green berg@h greenberglaw.ne t
TABLE OF CONTENTS
Table of Cases and Authorities ................................................................................... i
Statement of Interest .................................................................................................. 1
Argument.................................................................................................................... 2
I. Because They Are Content-Based Restrictions on Speech,
The Constitutionality Of The 2001 Amendments Must Be
Analyzed Using Strict Scrutiny ............................................................. 3
II. Even If The Constitutionality Of The 2001 Amendments Is
Analyzed Under Intermediate Scrutiny, The City Failed To
Meet Its Burden At Step Three Of The Alameda Books
Burden-Shifting Test ............................................................................. 8
Conclusion ............................................................................................................... 16
TABLE OF CASES AND AUTHORITIES
Cases
11126 Baltimore Blvd. v. Prince George’s County, Md.,
886 F.2d 1415 (4th Cir. 1989) ........................................................................ 11
Abilene Retail No. 30, Inc. v. Bd. of Comm’s of Dickinson County,
Kan., 492 F.3d 1164 (10th Cir. 2008) .............................................................. 9
Ashcroft v. Free Speech Coalition, Inc., 535 U.S. 234 (2002) .............................. 1, 2
Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003) ...................... 11
Brickman v. Facebook, Inc., 2017 WL 386238 (N.D. Cal. Jan. 27, 2016) ............... 7
Browne v. City of Grand Junction, 136 F.Supp.3d 1276 (D. Colo. 2015) ................ 6
Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015) ......................................................... 6
Central Radio Co., Inc. v. City of Norfolk, Virginia, 135 S.Ct. 2893 (2015) ............ 6
City of Erie v. Pap’s AM, 529 U.S. 277 (2000) ....................................................... 10
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) ..... 2, 3, 4, 8, 9, 10
City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986) ......................... 10, 12
Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001) ........................................ 14
D.H.L. Associates, Inc. v. O’Gorman, 199 F.3d 50 (1st Cir. 1999) ......................... 11
Doctor John’s, Inc. v. City of Sioux City, 305 F.Supp.2d 1022
(N.D. Iowa 2004) ........................................................................................... 13
For The People Theatres of N.Y., Inc. v. City of New York,
6 N.Y.3d 63 (2005) .......................................................................................... 3
Free Speech Coalition, Inc. v. Atty. Gen. of the United States,
825 F.3d 149 (3d Cir. 2016) ............................................................................ 7
Gresham v. Rutledge, 2016 WL 4027901 (E.D. Ark. 2016) ................................. 6, 7
Hickerson v. City of New York, 146 F.3d 99 (2d Cir. 1998) .................................... 11
Lakeland Lounge of Jackson, Inc. v. City of Jackson,
973 F.2d 1255 (5th Cir. 1992) ........................................................................ 13
Norton v. City of Springfield, Ill., 806 F.3d 411 (7th Cir. 2015) ............................ 6, 7
Peek-A-Boo Lounge v. Manatee County, 337 F.3d 1251 (11th Cir. 2003) ........... 9, 11
Phillips v. Borough of Keyport, 107 F.3d 164 (3d Cir. 1997) ................................. 11
Reed v. Town of Gilbert, 135 S.Ct. 2518 (2015) ....................................... 2, 3, 4, 5, 7
SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5th Cir. 1988) ................................... 11
Sorrell v. IMS Health Inc., 131 S.Ct. 2653 (2011) .................................................... 4
Thayer v. City of Worcester, 135 S.Ct. 2887 (2015) ................................................. 6
Thomas v. Schroer, 2015 WL 5231911 (W.D. Tenn. Sept. 8, 2015) ........................ 6
United States v. Playboy Entertainment Group, Inc., 529 U.S. 503 (2000) .............. 1
Wagner v. City of Garfield Heights, Ohio, 135 S.Ct. 2888 (2015) ........................... 6
White River Amusement Pub v. Town of Hartford, 481 F.3d 163
(2d Cir. 2007) ........................................................................................... 11, 12
Other Authorities
Anthony Lauriello, Panhandling Regulation After
Reed v. Town of Gilbert, 116 Colum. L. Rev. 1105 (May 2016) ................... 7
Urja Mittal, The”Supreme Board of Sign Review”:
Reed and Its Aftermath, 125 Yale L.J.F. 359 (2016) ...................................... 7
1
STATEMENT OF INTEREST
The First Amendment Lawyers Association (“FALA”) is an Illinois-based,
not-for-profit organization comprised of approximately 200 attorneys who
routinely represent businesses and individuals that engage in constitutionally-
protected expression. FALA’s members practice throughout the United States,
Canada, and elsewhere in defense of the First Amendment and, by doing so,
advocate against governmental forms of censorship. Member attorneys frequently
litigate the facial validity of speech-restrictive legislation; in fact, many of the
Supreme Court’s most recent First Amendment cases were either argued by FALA
attorneys or involved the participation of FALA attorneys in some capacity. See,
e.g., Ashcroft v. Free Speech Coalition, Inc., 535 U.S. 234 (2002) (successful
challenge to Child Pornography Prevention Act argued by FALA attorney and
counsel for Appellants H. Louis Sirkin); United States v. Playboy Entertainment
Group, Inc., 529 U.S. 503 (2000) (successful challenge to “signal bleed” portion of
Telecommunications Act argued by FALA member Robert Corn-Revere). In
addition, FALA has a tradition of submitting amicus briefs to the federal courts in
cases, such as this one, in which the First Amendment right of free speech is
endangered. By affirmative vote of its designated Amicus Committee, FALA is
authorized to submit this amicus brief.
2
ARGUMENT
Amicus Curiae First Amendment Lawyers Association (“FALA”) urges
affirmance of the Appellate Division, First Department’s decision invalidating the
2001 Amendments of the City of New York’s zoning restrictions on the location
and operation of businesses that present adult entertainment or sell adult-oriented
print materials and merchandise. As Plaintiffs-Respondents Ten’s Cabaret et al.
point out in their brief, the questions presented in this appeal are factual in nature,
as the constitutional questions have previously been addressed and decided by this
Court. However, to the extent the Court reconsiders the constitutionality of the
2001 Amendments, FALA urges the Court to employ strict scrutiny, as is now
required by the United States Supreme Court. See Reed v. Town of Gilbert, 135
S.Ct. 2518 (2015). In the alternative, should the Court employ intermediate rather
than strict scrutiny, it should do so recognizing the heightened burden
municipalities face at stage three of the Supreme Court’s Alameda Books burden-
shifting test. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).
FALA acknowledges that the constitutional questions in this case involve
the New York Constitution, not the United States Constitution. Nevertheless, the
First Amendment principles adopted by the United States Supreme Court and
lower federal courts prove useful in shaping and delineating the scope of the state
constitutional protection. As set forth below, FALA therefore encourages this
3
Court to follow the mandates of Reed and, alternatively, Alameda Books in
deciding this appeal.
I. Because They Are Content-Based Restrictions on Speech, The
Constitutionality Of The 2001 Amendments Must Be Analyzed Using
Strict Scrutiny.
FALA agrees with and supports Plaintiffs-Respondents’ argument that the
constitutional issues in this case have already been decided and that the sole
questions on appeal are factual, not legal. See Resp. Ten’s Cabaret Br.1 pp. 19-23.
Nevertheless, to the extent the Court’s resolution of this appeal involves the
constitutionality of the 2001 Amendments, the Court must apply strict scrutiny,
rather than the variant of intermediate scrutiny set forth in City of Los Angeles v.
Alameda Books, Inc., 535 U.S. 425 (2002). Since this Court’s decision in For The
People Theatres of N.Y., Inc. v. City of New York, 6 N.Y.3d 63 (2005), which
upheld the facial validity of the 2001 Amendments subject to factual analysis
based on intermediate scrutiny, the United States Supreme Court has offered
additional clarification of how speech-restrictive ordinances should be examined.
See Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015). That guidance requires
greater scrutiny of the 2001 Amendments than this Court previously applied.
1 References to “Resp. Ten’s Cabaret Br.” are to the brief filed by Plaintiffs-
Respondents Ten’s Cabaret, Inc. f/k/a Stringfellow’s of New York, Ltd., and
Pussycat Lounge, Inc. d/b/a “Pussycat Lounge” filed with the Court on or about
November 2, 2016.
4
In Reed, the Supreme Court struck down a sign ordinance which included
various exceptions and variable standards depending on whether the sign was
political, elections-oriented, or bore some other non-commercial message. The
Court found that the ordinance was content-based and subject to strict scrutiny.
The Court cited a commercial case - Sorrell v. IMS Health Inc., 131 S.Ct. 2653
(2011) - for the principle that heightened scrutiny was required when content-based
discriminations are found in a law.
The majority opinion in Reed noted that there had been some “slippage” in
First Amendment cases over the years, whereby the lower courts have upheld laws
unless the content-based distinctions directly reflect an intent to regulate based on
issue or speaker. The lower courts have also tended to uphold laws affecting
speech where the government offered a content-neutral reason for choosing a
particular category for regulation. Thus, categorical exceptions were not treated as
content-based laws unless they appeared to be targeted at a particular message.
The circuit court in Reed had taken just that approach:
As the court explained, “Gilbert did not adopt its regulation of speech
because it disagreed with the message conveyed” and its “interests in
regulat[ing] temporary signs are unrelated to the content of the sign.”
Ibid. Accordingly, the court believed that the Code was “content-
neutral as that term [has been] defined by the Supreme Court.” Id. at
1071. In light of that determination, it applied a lower level of scrutiny
to the Sign Code and concluded that the law did not violate the First
Amendment. Id. at 1073–1076.
Reed, 135 S.Ct. at 2226.
5
The Supreme Court rejected this approach, adopting instead a more
formalistic analysis. Under the post-Reed regime, a law will be declared content-
based if it adopts categories, exclusions, or exclusions defined in terms of what is
said:
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, 180 L.Ed.2d 544 (2011); Carey v. Brown,
447 U.S. 455, 462, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Mosley,
supra, at 95, 92 S.Ct. 2286. 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, and,
therefore, are subject to strict scrutiny.
Reed, 135 S.Ct. at 2227.
In addition to laws which explicitly regulate in terms of what is said, the
Court also held that laws which are content-neutral on their face will be treated as
content-based if their justification relies on distinctions between the message or the
messenger:
Our precedents have also recognized a separate and additional
category of laws that, though facially content neutral, will be
considered content-based regulations of speech: laws that cannot be
“‘justified without reference to the content of the regulated speech,’
“or that were adopted by the government “because of disagreement
with the message [the speech] conveys,” Ward v. Rock Against
Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).
6
Those laws, like those that are content based on their face, must also
satisfy strict scrutiny.2
Reed, 135 S.Ct. at 2227.
In applying Reed, the lower federal courts have faithfully applied strict
scrutiny, noting that laws which create distinctions based on categories of speech
are likely invalid. See, e.g., Norton v. City of Springfield, Ill., 806 F.3d 411, 412-
13 (7th Cir. 2015) (invalidating content-based panhandling restriction by applying
strict scrutiny under Reed); Browne v. City of Grand Junction, 136 F.Supp.3d 1276
(D. Colo. 2015) (same); Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015)
(invalidating state statute prohibiting unsolicited marketing and politically related
calls as content‐based and unconstitutional under the First Amendment);
Gresham v. Rutledge, 2016 WL 4027901 (E.D. Ark. 2016) (same); Thomas v.
Schroer, 2015 WL 5231911 (W.D. Tenn. Sept. 8, 2015). Notably, these cases do
not limit Reed’s application to sign ordinances, but apply strict scrutiny to a whole
host of speech-related restrictions, regardless of the manner of delivery of the
2 In the wake of Reed, the Supreme Court vacated and remanded similar decisions
from three other circuits (the First, Fourth, and Sixth) on the basis that the courts
improperly declined to impose strict scrutiny when analyzing the constitutionality
of various sign ordinances. See Thayer v. City of Worcester, 135 S.Ct. 2887 (2015)
(reversing and remanding Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014),
on basis of Reed); Central Radio Co., Inc. v. City of Norfolk, Virginia, 135 S.Ct.
2893 (2015) (reversing and remanding Central Radio Co., Inc. v. City of Norfolk,
776 F.3d 229 (4th Cir. 2015)); Wagner v. City of Garfield Heights, Ohio, 135 S.Ct.
2888 (2015) (reversing Wagner v. City of Garfield Heights, 577 Fed.Appx. 488 (6th
Cir. 2014), in light of Reed).
7
speech in question. See, e.g., Norton, 806 F.3d at 412. In fact, at least one federal
court has explicitly held that regulation of sexually-oriented speech, like that in
question here, is content-based and therefore subject to strict scrutiny under Reed.
See Free Speech Coalition, Inc. v. Atty. Gen. of the United States, 825 F.3d 149,
160-64 (3d Cir. 2016). Thus, Reed requires strict scrutiny in any instance where a
government regulation singles out speech for disparate treatment based upon its
content or message.3
Given Reed’s new standard for determining when an ordinance that targets
speech is content-based as opposed to content-motivated, this Court should
reexamine the facial validity of the 2001 Amendments using strict scrutiny.4 As
3 In addition, legal scholars have also emphasized the impact of Reed,
characterizing it as “sea change” in First Amendment jurisprudence and noting that
Reed’s “redefinition of content discrimination…revolutionize[d]” free speech
doctrine). See Anthony Lauriello, Panhandling Regulation After Reed v. Town of
Gilbert, 116 Colum. L. Rev. 1105, 1105 (May 2016); Urja Mittal, The”Supreme
Board of Sign Review”: Reed and Its Aftermath, 125 Yale L.J.F. 359, 359 (2016).
4 In this regard, Amicus Curiae depart from Plaintiffs-Respondents, who argue that
“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.” Resp. Ten’s Cabaret Br. p. 47. Applying strict
scrutiny does not automatically mean an ordinance is invalid; rather, strict scrutiny
heightens the burden that the government must meet in order to demonstrate that
its interest is sufficiently compelling and that the regulation in question is
sufficiently tailored to that interest. Reed, 135 S.Ct. at 2231. In this regard, Reed
merely requires this Court to hold the City to this heightened burden; it does
mandate that the Court invalidate this, or any, ordinance absent an opportunity for
the municipality to demonstrate that it has complied with the First Amendment.
See, e.g., Brickman v. Facebook, Inc., 2017 WL 386238, at *6 (N.D. Cal. Jan. 27,
8
Plaintiffs-Respondents explain, the 2001 Amendments distinguish between types
of businesses based upon the content of the expression they provide. See Resp.
Ten’s Cabaret Br. pp. 39-48. The Court must accordingly apply strict scrutiny to
the City’s attempts to regulate these businesses and the constitutionally-protected
speech at issue here.
II. Even If The Constitutionality Of The 2001 Amendments Is Analyzed
Under Intermediate Scrutiny, The City Failed To Meet Its Burden At
Step Three Of The Alameda Books Burden-Shifting Test.
Even if the Court determines the 2001 Amendments to be content-neutral
such that strict scrutiny does not apply under Reed, the Court must still hold the
City to its burden at step three of Alameda Books burden-shifting. This burden is
significant: if the business attacking governmental regulations succeeds in casting
doubt on the city’s secondary effects rationale, the burden then shifts back to the
government “to supplement the record with evidence renewing support for a theory
that justifies its ordinance.” Alameda Books, 535 U.S. at 439 (emphasis added).
Courts are not required to defer to the city’s findings at this stage, as the
government’s burden at step three is higher, and may well include providing
empirical evidence to support its position. Alameda Books, 535 U.S. at 439.
2016) (observing that strict scrutiny is not “strict in theory, but fatal in fact,” and
that regulation is capable of surviving strict scrutiny review).
9
There is little case law explaining the city’s burden at step three of Alameda,
perhaps due in part to both the novelty of the burden-shifting framework and the
fact that cities often fail at step one and businesses often fail at step two. See, e.g.,
Peek-A-Boo Lounge v. Manatee County, 337 F.3d 1251 (11th Cir. 2003). The only
appellate decision directly discussing the government’s burden at step three is
Judge Ebel’s concurring opinion in Abilene Retail No. 30, Inc. v. Bd. of Comm’s of
Dickinson County, Kan., 492 F.3d 1164, 1188 (10th Cir. 2008), which was adopted
by the majority as an alternative basis for the outcome. Id. at 1167. When the
burden shifted back to the government in that case, it presented evidence attacking
the credibility and conclusions of the adult business’ expert, but did not present
additional studies or theories other than the ones it had considered in adopting the
challenged ordinance. Id. A similar limitation on the City’s evidentiary
presentation at step three should apply here. Indeed, it makes little logical or
procedural sense to permit the City to introduce entirely new secondary effects or
entirely new evidence demonstrating those secondary effects at the final phase of
the burden-shifting framework. To do so would be to eliminate the business’
ability to cast doubt on the government’s rationale, an aspect of the analysis the
Supreme Court held integral to the First Amendment in Alameda. See Alameda
Books, 535 U.S. at 438-39.
10
In addition, it is clear that the City must have actually considered the
evidence it submits to the Court at step three of Alameda burden-shifting. To be
clear, in determining whether an ordinance that restricts speech constitutes a valid
time, place, and manner restriction under City of Renton v. Playtime Theaters, Inc.,
475 U.S. 41 (1986), the Supreme Court has consistently limited its inquiry to
evidence that was actually before the legislative body at the time the ordinance was
enacted. For example, in Renton itself, the Court considered whether the City of
Renton’s pre-enactment reliance upon studies conduct by Seattle and other
municipalities was reasonable. Renton, 475 U.S. at 44, 51-52. Answering that
question in the affirmative, the Court reviewed only the evidence actually
considered by Renton in adopting its ordinance, and not the plethora of other
outside information that could ostensibly support the city’s reasoning. Id. The
Court took a similarly narrow approach in City of Erie v. Pap’s AM, 529 U.S. 277,
296-97 (2000), analyzing only the legislative predicate actually relied upon by the
city in banning public nudity. The Court’s ruling in Alameda also addressed the
applicability of a Los Angeles study that predated and precipitated amendments to
the city’s adult business ordinance. See Alameda Books, 535 U.S. at 430-32.
While the Court did not specifically limit its newly-announced burden-shifting test
to evidence in the record at the time of enactment, there is no indication in
Alameda or elsewhere that the Court intended to depart from its tradition of
11
including only pre-enactment evidence in Renton analysis. In fact, to the extent the
Court confronted the question at all in Alameda, it indicated that it was not altering
the analysis required by Renton. Id. at 440-41 (“Justice Souter would have us
rethink this balance, and indeed the entire Renton framework.... We think this
proposal unwise.”).
Not surprisingly, given this history, the vast majority of appellate courts to
consider the question of whether a city is permitted to rely upon evidence at trial it
did not consider in enacting the challenged ordinance have answered that question
in the negative. See, e.g., D.H.L. Associates, Inc. v. O’Gorman, 199 F.3d 50, 57-
58 (1st Cir. 1999); Hickerson v. City of New York, 146 F.3d 99, 105 (2d Cir. 1998);
11126 Baltimore Blvd. v. Prince George’s County, Md., 886 F.2d 1415, 1423 (4th
Cir. 1989); SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1274 (5th Cir. 1988); Ben’s
Bar, Inc. v. Village of Somerset, 316 F.3d 702, 725 (7th Cir. 2003); Peek-A-Boo,
337 F.3d at 1268; but see Phillips v. Borough of Keyport, 107 F.3d 164 (3d Cir.
1997). The Second Circuit recently joined with this majority in restricting
Alameda analysis to evidence actually presented to and considered by the
legislative body. See White River Amusement Pub v. Town of Hartford, 481 F.3d
163, 171 (2d Cir. 2007).
12
At issue in White River Amusement Pub was the validity of Hartford,
Vermont’s anti-nudity ordinance. Id. at 165-66. Prior to enacting the ordinance,
the selectboard as a whole considered three similar ordinances adopted by
neighboring towns and two letters from the town attorney indicating that the
federal court had upheld an identical ordinance, and several selectboard members
discussed the secondary effects of adult businesses with their constituents. Id. at
172. Without explicitly employing the Alameda framework, the court held that
this presentation was insufficient to establish a substantial governmental interest
under Renton. Id. at 173. The court initially criticized the town for not actually
reviewing evidence of secondary effects when it was aware that such evidence
existed. Id. The court then discounted whatever vague information the two
selectpersons who interviewed constituents may have gained, because that
evidence was not passed on to the selectboard as a whole. Id. at 173. Absent this
testimony, the town was left with little to nothing in the way of secondary effects
evidence to support its ordinance.
Despite the fact that it did not follow the Alameda burden-shifting
framework, several important – and binding – principles can be gleaned from the
White River opinion. First, it is clear that only evidence that was actually
considered by the legislative body is relevant to the question of whether the
challenged ordinance is narrowly tailored to address a substantial governmental
13
interest. Id. at 172-73. Second, only pre-enactment evidence of secondary effects
is relevant to the Renton inquiry. Id. at 171. Thus, read in combination with the
Supreme Court’s tradition of analyzing the evidence that was actually relied upon
by a city in adopting an adult business ordinance, White River mandates that step
three of Alameda be limited to pre-enactment secondary effects evidence. The
City has submitted no such evidence here; thus, its attempt to satisfy step three of
Alameda necessarily fails.
In addition, the members of the legislative body must have actually received
and reviewed the evidence submitted at stage three of Alameda for the evidence to
be valid, a further deficiency in the City’s record here. Consistent with White
River, a local government seeking to justify its zoning restrictions on the basis of
the secondary effects doctrine must further demonstrate: 1) that the drafters of the
ordinance relied upon studies of secondary effects, and 2) that a majority of the
city council members received some information about the secondary effects.
Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255, 1259 (5th Cir.
1992). Where one governmental official has been vested with the responsibility of
gathering and reviewing secondary effects studies, but does not pass the studies
onto the entire legislative body, the city fails to meet its burden. See, e.g., White
River, 481 F.3d at 173. For example, in Doctor John’s, Inc. v. City of Sioux City,
305 F.Supp.2d 1022, 1030, 1038 (N.D. Iowa 2004), the city planner was vested
14
with the responsibility of reviewing outside secondary effects studies, but never
communicated the results of those studies to the members of the city council. The
court held that Sioux City had not met its burden at step one of Alameda, because it
could not demonstrate that the council members who actually passed the ordinance
had any evidence whatsoever that adult businesses cause secondary effects. Id. at
1038. This conclusion was supported all the more by the fact that the plaintiff
intended to operate a couples-oriented retail store with a small percentage of adult
product. Id. Because the legislative body that enacted the ordinance had no basis
upon which to conclude that adult businesses in general, much less businesses with
a minority of their inventory in adult merchandise, generate unwanted secondary
effects, the ordinance was invalid. Id.
In addition, where a city council reviews and relies only upon summaries of
studies and not the studies themselves, the city cannot later claim it relied upon the
experiences of other jurisdictions in adopting a secondary effects rationale. See,
e.g., Clark v. City of Lakewood, 259 F.3d 996, 1015-16 (9th Cir. 2001). In Clark,
the City of Lakewood assembled a task force that met privately to research and
address the question of whether adult businesses cause secondary effects. Id. at
1002. The task force then prepared a report discussing what it perceived to be the
common secondary effects that result from adult uses. Id. Only this report and a
suggested ordinance prepared by the task force were forwarded to the city council,
15
and the council as a whole did not obtain or review the studies and evidence
underlying the task force’s report. Id. at 1015-16. When the court later discounted
the task force report based on sunshine law concerns, the court restricted the city
from relying upon outside secondary effects studies to justify the ordinance. Id. at
1016. While the city may have been able to rely upon such studies when it adopted
the ordinance, the record indicated that it did not do so. Id. Although the decision
in Clark predates Alameda, it is clear from the Ninth Circuit’s ruling that a city that
does not, as a matter of fact, rely upon evidence in adopting a disputed ordinance
may not later submit that evidence as proof of secondary effects. Read in
combination with White River, Clark and Doctor John’s therefore make clear that
the only evidence that is relevant at step three of the Alameda burden-shifting
framework is that which all voting members of the legislative body actually
considered prior to adopting the ordinance in question.
As Plaintiffs-Respondents have forcefully and persuasively argued, the City
of New York failed to meet its burden at stage three of Alameda Books burden-
shifting. This is particularly the case considering that the City did not consider any
evidence, prior to adopting the 2001 Amendments, that the so-called “60/40”
businesses it sought to regulate were sufficiently similar to the 100% businesses it
previously studied to justify further regulation. The Court should accordingly
uphold the decision of the Appellate Division.
CONCLUSION
For the foregoing reasons, Amicus Curiae First Amendment Lawyers
Association urges the Court to affirm the decision of the Appellate Division, First
Department declaring the 2001 Amendments to the City of New York's zoning
code unconstitutional under the New York Constitution.
Dated: Smithtown, New York
March 17, 2017
OF COUNSEL:
Yours, etc.,
HOWARD E. GREENBERG, ESQ., P.C.
Attorneys for First Amendment
Lawyers Association, amicus curiae
180 East Main Street, Suite 308
Smithtown, New York 11787
(631) 982-0080
oward E. Greenberg
hgreenberg(iiJ,hgreenberg aw.net
Jennifer M. Kinsley (Ohio Bar No. 0071629)
Northern Kentucky University
Salmon P. Chase College of Law
Nunn Hall507
Highland Heights, KY 41 099
859.572.7998
Kinsleyj 1 @nku.edu
16
TO: CLERK
Com1 of Appeals
20 Eagle Street
Albany, Ne\v York 12207
liON. ZACHARY
CORPORATIO:\
OF THE CITY OF:\
, Utorneyfor Dele
t 00 Church Street
.CARTER
L SEL
\rORK
-'1 nnellan ts
< I
Ne\v York, New York 10007
( '1~' -.~" '.:;oo --. . ..... ) _))~)--~ )
ERICA DUBNO, ESQ.
FAHRINGER & DUBNO
"1ttorneysfor Plain
JOJ 1'1erchandise
767 Third Avenue
\pondent
ew York, Ne\\
(212) 31 9-5 3 51
J 7
ED,VARD S. RUDOFSKY
ZANE AND RUDOFSKY
Attorne1·s (or Plaint(ffs-Respondents
Ten's Cuba ret Inc .. eta!.
601 \Vest 26th Street, # 1315
ew York, New York 1 1
(212) 245-2222
.:\lartin 1\'fehler, Esq.
M chler & Buscemi
Co- Counsel for Plaintiffs-Respondents
Ten's Cabaret Inc.. a!.
305 Broadway, Suite ll 02
;\ew York, Nev. York 10007
(212) 962-4688 tel
(212) 964-0643 fax; ==~:;,::..c•: .. ' .. '.·'-'--~ ... '·.c. ,,.,"-'-'--'-'-
17
NEW YORK STATE COURT OF APPEALS
CERTIFICATE OF COMPLIANCE
I hereby certify pursuant to 22 NYCRR PART 500.1(j) that the foregoing brief was
prepared on a computer using word.
Type. A proportionally spaced typeface was used, as follows:
Name of typeface: Times New Roman
Point size: 14
Line spacing: Double
Word Count. The total number of words in this brief, inclusive of point headings
and footnotes and exclusive of pages containing the table of contents, table of
citations, proof of service, certificate of compliance, corporate disclosure
statement, questions presented, statement of related cases, or any authorized
addendum containing statutes, rules, regulations, etc., is 4332 words.
Dated: March 17, 2017
HOWARD E. GREENBERG, Es ., P.C.
180 E. MAIN STREET, SUITE 3
Smithtown, NY 11787
Tel.: (631) 982-0080
Fax: (631) 962-4688
hgreenberg@ hgreenberglaw .net
Attorney for Amicus Curiae
First Amendment Lawyers Association