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Court Decides if Dispersion of X-Rated Businesses Violates Freedom of Expression

A New York Criminal Lawyer said this proceeding raises the issue of whether the City of New York in its attempt to disperse the present concentration of x-rated businesses in certain areas of the City has violated plaintiffs’ rights of freedom of expression guaranteed under the New York State Constitution.

Plaintiffs are an adult entertainment establishment that features topless female dancers, Manhattan and Bronx residents who allege they regularly patronize adult entertainment establishments located throughout the City of New York and approximately 92 owners and operators of adult establishments.

A New York Criminal Lawyer said the plaintiffs, in these actions consolidated for the disposition of the underlying motions for summary judgment, seek to have this court declare unconstitutional the Text Amendment N 950384 ZRY to the zoning resolution of the City of New York (the “Amended Zoning Resolution”) on the ground that it unconstitutionally violates their freedom of expression guaranteed under this State’s Constitution.

The State’s highest court has ruled that New York’s constitutional guarantee of freedom of expression affords greater protection than its federal counterpart. The Court of Appeals also emphasized that “New York has a long history and tradition of fostering freedom of expression, often tolerating and supporting works which in other States would be found offensive to the community.

A Long Island Criminal Lawyer said that with regard to zoning, the Court of Appeals has recognized that municipalities have broad powers to implement land use controls to meet the increasing encroachments of urbanization on the quality of life. Preventing neighborhood deterioration is undeniably a legitimate public objective. Without stable residential and commercial neighborhoods large sections of a modern city can quickly deteriorate into an urban jungle with tragic consequences to social, environmental and economic values. Zoning when used to preserve the character of specific areas of a city is the most essential function performed by local government, for it is one of the primary means by which we protect that sometimes difficult to define concept of quality of life.

It should be noted that when a municipality’s zoning power is used to regulate lawfully operating establishments that are devoted to adult uses protected under this State’s constitutional guarantee of freedom of expression, it is against this framework that the court must determine whether the Amended Zoning Resolution violates plaintiffs’ freedom of expression.

A Queens Criminal Lawyer said the parties agree that the Court of Appeals’ decision in Islip, supra, is dispositive of the constitutional issues raised herein. However, they differ on its application to the instant case.

The test as articulated by the Islip Court to determine whether a zoning ordinance, such as the Amended Zoning Resolution, is constitutional under the State’s constitution is as follows: 1) the ordinance must be justified by concerns unrelated to speech; and 2) it must be “no broader than necessary” to achieve its purpose. Although the first prong of this two-prong test is not labeled as such, it is essentially the same type of inquiry as the “predominant purpose/secondary effects” test enunciated by the United States Supreme Court in City of Renton v. Playtime Theatres, Inc., in analyzing restrictive zoning regulations in the context of the First Amendment.

In challenging the constitutionality of the Amended Zoning Resolution, plaintiffs contend that since its language bans the distribution or exhibition of non-obscene adult entertainment, a form of protected speech, in designated areas of the City, it is a content-based regulation that purposefully regulates speech. As such, plaintiffs contend that the Amended Zoning Resolution is presumptively invalid. The City, TSBID and AARR argue that the Amended Zoning Resolution is not content based, but content neutral under Islip and Renton.

Whether the Amended Zoning Resolution is content based or content neutral is of no import. The compelling state interest analysis applicable to content-based regulations involves the same inquiry needed in determining whether the Amended Zoning Resolution is content neutral; that is whether it was justified by concerns based on adverse secondary effects, rather than speech. In Islip, it was held that while there can be no doubt that a municipality has an interest in ‘the stability and revitalization of the neighborhoods’ this interest cannot be considered ‘compelling’ without at least some showing that the form of expression to be regulated has an actual and specific deleterious effect on the community. The critical question then becomes whether the enactment of the Amended Zoning Resolution was a purposeful attempt to regulate speech or an attempt to address the alleged adverse secondary effects caused by the proliferation of adult establishments.

However, the court finds that there is nothing in the Islip Study that documents the alleged adverse secondary effects of Adult Uses in general, supports the “legislative findings” of the Ordinance, or provides information upon which a reasonable and prudent planner or local government official could reasonably believe or rely upon in the regulation of adult entertainment establishments.

Plaintiffs contend that the Amended Zoning Resolution is broader than necessary, and, as such, is unconstitutional. The court finds this contention unavailing. The Islip Court has held that a municipality may utilize its zoning powers to address the negative effects associated with adult use businesses given the fact that such effects are not subject to direct attack. The Court deemed this approach as the “most appropriate” response to addressing the existing problems. Under these circumstances, the Amended Zoning Resolution is no broader than necessary, and does not violate the State Constitution.

The last requirement that the Amended Zoning Resolution must meet to pass constitutional muster is whether it allows for “reasonable alternative avenues of communication.” The New York standard enunciated by the Islip Court is virtually identical–whether or not “there remains ample space available for adult uses”.

The record establishes that the Amended Zoning Resolution permits adult establishments in a number of commercial and manufacturing districts and in all of the City’s five boroughs. The total available land area in which adult establishments are permitted is almost 4% of the City’s total land area. Adult establishments are allowed in districts which are also zoned to permit retail, recreational, entertainment and commercial uses.

The City also points out that very few currently operating adult establishments are as large as the 10,000 square foot useable floor area size permitted under the Amended Zoning Resolution. They also point out that the amendments do not restrict establishments which sell or display limited amounts of adult material often found at general purpose book and video stores and newsstands. They also argue that the amendments permit all the existing adult establishments to continue to operate and also permit an expansion in terms of numbers and size of establishments.

Plaintiffs argue that the amendments relegate adult establishments to remote and inaccessible areas of the City and that, after excluding sites which are not part of the relevant real estate or commercial marketplace, there is not an adequate number of potential relocation sites for those adult establishments required to relocate under the Amended Zoning Resolution. In support of their arguments plaintiffs principally rely upon McLaughlin’s affidavit.

The court disagrees that respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation. And although it cautioned against the enactment of zoning regulations that have the effect of suppressing, or greatly restricting access to, lawful speech, the court has never suggested that the First Amendment compels the Government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices

The court views that the First Amendment requires only that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city, and the ordinance before us easily meets this requirement.

Plaintiffs’ challenge of the DCP calculation that the Amended Zoning Resolution will permit the operation of 500 adult establishments is also based upon the deposition testimony of DCP’s Director of Zoning and Urban Design, who was produced for deposition pursuant to court order. Although plaintiffs characterize the o deposition as proof that the DCP analysis is nothing more than a computerized claim and that no one from the City has inspected any of the claimed alternative sites, review of the transcript and reference to the record reveals otherwise.

She testified that she supervised the staff members who prepared the calculation which was based on maps prepared by the DCP. The maps showed the permissible areas and “sensitive receptors” such as schools and churches as well as properties unlikely for commercial development. Using the maps, and excluding encumbered areas and the sensitive receptors, and allowing for the appropriate 500 foot separation zone, DCP staff members used a measuring device to estimate a citywide total of 500 potential sites for adult establishments. She stated her measurements were conservative and that they were accurate to within plus or minus 10 percent. The maps were made from tax assessment data and measured the 500 foot separation conservatively from the lot line rather than the facility on the lot. Although plaintiffs challenge this analysis because DCP failed to identify specific available sites, Her testimony established that the City’s calculation was not site specific, but an estimate of the number of potential sites in the permissible areas under the Amended Zoning Resolution. The record also established that DCP staff members, many assigned to Borough offices, were familiar with and had visited the areas of the permissible zones through their work at DCP and that she herself was familiar with certain boroughs. Although counsel for the New York Civil Liberties Union represented at the deposition that she had engaged an expert to verify the City’s method of and procedure for their calculations, the record does not contain any such expert affidavit.

The court finds no evidence on record to show that any of the affected owners have made any attempt to find or negotiate for alternative sites. One would expect that during the ten months since the passage of the Amended Zoning Resolution affected owners would investigate specific sites or engage commercial real estate brokers to assist them in locating such sites.

Plaintiffs’ challenge is based purely upon speculation and analyses based on criteria rejected by Renton. By contrast the City has demonstrated an awareness of its constitutional obligation to make adequate provisions for adult establishments while simultaneously dealing with the secondary effects created by them. A party opposing summary judgment must come forward with evidentiary proof. Merely alleging that the opposing party’s evidence in support of the motion is inaccurate, incredible or in dispute will not suffice

The court finds that the plaintiffs’ claim that additional discovery is needed so as to defeat the City’s motions for summary judgment is unavailing in view of the present administrative record that this court finds to be thorough, extensive and comprehensive.

New York’s long history and tradition of fostering freedom of expression and tolerating ideas that some may find offensive is in no danger from the Amended Zoning Resolution for the City has silenced no message. Those seeking to patronize adult establishments will be able to continue to beat a path to their doors. While x-rated businesses may no longer be located on every street corner and may no longer dominate the Times Square area, as long as the current demand for them exists their numbers will certainly not lessen.

However, the court finds the truth in the plaintiff’s contention that instant availability to pornography on demand will be eliminated from some sections of the City. It is also true that those who seek to patronize adult establishments may be minimally inconvenienced by the need to travel a bit to satisfy their desires and that the owners and operators of certain adult establishments may sustain some economic hardship as a result of the Amended Zoning Resolution.

As discussed, none of those factors render the Amended Zoning Resolution constitutionally infirm.

Accordingly, the City’s motions for summary judgment are granted, and the plaintiffs’ motions for summary judgment are denied.

Stephen Bilkis & Associates, Queens County Criminal Attorneys, Queens County Sex Crime Attorneys and Queens County Constitutional Attorneys are experts in their fields. For your questions, call our toll free number or visit any of our firm. We have a huge number of lawyers to accommodate you with your legal needs.

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