Appeals court hears dispute over New York sex-shop zoning law

Thursday, April 30, 1998

The battle over the constitutionality of New York City's 3-year-old sex-shop zoning law continued Wednesday before a federal appeals court.

The law restricts the location of adult businesses, including limiting them to certain commercial districts and prohibiting them within 500 feet of schools, churches and other adult businesses.

If implemented, the law would effectively close down the vast majority of sexually oriented businesses in the city.

Plaintiffs, who consist of more than 100 adult businesses, contend the measure stifles free-expression rights under both the First Amendment and the state constitution.

Last February, New York's highest state court affirmed a lower court ruling that the law was constitutional. The state court ruled the zoning law was not designed to censor expression but to combat certain harmful secondary effects allegedly caused by the businesses—such as decreased property values and increased crime.

Last March a federal district court judge dismissed the plaintiffs' claim in federal court, mainly because the judge said the constitutional issues had already been determined by the state courts. The judge wrote: “Plaintiffs have not shown that they did not have a full and fair opportunity to litigate ably and vigorously in the state courts.”

Now the case is before the U.S. Court of Appeals for the 2nd Circuit. On March 17 the appeals court temporarily prevented the city from enforcing the law pending the outcome of the federal process.

At Wednesday's hearing the parties disputed whether the decisions by New York state courts in effect prevented the adult businesses from continuing to challenge the law in federal court.

Erica Dunbo, an associate of the sex shops' lead attorney Harold Fahringer, said that Federal district court Judge Miriam Cedarbaum “denied our motion for a preliminary injunction based solely on the fact that, according to her, the issues raised by our claims had already been litigated in state court.

“However, we were very vigilant to preserve our federal claim when we litigated our claims in state court,” she said. “When we originally commenced this action over two years ago in state court, the city removed us to federal court. At that time Judge Cedarbaum said most of the claims had to be litigated in state court, but she retained jurisdiction over our First Amendment claim under the federal constitution.”

The city takes a different view. Lorna Goodman, a spokeswoman for the city's Corporation Counsel, said: “We are confident that when the court looks at the legal arguments in the case, they will uphold the zoning law. They have already had multiple hearings and have lost in both state courts and a federal court. How many bites of the apple are they going to get?”

Neither side offered a prediction as to when the federal appeals court would issue a ruling.