Federal appeals court freezes New York sex shop zoning law

Wednesday, March 18, 1998

New York's sex shop zoning law cannot be enforced by the city for now, a federal appeals court ruled late yesterday afternoon.

A three-judge panel of the 2nd Circuit Court of Appeals prevented city officials from enforcing the law until after the appeals process is complete or until “further order.”

The law, which arose out of city efforts to clean up Times Square, prohibits adult businesses from locating in residential areas. It limits adult businesses to certain commercial districts and prohibits such businesses within 500 feet of schools, places of worship or other sexually oriented businesses.

More than 100 adult businesses challenged the law in both state and federal courts as a violation of free-expression rights under both the state and federal constitutions. Last month, New York's highest state court upheld the law. Earlier this month a federal district court also ruled the law constitutional.

City officials indicated their readiness to immediately enforce the law, which will require the vast majority of adult businesses to relocate, effectively shutting them down.

However, the three-judge panel agreed with attorneys for the sex shop owners that the law should not be enforced before the shop owners pursue their appeal of Amsterdam Video v. City of New York through the federal courts.

The appeals court found two questions “sufficiently troublesome” to prevent enforcement of the zoning law. The court emphasized that the state court decision did not necessarily answer constitutional issues under federal law.

Secondly, the court was concerned that the adult business owners could not appeal the New York state court decision to the U.S. Supreme Court because they only dealt with issues of state law.

Beth Haroules, a staff attorney with the New York Civil Liberties Union, declared the ruling a “temporary victory.”

Haroules said that the zoning law “is surely unconstitutional and violates First Amendment rights of free expression.”

Randy Mastro, the city's deputy mayor for operations, disagrees. In a written statement, Mastro said: “This is just a preliminary review, and in an abundance of caution, this panel apparently wanted a full review of all issues, no matter how esoteric. Nevertheless, the panel expedited this appeal, which means the case will be ready to decide by late April.

“We are confident that when full review occurs, the U.S. Court of Appeals will reach the same conclusion as the 13 other judges (12 from the State Courts and one from the U.S. District Court) who have unanimously agreed that what the City is doing is legal and constitutional and should go forward.”

Louis Sirkin, a First Amendment attorney specializing in adult-zoning cases, said: “The prior decisions by the state and federal district court were disappointing. You would have hoped that the courts would have examined the law more critically under the state constitution.”

Sirkin said that “it will be very interesting to see if Times Square will remain as vibrant as it once was when and if this zoning law is enforced. The unique diversity is what makes Times Square what it is. The unique atmosphere there contributes to a real development of creativity.”

Sirkin said that while the New York case “does not set forth that much new law” or “alter what other jurisdictions have already done,” the decision will be significant simply because New York is “one of the largest areas where the zoning of adult businesses has occurred.”

In its order, the 2nd Circuit sped up the appeals process, ordering the plaintiffs to file briefs by March 27 and the city to file its brief by April 8. The court also said the case may be heard as early as April 27.