Judge halts sex club’s attempt to avoid shutdown

Wednesday, August 12, 1998

(Editor’s note: An earlier version of this story mischaracterized Justice Stephen Crane’s statement about the 40% rule.)

A New York City judge Tuesday blocked a sex club’s attempt at an end run around city efforts to shut down burlesque theaters, sex shops and adult video stores.

Ruling in a case involving a nude dance club, Justice Stephen Crane said the club owner’s attempt to circumvent application of the city’s zoning law was a sham.

Under the City Planning Commission’s interpretation of the zoning law, a business that has less than 40% of its business devoted to adult uses, does not qualify as an “adult establishment” within the meaning of the zoning law.

However, Crane said that the club owner’s attempt to comply with the 40% rule was “nothing but a ruse” and “transparent.”

Specifically, Crane ruled on a case involving the Harmony Theater, a club that had installed Japanese-style screens to separate clothed dancers from nude ones. Police claimed that adult entertainment such as lap dancing often occurred on both sides of the screens.

The screen “is the rankest effort by Harmony to thumb its nose at the court,” Crane said. “It offends me deeply. Using a screen is nothing but a sham.”

Crane said the 40% rule is not a city statute but a poor interpretation of city zoning laws, which greatly restrict locations available to establishments with a “substantial portion” of adult entertainment.

Herald Price Fahringer, lawyer for more than 100 adult establishments in New York, said the business owners relied on city officials who said they could count on the 40-60 guideline.

“These clubs have spent thousands of dollars complying with 40-60,” Fahringer told the New York Post. “We need guidelines. We can’t have judges making ad hoc rulings.”

City lawyer Dan Connolly defended Crane’s decision.

“The zoning law doesn’t say 40-60,” Connolly told The Post. “What will rule the day is the totality, that is to say, what is the commerce going on in the store?”