New York’s highest court upholds sex shop zoning law

Thursday, February 26, 1998

New York's State Court of Appeals has unanimously upheld New York City's three-year-old sex shop zoning law which will effectively close down the vast majority of adult businesses in the city.

The law, which consists of several amendments to the city zoning code, include an array of restrictions on where adult businesses can locate in the city. Some of the major provisions include: (1) limiting adult businesses to certain commercial districts; (2) prohibiting businesses within 500 feet of schools, churches, day care centers and other adult businesses; and (3) a myriad of restrictions on the size and placement of business signs advertising the adult businesses.

City officials proposed these measures in 1995 after conducting several studies which allegedly link the rise in sexually-oriented establishments to certain harmful “secondary” effects” these places cause, such as “increased crime rates, depreciated property values and deteriorated community character.”

More than 100 adult shop owners sued in state court, contending the zoning laws violated free expression rights under both the New York Constitution and the First Amendment of the U.S. Constitution.

The state courts retained authority to settle the state constitutional claims, but the federal constitutional claims were removed to federal court. In October of 1996, a lower state court determined the zoning changes did not violate free expression rights.

On appeal, the New York Court of Appeals agreed in Stringfellow's of New York, Ltd. v. City of New York.

The threshold issue, according to the reviewing court, was determining the “predominant purpose” for the legislation.

The court had to answer “whether the city's zoning amendments are purposefully directed at controlling the content of the message conveyed through adult businesses or are instead aimed at an entirely separate societal goal.”

The court determined the purpose of the legislation was to combat the negative secondary effects associated with adult businesses. According to the court, “ameliorating the negative social consequences of proliferating adult uses was the City's only goal.”

The New York Times reported that New York Mayor Rudolph Giuliani declared victory at a City Hall news conference after the decision, saying “I consider this a very big victory for our quality of life strategy. This was a highly criticized program. It was one that many people doubted would work.”

Attorneys for the plaintiffs, however, blasted the decision as antithetical to free speech. Herald Fahringer, attorney for more than 100 sex shop owners, told The New York Times: “This is a serious infringement on the right of the people of New York City to have access to a perfectly legitimate form of entertainment. That something like this could happen in the greatest and the freest city in the world is shocking.”

Marjorie Heins of the ACLU agreed that the decision “ignored the uniqueness and cultural diverseness of New York City. The court shoehorned the City of New York into the narrow legal standards of other municipalities,” she said.

“We are disappointed. We had hoped for a more searching scrutiny by the New York Court of Appeals than the Supreme Court,” Heins said.

Heins said the “court didn't take seriously either of two main requirements in this area of the law: that the legislation was truly motivated by a desire to curb adverse secondary effects and the requirement that the zoning law leave open adequate alternative places for adult businesses.”

Heins noted “the claim was originally brought in state court because the plaintiffs thought that the New York Constitution offered stronger protection than the First Amendment.”

She added that it was “unclear” as to whether the plaintiffs still have a viable claim left in federal court given the “negative factual findings by the New York Court of Appeals.”