NYC gets green light on efforts to rezone red-light districts

Thursday, June 4, 1998

New York City is free to enforce its 3-year-old zoning ordinance that forces adult businesses to locate only in certain industrial areas, a federal appeals court ruled Wednesday.

The court also found that a coalition of more than 100 adult entertainment businesses in New York City cannot challenge the constitutionality of the ordinance in federal court, because the issues have already been litigated in state court.

The zoning law relegates adult businesses to certain industrial districts in the city and prevents the sex shops from locating within 500 feet of any school, day care center, house of worship or another adult business. The law will effectively close down the vast majority of sexually-oriented businesses in the city.

The plaintiffs contend the measure violates their free-expression rights under both the First Amendment of the U.S. Constitution and a similar provision in the state constitution.

Last February, New York's highest state court upheld the zoning law, finding that it was not designed to censor free expression, but to prevent certain harmful secondary effects that the businesses allegedly cause—such as increased crime, decreased property value and a reduction in the quality of life in surrounding areas.

After losing in state court, the plaintiffs pursued a claim in federal court, arguing that city officials should be prohibited from enforcing the law until the outcome of the lawsuit. However, a federal trial judge denied the request for a preliminary injunction in March, writing: “Plaintiffs have not shown that they did not have a full and fair opportunity to litigate ably and vigorously in the state courts.”

In Amsterdam Video, Inc. v. City of New York, the U.S. Court of Appeals for the 2nd Circuit agreed with the federal trial court judge. The appeals court wrote: “Although at the heart of this litigation is a controversy over free expression, plaintiffs have already presented their free-speech claims to the New York courts. The only question before us is whether the New York courts' rejection of plaintiffs' state constitutional claims forecloses plaintiffs from relitigating, in the form of a First Amendment claim in federal court, the same issues that were resolved against them in state court.”

The adult businesses argued that they should be allowed to pursue their claims in federal court, contending that federal courts apply a stricter standard on regulations impacting speech than state courts. However, the 2nd Circuit rejected this argument as “unavailing.”

The appeals court concluded that “plaintiffs had a full and fair opportunity to litigate these issues in state court.”

Leonard Koerner, Chief Assistant Corporation Counsel for the city, said: “Obviously, we are very pleased with the court's decision. The court was right on the mark in finding that the plaintiffs had a full and fair opportunity to litigate these matters in state court, and its decision was supported by U.S. Supreme Court precedent.”

Ivan Alter, a New York First Amendment attorney who is challenging the law in a separate lawsuit, said: “The decision by the 2nd Circuit is troubling because the case originated in federal court, and when the federal court transferred the state claims to state court, the federal judge specifically retained jurisdiction over the federal constitutional claim.

“I find this decision to be entirely result-oriented. The only explanation is that the judiciary worked backwards to reach its decision,” Alter said.

The 2nd Circuit's opinion said that city officials could start enforcing the zoning law immediately, however, due to federal court rules the law cannot be enforced until 21 days after the decision.

In the meantime, Herald Price Fahringer, the lead attorney for the adult entertainment plaintiffs, has said he will appeal. He told The New York Times: “I have never for a moment lost confidence in our constitutional claims and intend to pursue them all the way to the Supreme Court if I have to.”