Posted by: Patricia Salkin | October 11, 2019

Fed. Dist Court in NY Grants Preliminary Injunction to Owner of Gentlemen’s Club from City of New York Zoning Resolution Applying to Adult Establishments

This post was authored by Matthew Loeser, Esq.


In this case, plaintiffs, the owners and operators of gentlemen’s cabarets (strip clubs) and adult bookstores primarily located in Manhattan, challenged the constitutionality of amendments to sections of the Zoning Resolution of the City of New York that defined and applied to adult establishments. Plaintiffs sought to preliminarily enjoin the City, the Mayor of the City, and the City’s Commissioner of Buildings from enforcing the amendments, which would subject them to the City’s stringent zoning and permitting scheme for adult establishments. Plaintiffs further sought to enjoin Defendants from enforcing the 2001 Amendments, as well as a judgment declaring the 2001 Amendments to be facially unconstitutional.


Defendants did not dispute the presumption that a movant can establish irreparable harm in the absence of injunctive relief where the claims involved an alleged deprivation of a constitutional right. Here, however, the court found that the City’s adult-use regulations were “properly analyzed as a form of time, place, and manner regulation” because they did not categorically ban adult establishments, but principally restricted their location. The court next determined City’s adult-use regulations were content-neutral. Even though the 1995 Regulations and the 2001 Amendments only applied to adult establishments, they were justified by the desire to reduce the adverse secondary effects of adult establishments, based on a fair read of the City’s Department of City Planning (“DCP”) 1994 “Adult Entertainment Study,” a 1995 CPC Report, and a 2001 CPC Report. As such, the court applied intermediate scrutiny to analyze the 2001 Amendments.


Under intermediate scrutiny inquiry, the court noted the narrow tailoring requirement would be satisfied so long as the regulation promoted a substantial governmental interest that would be achieved less effectively absent the regulation. Here, defendants’ interest of reducing the negative secondary effects of establishments with adult-oriented businesses qualified as a “substantial governmental interest.” Nevertheless, plaintiffs argued that the 2001 Amendments failed to satisfy the narrow tailoring requirement based on the lack of evidence of new or continuing secondary effects from 60/40 establishments. The court rejected this position, finding the defendants only needed to demonstrate that the 2001 Amendments promoted the City’s interest in reducing secondary effects more effectively than if they did not exist.


The court also rejected plaintiffs’ contention that the availability of adequate sites must be considered on a county-by-county basis. Specifically, plaintiffs’ argued that defendants were required to demonstrate the presence of sufficient alternative channels for adult expression in Manhattan. By borough, the DCP identified 36 lots in Manhattan, over 700 lots in Brooklyn, nearly 1,000 lots in Queens, over 550 lots in the Bronx, and over 550 lots in Staten Island that could accommodate adult businesses. Conversely, plaintiffs’ expert, Michael Berzak, testified that the potential alternative sites for adult businesses to relocate had substantially diminished since 1995, and there was no reason to believe that this result would not also be found in the outer boroughs. Based on this evidence, the court found that, at this stage in the litigation, plaintiffs sufficiently demonstrated the enforcement of the 2001 Amendments would deny them adequate alternative channels to offer their adult expression.


Lastly, several of the adult club plaintiffs and adult bookstore plaintiffs submitted affidavits attesting to the hardship they would face if the 2001 Amendments were enforced, including the loss of their businesses, the potential breach of their contracts and leases, the possibility that their employees would lose their jobs, the threat of criminal prosecution, and the financial and time costs of relocation. As granting the requested relief would not result in any harm to defendants, who had already refrained from enforcing the 2001 Amendments for eighteen years, the court granted plaintiffs’ motions for preliminary injunctions.


725 Eatery Corp. d/b/a “Lace”, et. al., v City of New York, 2019 WL 4744218 (SDNY 9/30/2019)


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