New York’s Highest Court Unanimously Revives Strict Giuliani-Era Zoning Regulations for NYC Porn Shops and Strip Clubs

In the adult entertainment constitutional challenge equivalent of Dickens’s Jarndyce and Jarndyce, the New York Court of Appeals may have finally ended decades of litigation over restrictions on the location of adult businesses in New York City. The state’s highest court, albeit with one vacancy and Chief Judge Janet DiFiore not participating, unanimously reversed a divided panel of the Manhattan-based Appellate Division, concluding that the 2001 amendments, passed by the City Council to close loopholes in an earlier zoning scheme, did not violate the First Amendment. For the People Theatres of N.Y. Inc. v. City of New York, 2017 WL 2427295 (N.Y. June 6, 2017). Notably, the three-judge majority overturned below included Justice, now-Judge, Paul Feinman. The week after this ruling, Governor Andrew Cuomo nominated Feinman to fill the vacancy on the Court of Appeals and the State Senate swiftly confirmed him on June 22; he is the first openly gay jurist to rise to that bench.

As part of former New York City Mayor Rudolph Giuliani’s efforts to “clean up” the city when he took office and push topless bars and adult video stores out of heavily-trafficked areas, the City Council in 1995 banned adult establishments from operating at all in certain areas, including residential neighborhoods, and within 500 feet of another sex-related business, a school, or a house of worship. From the beginning of the litigation that soon ensued, the city has relied on a 1994 Department of City Planning study identifying the negative secondary effects of adult establishments on the nearby quality of life, including a downward pressure on property values and an increased crime rate in areas where the businesses are most concentrated. The original zoning regulations survived constitutional freedom of expression challenges that went all the way to the Court of Appeals and the Second Circuit in 1998. See Stringfellow’s of New York, Ltd. v. City of New York, 694 N.E.2d 407 (N.Y. 1998); Buzzetti v. City of New York, 140 F.3d 134 (2d Cir. 1998), cert. denied, 525 U.S. 816 (1998).

For the full story, access the Summer 2017 issue of LGBT Law Notes.