For The People Theaters of
N.Y. v. City of N.Y.
A First Amendment Strike Against
The Empire
© Edward S. Rudofsky 2013
Brought To You By
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Ed Rudofsky
Mike Murray & Lorraine Baumgardner
John Weston & Randy Garrou
Dan Silver & Luke Lirot
Herald Price Fahringer & Erica Dubno
Mark Alonso, Martin Mehler & Chuck
Axelrod
NYC Zoning of Adult
Establishments Pre-1995
• Prior to 1995, there was no adult use
zoning in NYC.
1995 Adult Use Amendments
• Dispersal plan - ~20 permitted locations
• Applied equally to all adult uses
• Defined “adult establishment” as one that
“regularly featured” either exposure of
“specified anatomical areas” or “specified
sexual activities” in a “substantial
portion” of the premises, measured by
floor area.
• Eliminated garish signage.
1995 Amendments Upheld
Against Facial Challenge
Under NY Constitution
• Stringfellow's of New York, Ltd. v. City of
New York, 171 Misc.2d 376 (Sup. Ct. N.Y.
Co. 1996) (granting summary judgment
declaring 1995 Amendment constitutional
on their face), aff’d 241 A.D.2d 360 (1st
Dept. 1997), aff’d 91 N.Y.2d 382 (1998).
1995 Amendments Upheld
Against Facial Challenge
Under First Amendment
• Hickerson v. City of New York, 932 F.Supp. 550
(S.D.N.Y. 1996) (Pullman Abstention; remand of State
claims; stay of Federal claim);
• Hickerson v. City of New York, 146 F.3d 99 (2nd Cir.
1998) (affirming denial of preliminary injunction following
State decision and holding Federal plaintiffs collaterally
estopped by State findings of facts on essentially
identical constitutional issues despite England
reservation), cert. den., 525 U.S. 1067 (1999).
“Substantial Portion” Defined
• In order to moot “void for vagueness”
argument in Hickerson v. City of New
York, City promulgates an “authoritative
guideline” that “substantial portion” means
40% or more of customer-accessible
floor space.
Where Did City Want Us to
Believe 60-40 Came From?
• No finding of secondary effects caused by
establishments allocating less than 40% of
floor space to adult use.
• Alleged basis for 60-40 ratio was
statement in 1994 Adult Entertainment
Study that the City only studied
establishments with 40% or more of floor
space allocated to adult use.
Where Did 60-40 Really Come
From?
• Long-rumored secret deal between City
(Mayor Guiliani) and Blockbuster (Wayne
Heisinger), based on Blockbuster’s
business need to devote <40% of floor
space to the sale of R-rated videos (which
would constitute “adult” material under the
Amended Zoning) leading to insertion of
statement in Adult Entertainment Report
on which 60-40 was later based.
The City’s Claim of “Sham
Compliance”
• General compliance followed Hickerson, with many
existing establishments conforming to the 60-40 spatial
ratio, thereby continuing to offer adult entertainment at
the same location as before the 1995 Amendments were
adopted.
• This was politically anathematic to the City, as it made a
farce out of the Guiliani promise to “push these
businesses into the ocean.”
• The City (directly contrary to its “alternative avenues”
argument on the facial attack) then took the position that
“mere spatial compliance” with the 60-40 rule was “sham
compliance” and brought nuisance abatement cases on
that theory.
“Mere Spatial Compliance” Is
Compliance
• City of New York v. Les Hommes, 94
N.Y.2d 267 (1999), rev’g 258 A.D.2d 284
(1st Dept. 1999)
• City of New York v. Dezer Properties, Inc.,
95 N.Y.2d 771, rev’g 259 A.D.2d 116 (1st
Dept. 1999)
The Empire Strikes Back
• The 2001 Amendments: “Substantial
Portion” (60-40)
– eliminated for live entertainment
– onerously regulated for book & video stores
(placement of stock & cash registers, ratio of
sales and income, etc.)
• No new secondary effects study.
The Rebel Alliance Forms
• Six Cases Are Brought:
– Three in State Court, alleging facial and as applied
violations of the New York Free Expression Clause.
(Fahringer/Dubno, Alonso & Mehler.) Assigned to
liberal judge – Justice Louis York.
– Three in Federal Court, alleging facial and as applied
violations of the First Amendment. (Rudofsky/Axelrod,
Silver/Lirot, Weston/Garrou.) Assigned to
conservative judge – Alan Schwartz.
Enforcement Is Stayed
• 2001 Amendments stayed by TROs &
then preliminary injunctions in State
Cases.
• Already pending motions for preliminary
injunction in Federal Court withdrawn in
light of State stay of enforcement – no
longer any threat of imminent irreparable
harm.
Federal Cases Held In Abeyance
• The Federal cases were re-assigned to yet
another conservative judge, William
Pauley, upon the death of Judge
Schwartz. Given the likelihood of a better
result in State Court, the Federal plaintiffs
then agreed to put the Federal cases on
“administrative suspension” and ultimately
to dismissal with the right to reinstate in
the event of an unfavorable decision in the
State cases.
Round 1 - Victory
• For People Theatres of N.Y., Inc. v. City of New
York, 1 Misc.3d 394 (Sup. Ct. N.Y. Co. 2003);
Ten's Cabaret, Inc. v. City of New York,
1 Misc.3d 399 (Sup. Ct. N.Y. Co. 2003) (both
holding 2001 Amendments unconstitutional on
their face based on the City’s lack of any proof of
secondary effects attributable to 60-40’s and the
plaintiffs’ showing (McLaughlin, Linz, etc.) that
60-40’s do not cause secondary effects (even if
prior case law requires the conclusion that 100%
locations do).
Round 2 - Defeat
• For the People Theatres of N.Y. Inc. v.
City of New York, 20 A.D.3d 1 (1st Dept.
2005) (reversing and holding 2001
Amendments constitutional on their face)
Round 3 – Tactical Victory
• For the People Theatres of N.Y., Inc. v.
City of New York, 60 N.Y.3d 63 (2005)
(reversing Appellate Division and remitting
to trial court for Stage III Alameda Books
hearing on whether essential nature of 6040’s was significantly different from 100%
locations studied in 1994) (5-4 decision
over dissent that no hearing was required
and original judgment of unconstitutionality
should be reinstated as a matter of law).
Round 4 – Another Defeat
• People Theatres of NY, Inc. v. City of New York, 27
Misc.3d 1079 (Sup. Ct. N.Y.Co. 2010) (holding 2001
Amendments constitutional after trial). (Note:
companion decision in Ten’s Cabaret v. City of New York
is unreported.)
• Kudos to Mike Murray, who expertly tried the case for
our clients, and to expert witnesses Dan Linz (no
measurable criminogenic effects of 60-40’s), Lance
Freeman and Bryant Paul (no measurable impact of 6040’s on property values), and Michael Anastas (for
conducting our suggested study of whether subdued
signage reduced/eliminated perception of secondary
effects).
Round 5 – The Rebels CounterAttack
• People Theatres of N.Y. Inc. v. City of
New York, 84 A.D.3d 48 (1st Dept. 2011)
(reversing and vacating judgment of
constitutionality and remanding for
detailed secondary effects findings and redecision after intermediate scrutiny)
Round 6 – The Death Star
Explodes!
• For The People Theatres of NY, Inc. v.
City of New York, ___ Misc.3d ___, 954
N.Y.S.2d 801 (Sup. Ct. N.Y. Co. 2012)
(making favorable findings, finding Linz
credible and McCleary incredible, and
holding 2001 Amendments
unconstitutional on their face)
The McCleary Findings
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89. The City's expert witness, Dr. Richard McCleary, is not found to be
credible by this Court which accords no weight to his testimony.
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90. Dr. McCleary is a statistician who holds no degrees in criminology or
urban planning or studies.
•
91. He conducted no studies, except for a study in which he received a very
poor 13.2% return rate from real estate brokers, nor was he aware of any
other studies, except for the studies of Drs. Freeman and Linz.
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92. He merely offered his ipse dixit opinions that adult clubs draw from a
wide geographical area and cause an increase in crime in surrounding
areas, patrons tend to carry cash, patrons are reluctant to call police when
they are criminally victimized because of the stigma attached to frequenting
such establishments. Because of the lack of any real world
corroboration for those opinions, the Court rejects them.
[Emphasis added.]
The “Dicta”
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“While these reflections form no part of this decision, this Court cannot
understand how an 18 year old study of the negative effects of the 100%
entities can be applied to the current 60–40 entities without determining the
actual negative secondary effect of these institutions today. It was primarily
the increased crime rates that spawned the 1994 DCP study and led to the
legislative changes in 1995 that this record shows was successful. New
York State has a storied reputation for protecting freedom of speech. Its
courts have consistently held that the content of speech cannot be
regulated (People v. Mobil Oil Corp., 48 N.Y.2d 192 ... [1979]). What can
be regulated are the negative secondary effects of the legislation in issue by
virtue of the exercise of the police powers (Stringfellow’s of N.Y. v. City of
New York, 241 A.D.3d 360 ... [1st Dept. 1997]). Here, no investigation was
conducted by the defendants. Instead, there was a fictionalized reliance on
the 1994 study. Without an actual study, the 2001 legislation should have
been struck down, as urged by the three-judge Court of Appeals' minority
opinion in For The People, at 6 N.Y.3d 88 ....”
[CONT’D ON NEXT SLIDE]
The “Dicta” (Cont’d)
• “Isn't [- -] without a finding of negative
secondary effects generated by the
current 60–40 entities [- -], what the City
is really regulating ... the content of
expression, clearly a violation of the
plaintiff's rights to freedom of speech
(People v. Mobil Oil Corp., 48 N.Y.2d 192
... [1979])?” [Emphasis added.]
The Present Status
• The City has served a Notice of Appeal, but has
not as yet perfected its appeal. The time to do
so will expire in July 2013.
• The judgment is arguably “automatically stayed”
pending the City’s appeal (there is a split of
authority on this point), but the City has made no
effort to enforce the 2001 Amendments pending
appeal.
• If necessary, an application will be made to
vacate the stay.
With Thanks
• To Dan and especially John & Randy for
their expertise and hours spent analyzing,
making and honing arguments & editing
briefs.
• To Marty Mehler, a good friend and fine
lawyer, who brought the Pussycat Lounge
case at our request (when Mark Alonso
sued only on behalf of Ten’s).
The Struggle Continues
May The Force Be With Us.