NEW YORK — Industry attorney Erica Dubno, who represents a dozen New York City adult entertainment establishments under attack after finding their businesses zoned out, filed court papers last week in support of a motion for preliminary injunction against the city.
In the motion filed at Manhattan federal court, Dubno submitted a 25-page brief that summarized reasons why her clients should be allowed to operate as adult-oriented establishments — bookstores that mostly offer private-booth peep shows — in Manhattan, Queens and Brooklyn.
The dozen plaintiffs are seeking a preliminary injunction to stay enactment of a 2001 zoning resolution that restricts where businesses offering adult entertainment may be located. So far, the city has not enforced the 2001 resolution, which Dubno described as a “stale zoning ordinance.”
The 2001 zoning resolution prohibits one adult establishment from opening within 500 feet of a school, a church or another adult establishment, the suit said, making it almost impossible to open a new business in New York City.
In the brief, Dubno wrote that enforcement of the 2001 resolution would have “calamitous consequences concerning free speech and the public’s right to access a well-established form of constitutionally protected expression.”
Enforcement of the 2001 resolution violates the 1st and 14th Amendments, she wrote, because it does not provide for reasonable alternative avenues of communication and its regulation does not leave the quantity and accessibility of speech substantially intact.
“These small bookstores are already struggling through various forces including, but not limited to, escalating rents, gentrification and destruction of buildings for development,” Dubno wrote. “In addition, these bookstores — like virtually all retail stores in New York — are suffering under severe economic pressures from the Internet.
“However, the expression offered in booths is less influenced by the digital era because booths provide an old-school means by which a patron can watch erotica without anyone knowing his or her personal predilections, sexual fantasies and fetishes. Therefore, the booths are an important part of the business. And, loss of the booths will require bookstores to close or lose a critical aspect of the business."
Dubno said a preliminary injunction is in the public interest and a balancing of the equities favors the bookstores.
“After 17 years, allowing small businesses to remain in place for an additional short period of time will harm no one,” she wrote. “As developed in expert and other declarations, there is now extensive gentrification and development, including a substantial increase in median household incomes, in areas of Manhattan containing 60/40 businesses.
“There is also a marked decrease in crimes and increase in housing values in those areas. Gentrification, development, increased property values, and decreased crime, are also now evident in the outer boroughs where 60/40 bookstores have operated for years.”
Dubno also noted that the city wouldn’t be prejudiced with an injunction by continuing the state of affairs that has existed for 20 years.
“The city, which bears the burden of proof on the ultimate question of the constitutionality of enforcing its stale zoning ordinance against constitutionally protected establishments, is not likely to succeed in this action in light of extensive zoning changes and other factors. And, even if the plaintiffs must demonstrate a likelihood of success on the merits, which is disputed in this First Amendment case, there is a reasonable probability and a significant possibility the bookstores will ultimately prevail.”
The state Court of Appeals upheld the 2001 resolution last year, resulting in the adult companies reactivating their suits at the federal level.
U.S. District Judge William Pauley III is hearing the case. Dubno declined comment to XBIZ on last week's filing.
