NEW YORK — Adult retail stores in New York City are bracing for a potential crisis as an appeals court considers whether to allow enforcement of a 2001 city zoning law aimed at forcing them out of most parts of the city.
The city's 1995 Zoning Ordinance prohibited adult entertainment businesses in most areas, notably including a swath of midtown Manhattan as part of the effort to "clean up" Times Square and adjacent areas. The law included provisions defining businesses as adult establishments if 40% or more of their area or stock involved sexual content.
A 2001 amendment eliminated that 40% rule, which the city claimed was too easy for businesses to circumvent, and instead took aim at any business that "primarily" markets adult entertainment, from strip clubs to bookstores and video stores.
That provision has been held up in litigation for the past two decades as adult businesses challenged its constitutionality, claiming it violates their rights to free speech and equal protection.
Even in the parts of the city where zoning regulations permit such businesses, additional regulations mandating a minimum distance from adjacent residential areas, schools, other adult establishments and houses of worship would make it extremely difficult for adult stores to relocate, should the amendment be enforced.
Last year, a district court judge ruled that New York would be within its rights to enforce the amendment, forcing even establishments that may have technically fulfilled the 60/40 requirement to relocate to the few areas in which such businesses would still be permitted, or to move out of the city.
The plaintiffs appealed that ruling to the United States Court of Appeals for the 2nd Circuit.
Courthouse News Service reports that 2nd Circuit Judge Steven Menashi, a Trump appointee, defended the amendment during oral arguments on Wednesday, asserting that the 2001 amendment was needed to stop adult businesses from using the 40% rule to get around the law.
“You know, a strip club that has a billiard room upstairs is still really a strip club,” Menashi told the plaintiffs' attorneys, who in turn argued that the original studies on how adult businesses impact the neighborhoods around them are now long outdated.
Menashi and the other two judges on the panel, both Biden appointees, did not immediately issue a ruling on Wednesday.
