NEW YORK — The U.S. Court of Appeals for the 2nd Circuit on Tuesday upheld a lower court’s decision to allow enforcement of a 2001 zoning law aimed at forcing adult retail stores out of most parts of New York City.
A three-judge panel issued the decision, which could severely impact adult stores’ ability to operate within the bounds of New York's five boroughs.
As XBIZ reported in February, New York 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 originally 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 was held up in litigation for the past two decades as adult businesses challenged its constitutionality, claiming it violated their rights to free speech and equal protection.
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 2nd Circuit, which this week rejected the appeal, a decision that now gives the city the green light to resume enforcement.
Even in the parts of the city where zoning regulations permit adult businesses, additional regulations mandating a minimum distance from adjacent residential areas, schools, other adult establishments and houses of worship could make it extremely difficult for adult stores to relocate.
