WASHINGTON — The U.S. Supreme Court has declined to hear an appeal by a group of adult businesses of a lower court’s decision allowing enforcement of a 2001 zoning law aimed at forcing adult retail stores out of most parts of New York City.
As XBIZ reported in November, the adult businesses challenging the law petitioned the Supreme Court to hear their appeal after the U.S. Court of Appeals for the 2nd Circuit repeatedly ruled against them in the case and gave New York City the green light to enforce the zoning law.
There has been a protracted three-decade legal saga surrounding New York City’s Zoning Ordinance. As originally enacted, the law prohibited adult entertainment businesses in most areas, notably including a swath of midtown Manhattan as part of the effort to “clean up” Times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. It defined 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 more than two decades as adult businesses challenged its constitutionality, claiming it violated their rights to free speech and equal protection.
In 2024, 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 Supreme Court’s refusal to hear an appeal represents the final step in the legal process, leaving no further legal recourse for the adult businesses.
Attorneys Erica Dubno, Jeff Nye and Ed Rudofsky, who served as co-counsel for the petitioners, told XBIZ, “The Supreme Court's denial of review ends decades of litigation. We believe the constitutional issues presented by our clients were worthy of the Supreme Court's consideration. However, we are all aware that the Court receives thousands of petitions each year and can only consider a limited number of cases.”
How enforcement will play out and how it may impact adult businesses in New York City remains to be seen.
Andrew Rudansky, a rep for New York City's Department of Buildings, which enforces zoning rules, told XBIZ, "The recent decision by the US Supreme Court to not review this case affirms what we knew along: the City's zoning provisions for adult establishments are lawful and valid. We are currently reviewing these regulations and discussing potential next steps."
Complicating the situation is the fact that, even in the parts of the city where zoning regulations permit adult businesses, additional regulations mandate a minimum distance from adjacent residential areas, schools, other adult establishments and houses of worship. This confluence of rules could make it extremely difficult for adult stores to relocate.
