By: Paul Goldberg, Staff Writer

NEW YORK, NY – New York City could begin enforcing a 2001 Law to reduce the number of adult entertainment business from operating with in the city limits.  Business such as adult video stores, adult novelty stores, adult bookstores and Strip Bars, without violating said businesses owners’ First Amendment rights, according to New York State’s highest court which ruled unanimously on Tuesday June 6 in a 6-0 decision by the state Court of Appeals.

With this vote of 6-0, the State Appeals Court reversed a lower court’s ruling and handed the city a major victory in what has turned into a 20 year long effort to stop what many are calling the proliferation of “adult entertainment” establishments.

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“It is evident as a matter of law that the city met its burden of showing that the adult establishments continued to have a predominant focus on sexually explicit materials and activities,” making the law “facially constitutional,” wrote Judge Eugene Fahey (pictured right), of the New York State Court of Appeals.

Attorney Erica Dubno who represents a number of adult oriented businesses as well as Attorney Edward Rudofsky, who represented the Ten’s Cabaret as well as the Pussycat Lounge, both said separately that they were disappointed by the court’s decision and would review their the ruling and discuss with their clients their future options.

For those in the adult entertainment business know this case quite well as the fight first started in 2001 when then Mayor Rudolph Giuliani push to target the so called quality-of-life issues.

The Law was passed in order to fill a so called gap created six years earlier, when the New York City Council banned adult dancing clubs and adult video stores from operating in residential and most commercial areas throughout the city.  Not only that, the law also saw the debut of the ordinance where an adult entertainment establishment cannot operate within 500 feet of similar adult entertainment businesses, schools and places of worship.

When adult entertainment businesses fought back against the new restrictions in court, New York City in 1998, created the “60/40” test, deeming businesses “adult” if they stocked at least 40 percent of their inventory with sexual content.

However a new problem took place as many businesses were busted engaging in “falsifying” compliance by stocking PG-rated videos in back areas while maintaining their targeted customer base with X-rated movies up front.

This of course angered many politicians in the city so in 2001, the city council declared that any businesses meeting specific criteria, such as having topless dancers or adult movie booths in their stores or establishments, would automatically be labeled an adult entertainment business.  By doing this, the city would have crippled the adult businesses that were paying huge taxes, employing thousands of workers who would have found their jobs being lost because the businesses would either have to move or go under. Let us not even talk about the loss revenue the city and state would have lost out on.

However, in 2012, a Manhattan judge declared the new Law unconstitutional in August 2012.  When the city attempted to appeal the judge’s ruling, it was affirmed in a 3-2 state appeals court ruling in July 2015.

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Judge Fahey, however, said…”The appeals court erred by adopting a “rigidly mechanical” approach that defeated the city’s substantial interest in curbing sexually explicit businesses. It ignored the reality that “quintessentially sexual activity” such as lap dances, or topless dancing for 16 to 18 hours a day, could qualify businesses as adult establishments.

Therefore, The case is For the People Theaters of N.Y. Inc et al v. City of New York, New York State Court of Appeals, No. 59.

Order reversed, without costs, and judgment granted in favor of the City of New York in accordance with the opinion herein.   Opinion by Judge Fahey. Judges Rivera, Stein, Garcia and Wilson concur. Chief Judge DiFiore took no part.  Decided June 6, 2017

Review the Written Decision Here

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