➤ GIULIANI ZONING, from p.16
adult establishments and led many
of those remaining to signifi cantly
modify their activities to avoid an
adult establishment label.
“Tracing its origins to the City’s
early 1990s crusade against adult
entertainment businesses, this
litigation has been ensnared in a
time warp for a quarter century,”
Judge Pauley wrote. “During that
interval, related challenges to the
City’s Zoning Resolution have sojourned
through various levels of
the state and federal courts.”
Pauley devoted signifi cant space
to reciting the history of that litigation,
from the initial 1995 enactment
through the 2001 amendments
and a series of judicial
decisions that culminated in a
2017 ruling by the New York Court
of Appeals that the measure is constitutional.
The US Supreme Court
denied review early last year.
This new lawsuit was brought by
Manhattan businesses that were
not considered “adult establishments”
under the 1995 Regulation
(which was construed by the courts
to exempt establishments that devoted
less than 40 percent of their
space or stock to adult uses) but
would be considered “adult establishments”
under the 2001 amendments
(which broadened coverage
to deal with alleged “sham” reconfi
gurations that the city claimed
many real adult establishments
employed to evade the restrictions
of the regulations).
The plaintiffs alleged that their
First and 14th Amendment rights
were infringed on, arguing that if
the 2001 Amendment were actively
enforced, they “would decimate
— and have already dramatically
reduced — adult-oriented expression.”
Pointing to statistics from Manhattan,
the plaintiffs argued that
the 57 adult food and drinking establishments
that existed in 2001
have been “culled to as few as 20”
and of roughly 40 forty adult bookstores
with booths only 20 to 25
still operate. Of the bookstores,
virtually none is located in “permissible
areas” as defi ned by the
regulations. If the regulations were
enforced, the plaintiffs maintained,
there would be very few places in
the city, much less Manhattan,
where such businesses could operate
— they would be restricted
to “undeveloped areas unsuitable
for retail commercial enterprises,
such as areas designated for
amusement parks or heavy industry
or containing toxic waste.”
The plaintiffs also noted that
the study of “secondary effects”
conducted by the city prior to enactment
of the 1995 measure has
never been reexamined, never
been validated in light of the rule
restricting adult uses to 40 percent
of an establishment’s space
or stock, and was based on a cityscape
radically different from what
exists today.
In deciding whether to grant
a preliminary injunction — and
noting that the city is not actively
enforcing these regulations
— the court addressed several
crucial factors: whether enforcement
would infl ict an irreparable
injury on the plaintiffs, the likelihood
the plaintiffs would succeed
in their constitutional arguments,
the balance of hardship between
the plaintiffs and the city, and the
public interest.
Assuming that the regulations,
“which purportedly impose a direct
limitation on speech,” violate
the Constitution, Pauley concluded
that the plaintiffs “demonstrated
irreparable harm.” Here, Pauley
pointed to many court opinions
fi nding that monetary damages
are insuffi cient to compensate
somebody for a loss of their constitutional
rights.
Turning to the plaintiffs’ likelihood
of success on the merits, the
judge found that the weak link
in the city’s legal posture was the
way in which the regulations, if
enforced, would reduce the number
of locations where adult establishments
could operate. Court
precedents require that regulation
of adult uses must, because of its
impact on freedom of speech, leave
“reasonable alternative channels”
for the speech to take place. At this
preliminary stage in the litigation,
Pauley said he was “skeptical” the
regulations would allow for “suffi -
cient alternative avenues of communication.”
The current map
produced by the city Department
of Consumer Protection indicates
➤ GIULIANI ZONING, continued on p.19
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