NEW YORK CITY—On Tuesday, December 12, First Amendment attorney Erica Dubno filed a petition for certiorari with the United States Supreme Court, challenging a 2001 amendment to New York City's adult zoning laws.
The amendment established new criteria for deciding when a particular business falls under those laws—criteria Dubno says are an unconstitutional infringement on the business' rights of free speech—notably those of her client, JGJ Merchandise Corp d/b/a/ Vishans Video. The cert petition was filed in response to the New York Court of Appeals having reversed lower court decisions which had struck down the zoning reg.
The New York zoning battle began in 1995 when the city, after considering a (since debunked) "study" which indicated the presence of adult businesses cause certain "adverse secondary effects" in the surrounding community, passed the so-called "60/40 rule." That rule allowed businesses whose stock and floor space was less than 40 percent adult to continue to operate in their current locations. But in 2001, in the waning days of the conservative Rudy Giuliani administration, that zoning law was amended to do away with the floor space consideration under 60/40, but it added eight new factors to be used to determine "adultness."
"Specifically, the new definition of an 'adult bookstore' provides that a bookstore’s non-adult stock 'shall not be considered' in calculating compliance with the 60/40 Rule if any one of eight alleged 'sham' factors exist," the cert petition states, then goes on to detail those "sham factors":
"(1) The store’s layout requires customers to pass through an area with adult material to access any non-adult material;
"(2) the bookstore has booths where adult movies or live performances are available for viewing by customers;
"(3) non-adult material is paid for near where any adult material is located;
"(4) non-adult DVDs are offered for sale only while adult DVDs can be sold or rented;
"(5) the bookstore offers a greater number of different adult titles than the number of different non-adult titles;
"(6) minors are restricted from the whole store or any section with non-adult material;
"(7) the bookstore has a sign advertising adult material that is “disproportionate in size” to signs for non-adult material; or
"(8) the bookstore has a window display in which the number of adult products is disproportionate to the number of non-adult products."
But that's not all. The zoning amendment also allowed the Commissioner of Buildings to subject the business to criminal prosecution based on "[o]ther features relating to configuration and layout or method of operation, as set forth in rules adopted by the Commissioner" but which appear nowhere in the zoning ordinance itself.
"The City concededly conducted no studies or research into whether or not bookstores that fully complied with the 60/40 Rule, and have a minimum concentration (less than 40 percent) of adult material, cause any adverse secondary effects warranting stricter regulation," the cert petition states. "Instead, the City urged that it could rely upon a study conducted back in 1994 of adverse secondary effects caused by adult businesses." [Citations removed here and below.]
(That 1994 study would be one of the ones debunked by sociologist Daniel Linz in an amicus brief filed in the 1999 Supreme Court case of Erie v. Pap's AM.)
However, thanks to the Supreme Court's 2005 decision in City of Los Angeles v. Alameda Books, simply relying on that 1994 study is no longer sufficient to support the city's zoning ordinance. As the cert petition argues, Alameda Books created new criteria to be used in judging the constitutionality of zoning laws, one of which was to shift the burden of proof onto the city to present evidence that would support the rationale for its law after the plaintiff had "cast direct doubt" on its original rationale.
The cert petition then traces the path that the adult businesses took in refuting the city's original evidence for its zoning law, including studies that showed that the "presence of a 60/40 bookstore or theater within a specific area could not be linked to any weakening or decrease of property values within that area," and that "no 60/40 bookstores or theaters appeared on the NYPD’s list of hot spots for crime; no relationship between prostitution arrests and these bookstores and theaters; and no correlation between any concentration of these bookstores and theaters in a precinct and the violent felony rate."
This final evidentiary burden shift (referred to as "Stage III") led to an evidentiary trial and more appeals, with the New York Court of Appeals refusing to stay the zoning ordinance pending Supreme Court review, and even Justice Ruth Bader Ginsburg, the Supreme Court justice charged with handling federal actions related to the Second Circuit, refusing to order a stay as well.
In large part, what the cert petition hopes to accomplish is to expand on the Alameda Books decision and in particular, to provide greater specificity as to what evidence a municipality must present in order to justify its zoning restrictions.
"The plurality [in Alameda Books] did not spell out the specific burden of proof that a municipality must meet under Stage III once the businesses have called into question—by actual proof and evidence—the rationale for the zoning ordinance," the petition argues. "Thus, although Alameda Books established a skeleton for considering constitutional challenges, it never put any meat on those gaunt bones to explain how the burden-shifting test is properly applied. Guidance is now needed from this Court to flesh out the proper standards."
The petition also notes that the current case could provide a template on how municipalities deal with adult businesses across the country—the importance of which can hardly be underestimated, considering the current very conservative philosophy practiced by not only the federal Department of Justice but by municipalities in at least a dozen states. The petition calls for this clarification in part because the Court of Appeals decision required different standards for a municipality's burden under Alameda Books than had other decisions across the country, including Florida's Peek-A-Boo Lounge case, where the Eleventh Circuit required a greater burden on the municipality at Stage III than did New York's court.
"There are 'scores of other decisions misconstruing Alameda Books, and this is a problem of huge constitutional significance'," the petition states, quoting from amicus briefs filed by the First Amendment Lawyers Association and Free Speech Coalition. "Furthermore, 'the decisions construing the "shifting burden" of Alameda Books are truly "all over the road"'."
Beyond that, the petition challenges some of the eight criteria listed in the "sham compliance" section of the zoning ordinance.
"Under the aegis of the Court of Appeals’ decision the City of New York and other municipalities may now dictate the content of bookstores—including strict limitations and restrictions on the variety of titles—through zoning laws," the petition notes. "Criminal charges may be issued to the operator of a constitutionally protected bookstore based simply on the titles she offers for sale—regardless of the percentage of adult stock in the store. Therefore, a storeowner who devotes the entire front of her store to selling hundreds of copies of the same top ten non-adult DVDs—such as Hidden Figures and Manchester by the Sea—will not be able to have a small section in the back containing a mere 15 different adult DVDs. Instead, she will have to censor that selection of erotic films to reduce the variety of adult titles to a number less than ten. This chills the store owner’s expression and limits the selection of constitutionally protected material that can be accessed by the public.
"In addition, even if a bookstore complies with the 60/40 floor space and stock requirements, and only has a handful of adult DVDs or books, the store owner may be subject to criminal charges or nuisance abatement proceedings based upon '[o]ther features relating to configuration and layout or method of operation, as set forth in rules adopted by the Commissioner of Buildings, which the Commissioner has determined render the sale or rental of "adult printed or visual material" a substantial purpose of the business conducted in such store.'" [Emphasis in original]
Finally, the petition asks the high court to rule on the essentially unbridled power which the Commissioner of Buildings has taken upon him/herself to decide his/her own criteria of whether a business is code-compliant, despite the fact that the business may be in complete compliance with the zoning ordinance as printed.
"A representative of the Buildings Department is now endowed with broad authority to determine the 'substantial purpose' of bookstores and to make judgments in a sensitive area governed by the First Amendment," the petition argues. "Such a provision subjects expression to restrictions and prior restraints without narrow, objective, and definite standards. There are no limitations on the Commissioner’s unbridled discretion. Review by this Court is warranted to determine whether it is constitutional to bestow such broad authority on a representative of the Buildings Department to make judgments in an area governed by the First Amendment."
All in all, this cert petition presents a well-framed argument, though of course, considering the current makeup of the U.S. Supreme Court, Dubno will have an uphill battle.