New York Law Review

Tag: Adult Establishment

  • Stringfellow’s of New York v. City of New York, 96 N.Y.2d 53 (2001): “Adult Establishment” Definition and Exclusion of Minors

    Stringfellow’s of New York v. City of New York, 96 N.Y.2d 53 (2001)

    A business cannot avoid classification as an “adult eating or drinking establishment” under New York City zoning regulations by adopting a sham policy of allowing minors when its primary business involves sexually explicit entertainment.

    Summary

    Stringfellow’s, a topless bar, challenged its classification as an “adult eating or drinking establishment” under New York City’s zoning resolution, which restricts the location of such businesses. Stringfellow’s argued that its policy of purportedly admitting minors exempted it from the definition, which includes establishments “not customarily open to the general public * * * because it excludes minors by reason of age.” The New York Court of Appeals rejected this argument, finding the policy a sham designed to circumvent the zoning regulations. The court emphasized the city’s intent to protect children from sexually oriented environments and upheld the restrictions on adult establishments.

    Facts

    Stringfellow’s operated a topless bar in New York City. After the city amended its zoning resolution (AZR) to restrict the location of “adult eating or drinking establishments,” Stringfellow’s adopted a “minors policy.” This policy involved a detailed, multi-step process for admitting minors accompanied by a parent or guardian, including attorney consultation, parental consent forms attesting the entertainment was “not harmful,” and written consent from the minor. From 1997 to 1998, Stringfellow’s admitted only one minor under this policy. The city sought to enforce the AZR against Stringfellow’s, arguing it qualified as an “adult eating or drinking establishment.”

    Procedural History

    Stringfellow’s sued the City, seeking a declaratory judgment that it was not an “adult eating or drinking establishment.” The City counterclaimed to enforce the AZR. The Supreme Court initially dismissed the City’s complaint. The Appellate Division reversed, holding that Stringfellow’s was an “adult eating or drinking establishment.” On remand, the Supreme Court granted a permanent injunction against Stringfellow’s, preventing it from operating as an adult establishment. The Appellate Division affirmed, and Stringfellow’s appealed to the New York Court of Appeals.

    Issue(s)

    Whether Stringfellow’s minors policy, despite its restrictive nature and minimal practical effect, effectively removed it from the definition of an “adult eating or drinking establishment” under the New York City Zoning Resolution.

    Holding

    No, because Stringfellow’s “minors policy” was a transparent attempt to circumvent the AZR, and the establishment was not “customarily open to the general public,” given the policy’s restrictive nature and the extremely limited number of minors actually admitted.

    Court’s Reasoning

    The court found that Stringfellow’s policy was a sham designed to avoid the AZR’s restrictions and potential criminal liability. The court emphasized that “customary openness” requires openness that is “usual, ordinary or habitual (rather than rare or occasional),” citing Teachers Ins. & Annuity Assn. v City of New York, 82 NY2d 35, 43. The court noted the City’s clear intent to keep children away from adult establishments, stating that the AZR was “designed to keep children away from these establishments, not to have them invited in as customers.” The court refused to interpret the AZR in a way that would create a paradox where admitting more children would strengthen an establishment’s claim that it is customarily open to the public. The court stated, “When the lawmakers’ purpose is as clear as it is here, we will not bend their words into the shape of a loophole.” The court further reasoned that Stringfellow’s interpretation would be at odds with the underlying purposes of the Penal Law, which includes provisions designed to shield children from exposure to activities appropriate only for adults.

  • City of New York v. Les Hommes, 94 N.Y.2d 267 (1999): Interpreting ‘Stock’ in Adult Establishment Zoning Regulations

    City of New York v. Les Hommes, 94 N.Y.2d 267 (1999)

    When determining whether a business qualifies as an adult establishment under zoning regulations, the definition of ‘stock’ should be interpreted literally according to the municipality’s guidelines, focusing on the amount of stock and floor space, without considering factors like profitability or stability of non-adult stock unless explicitly stated in the guidelines.

    Summary

    New York City sued Les Hommes, an adult bookstore, alleging violation of zoning regulations regarding adult establishments. The dispute centered on whether Les Hommes had a ‘substantial portion’ of its stock in adult materials. The City’s guidelines defined ‘substantial portion’ based on the percentage of adult stock and floor space. The lower courts ruled that Les Hommes’ attempt to comply with the regulations by adding non-adult videos was a ‘sham,’ considering factors like profitability and sales-only offering of the non-adult stock. The New York Court of Appeals reversed, holding that the definition of ‘stock’ in the City’s guidelines does not include an inquiry into the profitability or stability of inventory of such videos. The Court emphasized that the zoning resolution should be construed in favor of the property owner.

    Facts

    Les Hommes operated a bookstore and video store catering to the gay male community in Manhattan.

    New York City enacted an amended zoning resolution regulating adult establishments, defining an adult bookstore as one with a ‘substantial portion’ of its ‘stock-in-trade’ in adult materials.

    The City’s Department of Buildings issued guidelines (OPPN No. 6/98) defining ‘substantial portion’ as at least 40% of the bookstore’s total accessible stock or floor area containing adult materials.

    After the zoning resolution became enforceable, the City sued Les Hommes, claiming it was operating an illegal adult establishment.

    Les Hommes attempted to comply with the regulations by increasing its stock of non-adult videos.

    Procedural History

    The Supreme Court initially denied the City’s request for a preliminary injunction.

    After a trial, the Supreme Court found that only 24% of Les Hommes’ stock was adult videos but granted a permanent injunction, deeming the non-adult video additions a ‘sham.’

    The Appellate Division affirmed, agreeing that the sale of non-adult videos was a sham.

    The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the definition of ‘stock’ as used in the City’s administrative guidelines interpreting the zoning resolution includes inquiry into factors beyond the amount of stock and floor space, such as whether a video is offered solely for sale or whether the inventory of such videos is stable, constantly supplemented or profitable.

    Holding

    No, because the City’s own guidelines interpret the zoning resolution literally, focusing solely on the appropriate percentages of stock and floor and cellar space, without mentioning factors other than amount of stock and floor space.

    Court’s Reasoning

    The Court emphasized that zoning regulations should be construed in favor of the property owner, citing Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 103.

    The Court stated: “Given the City’s precise guidelines, we cannot cast a wider net to capture unspecified considerations such as whether nonadult stock is stable or unprofitable. The lower courts improperly injected these considerations into the mix, even though the City’s guidelines admit no such impediments to compliance.”

    The Court acknowledged that there might be situations where items sold cannot be considered ‘stock’ under the City’s guidelines. However, in this case, the non-adult videos were prominently displayed and available for purchase.

    The Court rejected the distinction between sales and rentals, noting that the guidelines treat them the same.

    The Court concluded that factors like the owner’s good faith, the ‘essential nature’ of the store, or the volume and profitability of non-adult stock are irrelevant to the determination of whether items are accessible as ‘stock’. The court emphasized the importance of enforcing the City’s guidelines as written, stating, “Either the stock is accessible or available, or it is not; either the appropriate amount of square footage is dedicated to nonadult uses, or it is not.”