New York Law Review

Tag: Adult Establishments

  • DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 92 (2001): Zoning Authority and State Preemption of Alcohol Regulation

    DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 92 (2001)

    A municipal zoning ordinance that regulates the location of adult establishments is not preempted by the state’s Alcoholic Beverage Control Law, even if the establishments also sell alcohol, because the zoning ordinance addresses land use, a matter of local concern, rather than alcohol regulation, a matter of state concern.

    Summary

    This case addresses the interplay between municipal zoning power and state preemption, specifically concerning adult establishments that sell alcohol. The City of New York amended its zoning resolution to regulate the location of adult establishments to combat negative secondary effects like increased crime. Several adult establishments with liquor licenses sued, arguing that the city’s zoning regulations were preempted by the state’s Alcoholic Beverage Control (ABC) Law. The New York Court of Appeals held that the zoning regulations were not preempted because they regulate land use, a local concern, and only incidentally affect establishments that sell alcohol, which is a matter of state regulation.

    Facts

    In 1995, New York City amended its Zoning Resolution (AZR) to regulate the location of “adult establishments” due to concerns about increased crime, reduced property values, and neighborhood deterioration. The AZR required adult establishments to be located in manufacturing and high-density commercial zoning districts and maintain a minimum distance from schools and places of worship. The plaintiffs, adult establishments licensed to sell alcohol and featuring topless dancing, challenged the AZR, arguing that the ABC Law preempted it.

    Procedural History

    The plaintiffs sued the City, seeking a declaratory judgment that the ABC Law preempted the AZR. The Supreme Court treated the City’s motion to dismiss as a motion for summary judgment and granted it in favor of the City. The Appellate Division affirmed the Supreme Court’s decision. The plaintiffs appealed to the New York Court of Appeals.

    Issue(s)

    Whether the City of New York’s Amended Zoning Resolution, which regulates the location of adult establishments, is preempted by the Alcoholic Beverage Control Law, even when applied to adult establishments licensed to sell alcohol.

    Holding

    No, because the state’s Alcoholic Beverage Control Law preempts the regulation of alcohol, but it does not preempt the City’s general authority to regulate land use through zoning ordinances, even when those ordinances incidentally affect businesses that also sell alcohol.

    Court’s Reasoning

    The Court of Appeals reasoned that the State Constitution and the Municipal Home Rule Law empower municipalities to enact local laws for the “protection and enhancement of its physical and visual environment” and for the “government, protection, order, conduct, safety, health and well-being of persons or property therein.” This includes the power to enact zoning regulations, as long as they are consistent with the State Constitution and state statutes. Local laws are preempted when they conflict with state statutes, either directly or when the state legislature has assumed full regulatory responsibility over a particular field.

    The Court acknowledged that the ABC Law preempts the field of alcohol regulation. However, the Court emphasized that the AZR is a local law of general application aimed at regulating land use, not alcohol. The Court stated that “by regulating land use a zoning ordinance ‘inevitably exerts an incidental control over any of the particular uses or businesses which * * * may be allowed in some districts but not in others.’” It cited Matter of Frew Run Gravel Prods. v Town of Carroll, 71 NY2d 126, 131, emphasizing that the AZR regulates the locales of adult establishments, regardless of whether they sell alcoholic beverages.

    The Court distinguished this case from People v. De Jesus, 54 NY2d 465, where a local law dealing “solely with the actions of patrons of establishments which sell alcoholic beverages” was preempted. Here, the AZR applied to all adult establishments, regardless of whether they sold alcohol. The Court also noted that “separate levels of regulatory oversight can coexist” and that state statutes do not necessarily preempt local laws having only a “tangential” impact on the State’s interests.

    The Court concluded that a liquor licensee wishing to provide adult entertainment must do so in a location authorized by the AZR—not because it is selling liquor, but because it is providing adult entertainment. Conversely, if an adult establishment wishes to sell liquor, it must obtain a liquor license and comply with the ABC Law. The overlapping requirements are merely peripheral and represent the inevitable incidental control a zoning ordinance exerts over a particular business.

  • City of New York v. Dezer Properties, Inc., 97 N.Y.2d 768 (2002): Interpreting ‘Adult Establishment’ Zoning Regulations

    City of New York v. Dezer Properties, Inc., 97 N.Y.2d 768 (2002)

    A commercial establishment is considered an “adult establishment” subject to zoning regulations only if a “substantial portion” of the establishment is dedicated to specified adult uses, as defined by the New York City Zoning Resolution.

    Summary

    This case concerns the interpretation of New York City’s Zoning Resolution regarding “adult establishments.” Dezer Properties operated a club where only a part of the premises featured adult activities. The City argued that any adult activity qualified the entire club as an “adult establishment,” while Dezer contended that the “substantial portion” analysis applied. The Court of Appeals held that the “substantial portion” component applies, meaning that the city must prove that a substantial portion of the club’s floor area was devoted to adult activities to regulate it as an adult establishment. Because the City conceded before the Supreme Court that Dezer allocated less than a “substantial portion” of the club’s floor area to adult activities, the Court of Appeals reversed the Appellate Division and reinstated the Supreme Court order.

    Facts

    Dezer Properties, Inc. operated a club in New York City.
    Only a portion of the club was dedicated to adult activities.
    The City of New York sought to regulate the club as an “adult establishment” under the New York City Zoning Resolution.
    The City Planning Commission Report on Adult Use Zoning Amendments was relevant to interpreting the Zoning Resolution.
    Before the Supreme Court, the City conceded that Dezer allocated less than a “substantial portion” of the club’s floor area to adult activities.

    Procedural History

    The Supreme Court initially ruled in favor of Dezer Properties, finding that the “substantial portion” component applied.
    The Appellate Division agreed with the Supreme Court’s interpretation of the Zoning Resolution but disagreed concerning the application of the “substantial portion” component to the facts.
    The Court of Appeals reversed the Appellate Division’s order and reinstated the Supreme Court’s order, finding that the issue of whether a “substantial portion” of the floor area was used for adult activities was not properly before the Appellate Division, as the City conceded the point before the Supreme Court. The certified question was deemed unnecessary.

    Issue(s)

    Whether the “substantial portion” analysis in New York City Zoning Resolution § 12-10 applies to determine if Dezer Properties’ club, with only a part dedicated to adult activities, qualifies as an “adult establishment” subject to municipal regulation.

    Holding

    Yes, because the “substantial portion” component applies in determining whether Dezer’s club constitutes an “adult establishment” subject to municipal regulation. The City’s concession before the Supreme Court that a “substantial portion” of the floor area was not dedicated to adult uses was binding.

    Court’s Reasoning

    The Court of Appeals focused on statutory interpretation, specifically New York City Zoning Resolution § 12-10.
    The court agreed with the lower courts that the “substantial portion” component of the Zoning Resolution applied to determine whether Dezer’s club was an “adult establishment”.
    The Court reasoned that interpreting the ordinance in this way gives meaning to every section of the Zoning Resolution. The City’s interpretation would effectively excise the “substantial portion” component in cases involving eating or drinking establishments.
    The Court cited the 1995 City Planning Commission Report on Adult Use Zoning Amendments, highlighting the intent behind the regulations.
    The Court emphasized that the City conceded before the Supreme Court that Dezer allocated less than a “substantial portion” of the club’s floor area to adult activities. Therefore, the issue of the “substantial portion” was not properly before the Appellate Division or the Court of Appeals.
    The Court effectively held the City to its prior concession, preventing it from arguing the point on appeal.