Agenda - Planning Commission - 11/02/2017

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July 25, 2017 I Volume 11 I Issue 14 Zoning Bulletin having a "substantial portion" of its "stock -in -trade" in, among other things, printed matter or video representations depicting "specified sexual activities" or "specified anatomical areas," as defined in the regulations. An "adult eating or drinking establishment" was defined as an eating or drinking establishment that excludes minors and "regularly features" live performances or films emphasizing "specified sexual activities" or "specified anatomical areas," or where the employees regularly expose `,`specified anatomical areas" to patrons as part of their employment. In 1998, the City developed a so-called "60/40" test to identify adult bookstores and adult eating and drinking establishments. Under the 60/40 rule, any commercial establishment with at least 40 percent of its customer- accessible floor/cellar area or stock -in -trade used for adult purposes qualified as an "adult establishment." Over time, the City found that adult establishments were achieving techni- cal compliance with the 60/40 test by engaging in a "sham" of utilizing part of their premises for non -adult purposes without altering their predominant focus on sexually explicit activities or materials. In response, in 2001, the City adopted amendments to, the 1995 Zoning Ordinance (the "2001 Amendments"). With respect to "adult eating or drinking establishments," the 2001 Amendments provided that a business was an "adult establishment" if it regularly featured live performances characterized by an emphasis on certain "specified anatomical areas" or "specified sexual activities" in any portion of the establishment, regardless of whether it limited those performances to less than 40% of its floor area. In other words, a club featuring topless or nude dancers qualified as an "adult eating or drinking establishment" no matter the proportion of its space devoted to adult entertainment. With regard to adult bookstores, the 2001 Amendments formally kept the 60/40 test, with the added provision that if a store passed the test, but met at least one of eight criteria (e.g., like having viewing areas for adult movies or live performances), then the store's non -adult material would not be considered stock -in -trade for the purpose of the "substantial portion" analysis. In 2002, businesses that.showed or sold adult films and businesses that had topless entertainment (collectively, the "Businesses"), but that technically met the 60/40 test, challenged that 2001 Amendments as being facially (i.e., on its face) unconstitutional, as a violation of First Amendment free speech rights. Their legal actions were consolidated. In 2003, the trial court declared the 2001 Amendments unconstitutional and enjoined their enforcement. The Appellate Division reversed, declaring the 2001 Amendments constitutional. The Court of Appeals modified that deci- sion and remitted the matter for further proceedings. In its decision, the Court of Appeals reviewed the United States Supreme Court -provided three-part burden -shifting framework for determining the constitutionality of zoning that regulates adult establishments: First, a "municipality's evidence must fairly support the municipality's rationale for its ordinance." Second, the municipality prevails "[i]f plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does -not support its rationale or by furnishing evidence that disputes the municipality's factual findings." Third, "[i]f plaintiffs succeed in casting 6 © 2017 Thomson Reuters