Agenda - Planning Commission - 11/02/2017

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July 25, 201.7 I Volume 11 I Issue 14 Zoning Bulletin The Court's Decision: Judgment of Supreme Court, Appellate Divi- sion, reversed. Judgment for the City. The Court of Appeals of New York held that the City had met its burden of demonstrating that the establishments affected by the 2001 Amendments retained a predominant focus on sexually explicit materials or activities. Thus, the court concluded that the 2001 Amendments did not violate the Businesses' First Amendment rights. Importantly, in reaching its decision, the court also held that at the third stage of a three-part burden -shifting framework for First Amendment chal- lenges to zoning adult businesses, the municipality has "only a modest burden." The court noted that the United States Supreme Court has instructed that in First Amendment cases applying intermediate scrutiny, a court's task, when reviewing a legislature's factual or predictive judgments, is "to assure that, in formulating its judgments, [the legislature] has drawn reasonable infer- ences based on substantial evidence." The court said that same deferential standard is applicable ",to a municipality's factual or predictive judgments in the adult use zoning context." More specifically, the court said that in the third -stage of the burden -shifting framework for determining the constitution- ality of zoning that regulates adult establishments, the municipality need only show evidence that "fairly support[s]" the conclusion- that there is an ongoing focus on the sexually explicit; the municipality "need not `perform a formal study or a statistical analysis . . .." Thus, the court said that, here, the City did not have to "establish that it ha[d] looked at a representative sample of 60/40 businesses in the city." In other words, the City, in demonstrating an ongoing focus on the sexually ex- plicit, had to meet the same evidentiary burden at the third stage of the framework as it had to meet at the first stage. The trial cpurt's task, said the Court of Appeals, was "to decide whether the City had relevant evidence rea- sonably adequate to support its conclusion that the adult establishments retained a predominant, ongoing focus on sexually explicit activities or materials." Here, the court found that the City met its burden of showing continued focus on sexually explicit activities and materials by the Businesses. For example, the court found that evidence showed that stores that stocked non - adult magazines in the front of the store but still contained peep booths in the back of the store were "no less sexual in [their] fundamental focus." Similarly, topless clubs that had small signs and an adjoining comedy club; still retained a "predominate sexual focus." Having found that the adult establishments continued to have a predominant focus on sexually explicit materials and activities, despite technically meeting the 60/40 rule, the court concluded that the 2001 Amendments were facially constitutional. See also: City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S. Ct. 1728, 152 L. Ed. 2d 670, 30 Media L. Rep. (BNA) 1769 (2002). Case Note: The Businesses had also challenged the 2001 Amendments as being unconstitutional 8 ©2017 Thomson Reuters