May 28, 2018

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New York Court of Appeals Restricts Adult Entertainment Industry

According to a recent ruling from New York’s highest court, adult shops found within 500 feet of a school, a church, a park, or a residential or commercial area, will be shut down. The decision could mean that adult stores are de facto barred from being built in New York City because there are very few areas in the city that don’t fit the description of an off-limits area. The Court’s ruling effectively reverses a decision from several years ago allowing adult entertainment stores to continue running in NYC after the city attempted to ban adult stores altogether in 2001. At this point, the US Supreme Court is the only judicial body capable of overturning the decision and it doesn’t seem likely that the Justices will want to consider the case.

The ruling is controversial, not only because of its effect on businesses but also because the decision relies on moral judgments regarding the XXX industry. Those seeking adult entertainment in New York will now have to rely on the internet.

Historical Context

Before the recent ruling, adult businesses were only allowed to operate if adult material took up less than 40 percent of the store. The so-called 60/40 rule was the result of a hard-fought battle against former Mayor Rudolph Giuliani’s attempt to limit the industry in the 1990s. In 2001, the city bypassed the rule by instituting a law purposefully constructed to ban “adult enterprises” from being within 500 feet of residential and commercial areas. But eventually in 2012 the New York State Supreme Court blocked that law. That decision was then upheld by the Court of Appeals in 2015.

Following this back and forth in court, adult businesses were diminished by a rise in residential and commercial development and a boom in the online porn industry. Market forces even pressured the late Richard Basciano – one of the biggest names in the industry – to close down his business.

Now, in light of the ruling, the so-called 60/40 rule no longer applies and the original 2001 ban has been reinstated. Stores all over NYC will most likely have to shut down completely. Moving locations will prove difficult, if not impossible, given the Court’s limitations. Businesses continue to hope for some kind of reversal or stay of enforcement.

Remaining Businesses

Certain strip clubs will remain unaffected by the decision because they have special adult entertainment licenses. There are about eight of these clubs according to Ed Anakar who works for Rick’s Cabaret. Ten other strip clubs, which lack the required license, will be shut down. As a result, the remaining businesses will benefit greatly from the Court’s restrictions and pretty soon the value of the special licenses will go up.

The Response

Speaking about the recent ruling, Nick Paolucci of the New York law department said the city “acted reasonably and lawfully to stem the widespread circumvention of zoning regulations intended to protect our quality of life.”

Many did not share in the city’s rejoicing. When WCBS 880’s Alex Silverman told the news to Ajith Kumar, a proprietor of an adult store in NYC, Kumar responded, “We have to fight back. We have to appeal the case.” Erica Dubno, the lawyer who represented the adult industry, plans to do just that. She said, “We’re disappointed with the decision and are considering our options.”

At bottom, the question is whether adult entertainment constitutes a form of expression protected by the First Amendment. If the Supreme Court can be convinced that the adult industry is protected, then they could reverse the recent ruling. But it doesn’t seem likely that they’ll deliberate the case.

About Sean Lally

Sean Lally holds a BA in Philosophy from Temple University where he also studied theatre for several years. Between 2007 and 2017, he worked as a professional actor for several regional theater companies in Philadelphia, including the Arden Theatre Co., EgoPo Productions, Lantern Theater and the Bearded Ladies. In 2010, Sean co-founded Found Theater Company, an avant-garde artist collective with whom he first started to cultivate an identity as a writer.

Over the past few years, Sean has been working as a content writer, focusing primarily on the ways in which unequal power distribution can negatively affect consumers, workers and “everyday people,” more broadly. He writes for a number of websites including AccidentAttorneys.org, PersonalInjury.com, AmericanLegalNews.com and others.