The City of New York et al.,
Respondents,
v.
Stringfellow's of New York, Ltd.,
et al.,
Appellants,
Gramercy Twins Associates &c.,
et al.,
Defendants.
2001 NY Int. 36
Under New York City Zoning Resolution § 12-10, an
"adult eating or drinking establishment" is one "not customarily
open to the general public * * * because it excludes minors by
I.
In 1993, the New York City Department of City Planning began a comprehensive assessment of the impact of adult establishments on the quality of urban life. In DLJ Restaurant Corp. v City of New York (___ NY2d ___ [decided today]), we recounted the history and results of New York City's initiative in studying and dealing with the adverse effects of adult establishments on urban life. The study concluded in 1995 with the City's adoption of an Amended Zoning Resolution (see, Amended Zoning Resolution of City of NY § 12-10 [hereinafter "AZR"]) as a means of stemming the negative, secondary effects of adult establishments, such as crime, property devaluation, blight, and the inappropriate exposure of children and teenagers to sexually oriented environments.
The AZR confines certain "adult eating or drinking
establishments" to the City's manufacturing and high density
commercial zoning districts and mandates that they be a minimum
distance from areas where children are likely to be present, such
In 1996, a group of establishments, including
Stringfellow's, brought an unsuccessful attack on the
constitutionality of the AZR (see, Stringfellow's of N.Y. v City
of New York, , 91 NY2d 382). Rejecting this challenge, we held
that the AZR was not "purposefully directed at controlling the
content of the message conveyed through adult businesses," but
was instead aimed at the entirely separate societal goal of
ameliorating the adverse social consequences of proliferating
adult uses (see, Stringfellow's of N.Y. v City of New York, 91
NY2d, at 397,
While Stringfellow's was pursuing its constitutional
challenge, it adopted a policy in which it purported to admit
minors. The "minors policy," set forth in a seven-page document,
is an elaborate eight-step protocol for dealing with minors.
First, the doorman is instructed to call a manager, who must then
"beep or call one of [their] attorneys!" (Managers have all the
home phone, mobile phone and beeper numbers of the attorneys.) A
staffer then must photocopy the ID or license of the parent or
From the summer of 1997, when the policy was instituted, until November 5, 1998, Stringfellow's admitted only one minor, a 13-year-old child from Caracas, Venezuela. This event was unusual enough to be reported in the newspapers.
After promulgating its minors policy, Stringfellow's
sought a judgment declaring that it was not an "adult eating or
drinking establishment" as defined by the AZR. After the City
brought an enforcement proceeding, Supreme Court consolidated the
actions. Stringfellow's moved to dismiss the City's complaint
and Supreme Court granted the motion. The Appellate Division
reversed and remanded the matter for further proceedings,
II.
The AZR applies to "adult establishments" (see, Amended
Zoning Resolution of City of NY § 12-10). An "adult
establishment" is "a commercial establishment where a
'substantial portion' of the establishment includes an adult
bookstore, adult eating or drinking establishment, adult theater,
or other adult commercial establishment, or any combination
thereof" (see, Amended Zoning Resolution of City of NY § 12-10,
"an eating or drinking establishment which regularly features any one or more of the following:
"(1) live performances which are characterized by an emphasis on 'specified anatomical areas' or 'specified sexual activities,'[2] or
* * *
"(3) employees who, as part of their employment, regularly expose to patrons 'specified anatomical areas;' and
"which is not customarily open to the general public during such features because it excludes minors by reason of age" (Amended Zoning Resolution of City of NY § 12-10[c] [italics and footnote added]).
As a bar that features topless dancing, there is no
question that Stringfellow's meets subdivisions (1) and (3) of
the definition. It focuses, however, on the underscored phrase:
"not customarily open to the general public during such features
because it excludes minors by reason of age." Stringfellow's
contends that by adopting a minors policy, it has become
"customarily open to the general public" and does not "exclude[]
minors by reason of age." It argues that the underscored phrase
must be given some meaning, relying on City of New York v Dezer
Properties (95 2 771, 773), in which we recognized the
importance of according "meaning to every section of the [AZR]."
We reject these arguments. As the Appellate Division observed, the minors policy represents Stringfellow's attempt "to avoid both the restrictions of the [AZR] as well as any potential criminal liability" (253 2 110, 119). In essence, it reflects an impossible tightrope walk between the AZR and the Penal Law: If children are not customarily admitted, the establishment is subject to the AZR. If children are customarily admitted, the management risks criminal prosecution.
Stringfellow's so-called minors policy is an obvious
attempt at an end run around the AZR. Under any definition,
Stringfellow's is not "customarily open to the general public."
In Teachers Ins. & Annuity Assn v City of New York (82 2 35,
43), we interpreted the phrase "customarily open or accessible to
the public" contained in the New York City Landmarks Law. We
explained that "customary openness" requires openness that is
"usual, ordinary or habitual (rather than rare or occasional)."
Stringfellow's minors policy plainly fails this test. Minors
When the lawmakers' purpose is as clear as it is here, we will not bend their words into the shape of a loophole. The City, in drafting the AZR, was exacting in its requirement that these establishments be distanced from schools and day care centers (see, Zoning Resolution of City of NY § 42-01[b]; see also, Fredericks, Adult Use Zoning: New York City's Journey on the Well-Traveled Road From Suppression to Regulation of Sexually Oriented Expression, 46 Buff L Rev 433, 451 [1998]; see generally, Buzzetti v City of New York, 140 F3d 134). The AZR was designed to keep children away from these establishments, not to have them invited in as customers.
Stringfellow's strained interpretation is 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 (see, e.g., Penal Law §
260.20 [endangering the welfare of a child]; Penal Law § 235.21
[disseminating indecent material to minors]) and would create an
untenable paradox. Instead of receiving the intended benefits of
the AZR, children would serve as the very vehicles by which
topless bars can escape classification as adult eating or
drinking establishments. With supreme irony, the more children
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Footnotes
1 Stringfellow's has changed its name to "Ten's." In that the caption refers to Stringfellow's, we continue that designation in this opinion.
2 Section 12-10 of the Zoning Resolution also further defined the terms used in the above section as follows:
"[S]pecified sexual activities" are "(i) human genitals in a state of sexual stimulation or arousal; (ii) actual or simulated acts of human masturbation, sexual intercourse or sodomy; or (iii) fondling or other erotic touching of human genitals, pubic region, buttock, anus or female breast.
"Specified anatomical areas" are (i) less than completely and opaquely concealed: (a) human genitals, pubic region, (b) human buttock, anus, or (c) female breast below a point immediately above the top of the areola; or (ii) human male genitals in a discernibly turgid state, even if completely and opaquely concealed."