NEW YORK – The state’s highest court on Thursday struck down two of the latest attempts by topless bars to wriggle around Mayor Rudolph Giuliani’s crackdown on sex entertainment businesses in New York City.
The Court of Appeals rejected a policy of Stringfellow’s of Manhattan that allows minors to be admitted after an elaborate process. The court called the topless bar’s policy a “strained interpretation” of law, which isn’t aimed at allowing children in, but to skirt adult business ordinances. The ordinances apply only to establishments that didn’t admit the general public.
“Because it purportedly admits minors, the argument goes, it cannot be counted as an `adult eating or drinking establishment,”‘ stated the court’s unanimous decision. “We reject these arguments … Stringfellow’s so-called minor policy is an obvious attempt at an end run” around the city zoning law against adult businesses.
“When the lawmakers’ purpose is as clear as it is here, we will not bend their words into the shape of a loophole,” Judge Albert Rosenblatt wrote.
“I don’t think there’s anything wrong with it,” said Mark Alonso, attorney for Stringfellow’s of New York and Gramercy Twins Associates. “A 17-year-old kid comes in with his parent, Dad says it’s OK, what can I tell you? I have no more problem than if a parent takes a kid to see `The Full Monty,”‘ a Broadway play about unemployed men who take to stripping.
Under the policy, a 13-year-old boy from Venezuela was admitted in 1998.
Thursday’s decision won’t further damage the businesses he represent because they already comply with the city ordinances they challenged, Alonso said.
“It means something to the First Amendment,” he added. “If somebody is going to produce a show which has any nudity in it — and there are something like 25 or 27 Broadway and off-Broadway productions currently with nudity — it means the mayor can walk in and shut down that particular show,” Alonso said.
The lawyer said city officials could also shut down shows if they don’t like the scripts, the dancing or the jokes.
“It’s whatever the building department wants, which is kind of a scary thought: You’re putting in the hands of building inspectors art reviews,” he contended.
In the second case, the court also supported lower courts. The judges found that DJL Restaurant Corp. and adult entertainment establishments must comply with the city’s zoning laws even when they are stricter than the state’s Alcohol Beverage Control laws.
The proprietors argued that the local laws conflicted with the state law and that the state law should supersede local ordinances. For example, the city’s Amended Zoning Resolution require “adult establishments” to be confined to manufacturing and high-density commercial zoning districts.
“I represent legitimate operators,” said Edward Rudofsky, attorney for DJL Restaurant Corp. that ran Shenanigans, New York Dolls and Private Eyes topless bars.
Rudofsky argued that state liquor law effectively weeds out businesses that foster crime or otherwise hurt neighborhoods. Instead, Giuliani seeks to restrict or close all adult entertainment establishments even if they are “good neighbors,” Rudofsky said.
“The city takes what I call an `off-with-your-head’ approach,” Rudofsky said.
The practical result of the decision is that New York Dolls and Private Eyes will have to continue to abide by city restrictions on use. That means no more than 40 percent of an establishment can be devoted to adult entertainment where New York Dolls and Private Eyes are located in Manhattan. The rest is occupied by a bar without adult entertainment and the selling of souvenirs and other items including movie videos, he said.
Abiding by the ordinance has hurt business, but the attorney said he’s unsure how much.
Shenanigans’ lease expired during the litigation, he said.
Thursday’s decisions do more than eliminate attempted loopholes in the law, said city attorney Gabriel Tausigg.
“They recognize the legitimacy of the need to restrict these operations to certain locations and prohibit them in inappropriate locations,” he said.
The businesses’ attorneys had hoped victories might have blunted Giuliani’s next effort against sex-oriented businesses. Instead, the attorneys said they are preparing to fight the mayor’s attempt to eliminate protection for the businesses under ordinances that allow them to operate as long as 60 percent of the space is devoted to other than adult entertainment.
Giuliani called that “sham compliance.” He plans to submit legislation to the City Council that would allow inspectors to consider the prominence of sex-related displays in deciding whether to close the shops and clubs.
