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New York Zoning Law Overturned by New York Supreme Court

New York, NY, September 4, 2012: New York Zoning Law Overturned by New York Supreme Court.

The firm has won another milestone victory in Ten's Cabaret Inc. v. City of New York, successfully challenging the 2001 Amendment to the Adult Use provisions of the New York City Zoning Resolution as they would apply to cabaret locations in which less than 40% of the customer accessible floor space is allocated to adult entertainment. Such "60/40" locations are not considered "adult" under the 1995 Adult Use Amendments to the Zoning Resolution, but would be considered "adult" and subject to severe location restriction under the 2001 Amendments.

A companion case, For The People Theaters of N.Y. Inc. v. City of New York, challenged the 2001 Amendments as they would apply to video and book stores, as well as movie theaters.

The two litigations, which have been pending since 2002, were tried in the New York County branch of Supreme Court in 2009, on remand from the New York Court of Appeals. Following the trial, Justice Louis York declared the 2001 Amendments constitutional as to the "60/40" clubs, video and book stores, but unconstitutional as to movie theaters.

At this point, Zane and Rudofsky was retained and Ed Rudofsky successfully appealed the 2009 ruling on behalf of the "60/40" clubs, winning reversal of the trial Court's ruling and a remand for a new decision.

That new decision, rendered August 30, 2012, was a stunning victory the firm's client, with the trial Court reversing itself, declaring the 2001 Amendments unconstitutional under both the First Amendment to the U.S. Constitution and the Free Expression Clause of the New York State Constitution, and criticizing the City for failing to conduct a "secondary effects" study but instead urging "fictionalized reliance" on a 1994 study at a time when no "60/40" establishments existed.

The case is one of the few "Stage III" trials to have been held nationwide following the landmark 2002 decision by the Supreme Court of the United States in Los Angeles v. Books, Inc., 535 U.S. 425 (2002), announcing new procedural rules for the litigation of constitutional challenges to zoning restrictions imposed on adult entertainment venues.

It also marks an unprecedented rejection of expert testimony by Professor Richard McCleary, of the University of California at Irvine, a nationally-renowned pro-regulation advocate, whom the trial Court found "not ... to be credible," inter alia, because of "the lack of any real world corroboration" for his opinions.

The August 2012 decision was the subject of a feature article on page 1 of the New York Law Journal on August 31, 2012, as well as mentioned in many other publications, including The New York Times.

The Full Text of the Decision can be found HERE