Buzzetti v. City of New York

140 F.3d 134, 1998 WL 130866
CourtCourt of Appeals for the Second Circuit
DecidedMarch 20, 1998
DocketNo. 2312, Docket 97-7585
StatusPublished
Cited by37 cases

This text of 140 F.3d 134 (Buzzetti v. City of New York) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buzzetti v. City of New York, 140 F.3d 134, 1998 WL 130866 (2d Cir. 1998).

Opinion

LEVAL, Circuit Judge:

Plaintiffs Adele Buzzetti, doing business under the name of her cabaret, Cozy Cabin, which features topless female dancers, and Vanessa Doe, a topless dancer (using a fictitious name for the purposes of this suit), appeal from the dismissal of their complaint in the United States District Court for the Southern District of New York (John S. Martin, J.) seeking declaratory and injunctive relief against the enforcement of a New York City zoning ordinance. The ordinance regulates the permissible locations of commercial establishments featuring various forms of adult entertainment. The plaintiffs argue that because the ordinance applies to female topless entertainment, but not to male topless entertainment, it violates both the First Amendment’s Free Speech Clause and the Fourteenth Amendment’s Equal Protection Clause. We affirm.

BACKGROUND

Prior to November 1994, New York City’s zoning law did not distinguish between adult entertainment and other commercial establishments. In late 1993, the Department of City Planning (the “DCP”) undertook an “Adult Entertainment Study” (the “DCP study”) to help the City Planning Commission (the “CPC” or the “Planning Commission”) determine whether, like many other [136]*136municipalities, New York City should adopt zoning regulations directed at adult entertainment establishments. This study was completed in September 1994. The DCP study included both a survey of numerous studies undertaken elsewhere—including Is-lip, New York; Los Angeles, California; Indianapolis, Indiana; Whittier, California; Austin, Texas; Phoenix, Arizona; Manatee County, Florida; New Hanover County, North Carolina; and the State of Minnesota—and an examination of the nature and effects of adult entertainment establishments in New York City. With respect to New York City, the DCP study referred to previous studies of adult entertainment establishments conducted by other organizations, including an August 1993 Chelsea Action Coalition and Community Board 4 study and an April 1994 study by the Times Square Business Improvement District, as well as to testimony taken at an October 1993 public hearing held by the Borough of Manhattan’s Task Force on the Regulation of Sex-Related Businesses. In addition, the DCP conducted its own survey of adult entertainment establishments in New York City, focusing principally on three types of establishments: adult video and book stores, adult theaters, and topless or nude bars.

Based on these sources, the DCP study concluded that adult entertainment constituted a serious and growing problem in New York City. It noted that studies from other cities had documented numerous “negative secondary impacts” of such establishments, including “increased crime rates, depreciation of property values, deterioration of community character and the quality of urban life.” DCP Study at 67. These effects were consistent with the experience of those areas of New York City marked by high concentrations of adult entertainment establishments, the study concluded. Even in areas where adult establishments were not heavily concentrated, residents, businesses, and community leaders feared the consequences of possible future proliferation. The DCP study found that there had been a sharp increase in the overall number of adult entertainment establishments in New York City in the previous 10 years, including a 26 percent increase in topless/nude bars. The DCP therefore recommended special zoning restrictions on adult entertainment.

In November 1994, the New York City Council approved a one-year interim zoning moratorium on the opening or enlargement of adult establishments. In March 1995, the DCP and the New York City Council Land Use Committee filed a joint land use review application to amend the city’s zoning law to establish permanent zoning regulations applicable to adult establishments. After receiving comments from the city’s five borough boards and 39 community boards, and after holding its own public hearings, the CPC approved the proposed permanent regulations on September 18, 1995. Based on the DCP study, other reports, and public testimony, the Planning Commission concluded that there were “substantial adverse secondary effects stemming from the location and concentration of adult uses” in New York, including “the negative impact adult establishments have on economic development and revitalization; their tendency to decrease property value, thereby limiting tax revenue; [thej impediment [created] to economic activity; their tendency to encourage criminal activity, particularly when the establishments are located in concentration; the proliferation of illegal sex-related businesses; their damaging impact on neighborhood character and residents including children; and the costs associated with maintaining and patrolling areas.” Following additional public hearings, on October 25, 1995, the City Council approved the permanent restrictions, effective immediately. It is- this set of permanent zoning restrictions (“the Zoning Amendment” or “the Amendment”) that are at issue in this case.

The Zoning Amendment does not forbid the operation of any category of business. Instead, it restricts the areas in which certain sexually-oriented businesses may operate. The Zoning Amendment’s regulatory scheme applies to all “adult establishment[s]>” which is defined to mean a commercial establishment, a “substantial portion” of which is used as: an “adult book store,” an “adult theater,” an “adult eating or drinking establishment,” or some “other adult commercial establishment” (or some combination [137]*137of these). Zoning Amendment, § 12-10. Businesses fall into one of these categories of “adult establishments” if they “regularly feature” or devote a “substantial portion” of their business to entertainment or material emphasizing “specified anatomical areas” or “specified sexual activities.” Id. For example,

An adult eating or drinking establishment is 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”; 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.

Id. And:

An adult theater is a theater which regularly features one or more of the following:
(2) live performances characterized by an emphasis on “specified anatomical areas” or “specified sexual activities”, and
which is not customarily open to the general public during such features because it excludes minors by reason of age.

Id.

For purposes of this appeal, the following two definitions are pivotal:

“specified 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 (in) 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

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Bluebook (online)
140 F.3d 134, 1998 WL 130866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buzzetti-v-city-of-new-york-ca2-1998.