The following cases are a must-read for any person interested in understanding the full legal aspects of what led up to the Stonewall Riots in NYC on the last weekend in June 1969 and impacted our legal rights thereafter.
1967 Gay Bar Case in New Jersey

Incorporating a gay Legal Defense Fund

Gays being admitted into the NYS Bar

Creating a gay non-profit in NYS

Adult Use Zoning Case


50 N.J. 329 (1967) 235 A.2d 12

The Supreme Court of New Jersey. Decided November 6, 1967.

Mr. Theodore Sager Meth argued for appellant One Eleven Wines & Liquors, Inc. …

Mr. Avrom J. Gold, attorney for F. & A. Corporation, and Messrs. Diamond and Pitman, attorneys for The Mattachine Society, Inc., filed briefs amicus curiae.

The opinion of the court was delivered by JACOBS, J.

The Division of Alcoholic Beverage Control disciplined the appellants for permitting apparent homosexuals to congregate at their licensed premises. It suspended the licenses of One Eleven Wines & Liquors, Inc. and Val's Bar, Inc. …

The disastrous experiences of national prohibition led to the adoption of the twenty-first amendment and to the return of liquor control to the states in 1933. … When our Legislature during that year first created the Department of Alcoholic Beverage Control, it vested broad regulatory powers in a state commissioner who immediately set about to insure that abuses which had originally contributed so heavily in bringing about national prohibition, would not be permitted to recur. …

Among the commissioner's early regulations were Rules 4 and 5 which were adopted in 1934. Rule 4 provided that no licensee shall allow in the licensed premises "any known criminals, gangsters, racketeers, pick-pockets, swindlers, confidence men, prostitutes, female impersonators, or other persons of ill repute." And Rule 5 provided that no licensee shall allow "any disturbances, brawls, or unnecessary noises" or allow the place of business to be conducted "in such manner as to become a nuisance." In 1936 Rule 5 was revised to include an express prohibition of "lewdness" and "immoral activities," and in 1950 it was again revised to include an express prohibition of "foul, filthy, indecent or obscene language or conduct." …

During the years prior to 1954 the department instituted proceedings under Rule 4 on the basis of evidence that apparent homosexuals had been permitted to congregate at the licensed premises. Apparently the department considered that the effeminate manifestations of the patrons brought them within the prohibition of "female impersonators" although that term relates more properly to transvestites who are, for the most part said to be non-homosexuals. In Re M. Potter, Inc., A.B.C. Bulletin 474, Item 1 (August 7, 1941) the investigators had observed a group of male patrons, "whose voices, gestures and actions were effeminate," dancing and kissing among themselves. Although there was an express finding that "no actual acts of immorality" were committed at the licensed premises, the license was nonetheless suspended. In the course of his formal opinion, the acting commissioner said that the mere "presence of female impersonators in and upon licensed premises presents a definite social problem"; and in line with the then widespread intolerance and limited public understanding of the subject, he made reference to "the deep-rooted personal contempt felt by a normal red-blooded man" and to the notion that "the mere thought of such perverts is repugnant to the normal person." Since 1954 and despite increasing public tolerance and understanding, departmental proceedings aimed at the congregation of apparent homosexuals have continued apace but have been brought under Rule 5 rather than Rule 4. They have not been based on any specific and individualized charges of lewd or immoral conduct but rather on general charges that by permitting the apparent homosexuals to congregate, the licensees had allowed their places of business to be conducted in such manner "as to become a nuisance" within the contemplation of Rule 5. In Re Polka Club, Inc., A.B.C. Bulletin 1045, Item 6 (December 27, 1954) the then director, in suspending a license on a charge of violation of Rule 5, said that he would not permit licensed premises to become "havens for deviates." In Re Kaczka and Trobiano, A.B.C. Bulletin 1063, Item 1 (April 21, 1955) the licensee introduced expert testimony that homosexuality is not contagious and that seeing groups of homosexuals would not affect normal people but the license was nonetheless suspended. As illustrated in many of his rulings, including Re Louise G. Mack, A.B.C. Bulletin 1088, Item 2 (November 2, 1955), the director entertained the view that since exposure to homosexuals might be harmful to "some members of the public" the congregating of homosexuals must be prohibited as a "threat to the safety and morals of the public." See Paddock Bar, Inc. v. Alcoholic Beverage Control Div'n, supra, 46 N.J. Super., at p. 408.

In the very cases before us the Division of Alcoholic Beverage Control made it clear that it has not in anywise moderated its long standing position that permitting the congregation of apparent homosexuals, without more, is violative of Rule 5. The evidence against Murphy's Tavern disclosed many individual acts which could have been the basis of specified and individualized charges of lewd or immoral conduct at the licensed premises. But no such charges were preferred and when, during the course of cross-examination, one of the division's investigators was asked whether he had observed any lewdness at Murphy's Tavern, the prosecuting attorney pointed out that the division had not alleged "any immoral activity or lewdness itself" but had simply alleged that the licensee had "permitted the licensed place of business to become a nuisance" in that it had allowed "these persons to come in and congregate upon the premises."

In the One Eleven proceeding there was no charge and no substantial evidence that lewd or immoral conduct was permitted at the licensed premises. There was a charge and sufficient evidence that the licensee had permitted apparent homosexuals to congregate there. Investigators had visited the premises on several occasions and had observed the patrons; the testimony included the following partial account of their behavior:

They were conversing and some of them in a lisping tone of voice, and during certain parts of their conversations they used limp-wrist movements to each other. One man would stick his tongue out at another and they would laugh and they would giggle. They were very, very chummy and close. When they drank their drinks, they extended their pinkies in a very dainty manner. They took short sips from their straws; took them quite a long time to finish their drink. * * * They were very, very endearing to one another, very, very delicate to each other. * * * They looked in each other's eyes when they conversed. They spoke in low tones like an effeminate male. When walking, getting up from the stools, they very politely excused each other, hold on to the arm and swish and sway down to the other end of the bar and come back. * * *

Their actions and mannerisms and demeanor appeared to me to be males impersonating females, they appeared to be homosexuals commonly known as queers, fags, fruits and other names. Similarly in the proceeding against Val's Bar there was no charge nor any substantial evidence at the hearing before the director that lewd or immoral conduct was permitted at the licensed premises. Investigators had visited the premises on several occasions and testified in detail as to the behavioral characteristics which led them to the permissible conclusion that the patrons were apparent homosexuals. See 7 Wigmore, Evidence § 1974 (3d ed. 1940); Tyree, The Opinion Rule, 10 Rutgers L. Rev. 601 (1956); cf. State v. Campisi, 23 N.J. 513, 520 (1957); State v. Guerrido, 60 N.J. Super. 505, 511 (App. Div. 1960). The investigators acknowledged that for the most part the patrons were "normally dressed" and showed "very good behavior." Dr. Wardell B. Pomeroy, called as an expert witness by the licensee, testified that, although it could not be said from mere observation that any given individual was a homosexual, he would be of the opinion that tavern patrons with the characteristics described by the investigators were apparent homosexuals.

Dr. Pomeroy was associated with the Kinsey Institute for twenty years and was the co-author of several books dealing with sexual behavior and offenses. He referred to the Kinsey studies which contained startling indications that 13% of the males in the country were "more homosexual than heterosexual" and that 37% had "at least one homosexual experience to the point of orgasm in the course of their life." He also referred to indications that 55% of the population was neutral on the subject of homosexuality and there is now "a more acceptance attitude" than there was twenty years ago. See Mosk, Forward to The Consenting Adult Homosexuals and the Law, 13 U.C.L.A.L. Rev. 644, 645 (1966). In response to an inquiry by the division's hearer, Dr. Pomeroy voiced the opinion that no adverse social effects would result from permitting homosexuals to congregate in licensed establishments. He noted that non-homosexuals would not be harmed by being in the same premises with homosexuals, and that any who found their mere presence to be offensive would presumably leave. He expressed the view that permitting their congregation in taverns would tend to eliminate clandestine associations in unregulated and unsupervised places of public nature. See Cory and Le Roy, The Homosexual and His Society 119, 121 (1963); see also Schur, Crimes Without Victims 86, 87 (1965) where Dr. Schur dealt with the so-called "gay" bars operating in our neighboring states and elsewhere:

"Although such establishments are sometimes condemned as breeding grounds of homosexuality, the charge is not convincing. Most of the people who go there (apart from tourists and some `straight' friends) already are involved in the homosexual life. Anyone who wanders in and who is offended by what he sees is perfectly free to leave. The authors of a recent `view from within' emphasize that although an increase in homosexuality may increase the demand for homosexual bars, the bars can scarcely be said to produce homosexuals. Indeed, as these writers go on to suggest, the bars serve to keep homosexuals `in their place' — out of more public places and, to a certain extent, beyond the public view."[*] The views expressed by Doctors Pomeroy and Schur find significant legal support in various judicial holdings, notably those of the California Supreme Court. In Stoumen v. Reilly, 37 Cal.2d 713, 234 P.2d 969 (1951) the license was suspended because the licensee had permitted "persons of known homosexual tendencies" to patronize and meet at the licensed premises. Under Section 58 of the California Alcoholic Beverage Control Act, it was unlawful to permit the licensed premises to be conducted as a disorderly house or as a place "to which people resort for purposes which are injurious to the public morals, health, convenience or safety." The court, in setting aside the suspension, held that mere patronage "without proof of the commission of illegal or immoral acts on the premises, or resort thereto for such purposes" was not sufficient to show a violation of Section 58. Elsewhere in its opinion it stressed that in order to establish "good cause" for suspension of the license, something more must be shown than that many of the patrons were homosexuals and used the premises "as a meeting place." 234 P.2d, at p. 971. …

In sustaining the suspension of One Eleven's license, the Appellate Division took the position that it was not concerned with the rights of the patrons since technically the legal issue before it was the validity of Rule 5 under which the license was suspended. But the asserted rights of the homosexuals to assemble in and patronize licensed establishments are intertwined with the asserted rights of licensed establishments to serve them. Surely in these circumstances, the licensees are properly to be viewed as having standing to seek vindication of the various rights involved in order that the Court's ultimate determination may soundly rest on the complete mosaic. Cf. Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510, 512 (1965); NAACP v. Alabama, 357 U.S. 449, 458, 78 S.Ct. 1163, 2 L.Ed.2d 1488, 1497 (1958); Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 97 L.Ed. 1586, 1594 (1953); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070, 1078 (1925); Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599, 626 (1962).

The Division of Alcoholic Beverage Control, stressing the acknowledged constitutional and statutory breadth of its regulatory powers (Boller Beverages, Inc. v. Davis, 38 N.J. 138, 150 (1962); Guill v. Mayor and Council of City of Hoboken, 21 N.J. 574 (1956)), contends that the mere congregation of apparent homosexuals in taverns is contrary to the public welfare and may therefore reasonably be prohibited under its wide police powers. Cf. Jeanne's Enterprises, Inc. v. State of N.J., etc., supra, 93 N.J. Super., at p. 232. It points to the fact that the very term "apparent homosexuals" contemplates effeminate behavioral characteristics, such as those described earlier in this opinion, but apparently it concedes, as it must in the light of the times, that such behavioral characteristics without more, would not constitute overt conduct offensive to current standards of morality and decency. It expresses various fears which we have carefully considered but which lack significant support in the records before us or in the available materials on the subject.

Thus the division suggests that the presence of apparent homosexuals in so-called "gay" bars may serve to harm the occasional non-homosexual patrons who happen to stray there but it produces nothing to rebut the expert testimony or the published writings to the contrary. See Cory and LeRoy, supra, at p. 121; Schur, supra, at p. 87. It further suggests that offensive conduct by apparent homosexuals within the licensed premises "may lead to violence" against them by non-homosexuals but this ignores the licensee's comprehensive capacity and responsibility, at the peril of its license, for precluding offensive conduct and for conducting its establishment in lawful and orderly fashion. See In re Olympic, Inc., 49 N.J. Super. 299, 305-09 (App. Div.), certif. denied, 27 N.J. 279 (1958). Finally, it points out that it has consistently tried "to increase public respect and confidence in the liquor industry" (cf. X-L Liquors v. Taylor, 17 N.J. 444, 451 (1955)) and suggests that permitting the congregation of apparent homosexuals, even though carefully supervised, will impair such public respect and confidence. But here again it furnishes nothing affirmative in support of its position which appears to disregard the burgeoning movement towards greater tolerance and deeper understanding of the subject. See Mosk, supra, 13 U.C.L.A.L. Rev., at p. 645; Model Penal Code § 207.5, Comment (Tent. Draft No. 4, 1955). When in the 1930's the Department of Alcoholic Beverage Control first took its severe position, it acted on the assumption that the mere congregation of apparent homosexuals had to be outlawed to achieve effective control. It of course had no experience to support the assumption but it took the prohibitory course as the safer one for the then fledgling system. At the time, the interests of the patrons in question were given little consideration and were in any event overwhelmed by the then highly felt transitional need for sweeping restraint. Now, in the 1960's, the transitional need as such is long past and it is entirely appropriate that full sweep be given to current understandings and concepts. Under them it seems clear that, so long as the division can deal effectively with the matter through lesser regulations which do not impair the rights of well behaved apparent homosexuals to patronize and meet in licensed premises, it should do so. Such narrower course would be consonant with the settled and just principle that restrictions adopted in the exercise of police powers must be reasonable and not go beyond the public need. …

It must be borne in mind that the division has produced nothing to support any need for continuance of its flat prohibition. Nor has it produced anything to indicate that it could not readily prepare and enforce a fair and sensible regulation which, while permitting apparent homosexuals to assemble in and patronize licensed establishments, prohibits overtly indecent conduct and public displays of sexual desires manifestly offensive to currently acceptable standards of propriety. Such a regulation might well be adopted forthwith to the end that future proceedings would rightly be based on specific charges of improper conduct at the licensed premises rather than, as here, upon general charges of mere congregation which we deem to be unreasonable and legally unsupportable. In the meantime, the discipline imposed in the three cases before us must be set aside, without prejudice, however, to any new charges which the division may prefer against the licensees, or any of them, clearly describing the individual acts alleged to be violative of the provisions in Rule 5 aimed at lewd and immoral conduct within the licensed premises. See Vallerga v. Dept. of Alcoholic Beverage Cont., supra, 1 Cal. Rptr., at pp. 498-499, 347 P.2d, at pp. 913-914.

Reversed. For reversal: Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, SCHETTINO and HANEMAN

PROCTOR, J. (concurring).

Since the charges against the three taverns did not specify any particular offensive acts by the patrons, I concur with the majority opinion. However, I wish to emphasize that, although well-behaved homosexuals cannot be forbidden to patronize taverns, they may not engage in any conduct which would be offensive to public decency. In the record before us it appears that there was evidence of conduct (men kissing each other on the lips, etc.) which would form the basis for disciplinary action at least against One Eleven and Murphy's had they properly been charged. A tavern should not provide an arena for the behavior disclosed by this record. I appreciate that the majority opinion does not say that such conduct will be tolerated, but nonetheless I am expressing my positive view that it should not be.

33 N.Y.2nd 609 (1973)

Court of Appeals of New York.

Application of William J. THOM, Appellant, for Approval of the Incorporation of Lambda Legal Defense & Education Fund, Inc.

July 3, 1973.

Victor Rabinowitz and Herbert Jordan, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Daniel M. Cohen and Samuel A. Hirshowitz, New York City, of counsel), in his statutory capacity under section 71 of the Executive Law.


The order of the Appellate Division, … should be reversed and the matter remitted to that court for reconsideration of the application. The determination of that court was unsupportable in finding that the Lambda Corporation was neither benevolent nor charitable in ostensible purpose and that there was no demonstrated need for the corporation. We do not agree, however, that the Appellate Division is without discretion in considering applications for approval under section 495 of the Judiciary Law, Consol.Laws, c. 30 and sections 608.1—608.9 of the Appellate Division Rules (22 NYCRR part 608). There may be and will undoubtedly arise in the future many applications on behalf of corporations which will not merit approval because of factors related to the responsibility of the sponsors, the method of financing, the scope of activities proposed, and still others not predictable or definable in advance, any or all of which may affect the public interest. Moreover, section 608.2 setting forth the requirements and standards for applications would be senseless unless the several matters required to be included in the application were not subject to discretionary review. Nor do we find any lack of standards, if standards be required, implied or expressed, in the variously detailed rules.

BURKE, Judge (concurring).

The appellant seeks to reverse an order of the Appellate Division which denied his application for approval of ‘the * * * existence * * * and incorporation’ of the Lambda Legal Defense & Education Fund, Inc. (hereafter Lambda) as a legal assistance corporation and dismissed the petition.

Section 495 of the Judiciary Law1 prohibits the practice of law in New York by corporations or voluntary associations, subject to certain limited exceptions set forth in subdivision 5 of section 495 which provides, in relevant part: ‘This section shall not apply * * * to organizations organized for benevolent or charitable purposes, or for the purpose of assisting persons without means in the pursuit of any civil remedy, whose existence, organization or incorporation May be approved by the appellate division of the supreme court of the department in which the principal office of such corporation or voluntary association may be located.’ (Emphasis added.)

In furtherance of the authority thus vested in the Appellate Divisions by subdivision 5 to approve or disapprove the practice of law by ‘benevolent or charitable’ organizations or by organizations rendering legal services to ‘persons without means’, the First Department promulgated part 608 of its *611 Rules (22 NYCRR part 608, hereafter Rule 608) which sets forth the procedural rules for application and practice pursuant to section 495 of the Judiciary Law. Actually, Rule 608 is a codification of the principles set forth in Matter of Community Action for Legal Servs., 26 A.D.2d 354, 274 N.Y.S.2d 779 (hereafter CALS), wherein, noting the Appellate Division’s concern for the protection of the public from the potential abuses of the corporate practice of law, minimal standards were called for which would insure that, in dealing with authorized corporate practitioners, ‘the public will receive the best available legal services in the same way as those who retain their own private lawyers, with effective recourse to the Court for gross professional failure’. Among the safeguards suggested in CALS were the requirements that lay control over the operation of the legal assistance corporation be held to a minimum, and that the lawyer-employee of the corporation “maintain full professional and direct responsibility to his clients for the information and services so received” thus insuring the independence and inviolability of the lawyer-client relationship (26 A.D.2d, at pp. 361—362, 274 N.Y.S.2d, at p. 788).

The petition gave to Lambda, which had previously been approved by the Commissioner of Education as a not-for-profit corporation, the following corporate purpose: ‘The Corporation is organized to seek, through the legal process, to insure equal protection of the laws and the protection of civil rights of homosexuals.’ In the petition, which was modeled upon the previously approved application of the Puerto Rican Legal Defense and Education Fund, Inc., Lambda proposed, among other things ‘(a) to initiate or join in judicial and administrative proceedings whenever legal rights and interests of significant numbers of homosexuals may be affected; (b) to provide to homosexuals information which will broaden their awareness of their legal rights and obligations; (c) to inform the legal community and the public of the goals, methods and accomplishments of the Corporation’. Additionally, it was proposed that Lambda would provide legal services without charge ‘in those situations which give rise to legal issues having a substantial effect on the legal rights of homosexuals’. It is not disputed that Lambda’s petition complied in all respects with the requirements of Rule 608, pursuant to which other legal assistance organizations have been authorized to practice law.

Despite the compliance of Lambda’s petition with Rule 608, and the recommendation of various bar associations that Lambda’s application be approved,2 the Appellate Division denied and dismissed the application, declaring: ‘The stated purposes are on their face neither benevolent nor charitable * * * nor, in any event, is there a demonstrated need for this corporation. It is not shown that the private sector of the profession is not available to serve this clientele, nor that, as to indigents, the existing legal assistance corporations are not available. A supplemental affidavit does indicate a lack of desire on the part of some attorneys who work Pro bono publico to take the cases of homosexuals, but this appears to be no more than a matter of taste, and it is not established that lawyers are completely lacking. The averment does not show that the persons concerned will be without legal services unless this corporation is approved for the purpose.’ The court went on to conclude: ‘it seems to us that we should not put our imprimatur upon any corporation which seeks approval to practice law for no more reason than that it claims to represent a minority.’

For reasons set forth hereinafter, we reverse.

The threshold issue on this appeal concerns the validity of the Appellate Division’s determination that Lambda did not qualify for section 495 (subd. 5) approval since its stated purpose—to protect the legal rights of homosexuals, a minority—was ‘neither benevolent nor charitable’. Petitioner contends, with justification, that the disapproval of Lambda’s application on the ground that its purpose was not charitable or benevolent was inconsistent with the Appellate Division’s prior approval of the Puerto Rican Legal Defense and Education Fund, Inc. (PRLDEF), and that the equal protection clause thus requires consideration of Lambda as a charitable organization.

Section 495 (subd. 5) excepts from the proscription against the corporate practice of law organizations organized ‘for benevolent or charitable purposes’ Or ‘for the purpose of assisting persons without means’. In February of 1972, the Appellate Division approved the section 495 (subd. 5) application of the PRLDEF, which set forth the following as its corporate purpose: ‘To initiate or join in judicial and administrative proceedings affecting legal rights and interests of substantial numbers of Puerto Ricans and to conduct related informational and research programs’. The PRLDEF petition did not purport to limit its services to indigents; it must, therefore, be concluded that its application was approved as being that of an organization organized for ‘benevolent or charitable’ purposes—that the Appellate Division considered the rendering of free legal services in furtherance of the rights of a minority to be a charitable or benevolent purpose. As the petitioner points out, the characterization of such free legal services as charitable finds support in decisional law (see Matter of Green v. Javits, 7 Misc.2d 312, 166 N.Y.S.2d 198, affd. 4 A.D.2d 869, 167 N.Y.S.2d 431; Dohrenwend v. Board of Educ., Sup., 227 N.Y.S.2d 505).

The stated purpose of the Lambda petition was substantially identical to that of the Puerto Rican Defense Fund; indeed the petitioner admits having modeled the Lambda petition on the PRLDEF application. There is thus no justification for a finding that one was motivated by charitable goals while the other was not. Accordingly, the Appellate Division erred in finding the purpose of Lambda neither ‘benevolent nor charitable’.

Upon concluding that Lambda was a charitable organization, a more troublesome issue arises—whether in the case of a properly submitted application, which fully complies with Rule 608 in a case such as this, there remains in the Appellate Division any discretion as to the approval or disapproval thereof. We think not. The petitioner contends that Lambda’s proposed activities are protected by the First Amendment, and that under the United States Supreme Court’s decisions the Appellate Division may not restrict or prohibit such activities (citing N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89; Mine Workers v. Illinois Bar Ass’n, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426; United Transp. Union v. Michigan Bar, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339). Were this merely a cause of the State prohibiting a group such as Lambda from employing or selecting attorneys to represent them and then soliciting and referring cases for litigation in furtherance of the ***575 groups rights, Button and its progeny would be dispositive, for, as the Supreme Court recently stated: ‘The common thread running through our decisions in NAACP v. Button, Trainmen, and United Mine Workers is that collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment’ (United Transp. Union v. Michigan Bar, 401 U.S. 576, 585, 91 S.Ct. 1076, 1082, 28 L.Ed.2d 339). Accordingly, based upon First Amendment principles, Lambda, or any such group formed to further common legal rights, is entitled to employ attorneys to represent them and to seek out cases which will advance their common goals. To the extent that section 495 of the Judiciary Law would frustrate such activity by undue restriction or prohibition, it runs afoul of the First Amendment.3

There is involved here, however, more than the mere employment of attorneys or solicitation of cases in furtherance of group rights. The petitioner is seeking permission to practice law as a corporate entity. While the practice of law has always been subject to State regulation and is not, per se, protected by the First Amendment (see Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810; cf. United Transp. Union v. Michigan Bar, 401 U.S., at p. 581, 91 S.Ct. 1076), State regulation of the practice of law is, of course, subject to constitutional strictures; any qualification upon the practice of law *615 must have a rational connection with the applicant’s fitness or capacity to practice law, and must be applied in such a manner as to comport with the equal protection clause of the Fourteenth Amendment (Schware v. Board of Bar Examiners, 353 U.S., at p. 239, 77 S.Ct. 752). As Mr. Justice Black stated for the majority in Konigsberg: ‘We recognize the importance of leaving States free to select their own bars, but it is equally important that the State not exercise this power in an arbitrary or discriminatory manner nor in such way as to impinge on the freedom of political expression or association’ (353 U.S., at p. 273, 77 S.Ct., at p. 733).

In enacting section 495 (subd. 5) of the Judiciary Law, the Legislature has extended the right to practice law to certain groups and corporations, and has placed in the Appellate Division the authority and responsibility to oversee the enforcement thereof. In setting forth Rule 608, a regulatory scheme which, as suggested in CALS, is designed to protect the public from abuses by prohibiting lay control over the legal functions of corporately-employed attorneys and by fixing client responsibility in the individual attorney rather than in the corporate practitioner, the Appellate Division has effected controls over the corporate practice of law which, on their face, may be applied in a nondiscriminatory fashion. Once, however, an applicant has complied with Rule 608, in a case such as this, by filing a petition specifying all the requisite information, the Appellate Division may not, as it attempted to do here, exercise its discretion by selectively approving applications based upon a determination as to whether there is a need for the legal services sought to be offered by each applicant. It is of no consequence—it bears no rational connection to the valid regulation of the practice of law—that there exists in ‘the private sector’ attorneys who are willing to handle the class of cases with which the applicant proposes to deal. Accordingly, it would violate equal protection of the law to distinguish between similarly situated minorities on such an irrational basis.

Furthermore, such a subjective determination as is proposed here lacks the necessary standards to insure a nondiscriminatory result. The danger of discrimination which inheres in such a standardless approval is, in our opinion, evidenced by the determination in question here. We can perceive no rational distinction in the need for group legal services as between Puerto Ricans and homosexuals. Both groups are minorities subject to varied discriminations and in need of legal services. Absent evidence to the contrary, it must be assumed that the services of private attorneys are equally available or unavailable to both groups.

In sum, the Appellate Division erred in denying and dismissing the instant petition. There was no rational basis for its finding that Lambda was not organized for ‘charitable and benevolent purposes’ within the meaning of section 495 of the Judiciary Law. And, since Lambda’s petition complied with Rule 608, there was no discretion in the Appellate Division to disapprove the application.

Regarding the petitioner’s contention that the section 495 delegation of authority to the Appellate Division to Approve the applications lacks adequate standards to govern such determinations,4 suffice it to say that if, as suggested above, the statute is construed to leave no discretion in the **547 Appellate Division—if approval is granted in a nondiscriminatory manner—then the lack of standards will not render the statute constitutionally infirm (Shuttlesworth v. Birmingham, 394 U.S. 147, 155, 89 S.Ct. 935, 22 L.Ed.2d 162; Cox v. New Hampshire, 312 U.S. 569, 577, 61 S.Ct. 762, 85 L.Ed. 1049).

The order appealed from should be reversed, the petition reinstated and the matter remitted to the Appellate Division.

GABRIELLI, Judge (dissenting).

In ruling that the Appellate Division’s unanimous determination is ‘unsupportable’, the majority is according that court, which was acting in an administrative capacity, a narrower ranger of discretion than normally is accorded an administrative agency. The test applied by a court exercising the administrative review function is whether a rational basis undergirds the determination appealed from. Section 495 of the Judiciary Law clearly gives the Appellate Division discretion to approve or not to approve organizations applying to practice law for benevolent or charitable purposes. This is recognized in the majority’s Per Curiam statement which proceeds abruptly to the conclusion of unsupportability without advising as to how or why a rational basis is lacking.

The Appellate Division has fully explained its determination in a detailed statement. The finding that the organization’s stated purposes ‘are on their face neither benevolent nor charitable’ is fully supported in the record unless the operative words ‘benevolent’ and ‘charitable’ are to be accorded other than their well-understood meaning. In the last two paragraphs of its statement, the court has laid down the factor of financial inability to afford legal representation as at least one important guideline to be applied. The concurring opinion in this court makes much of the assertion that in a prior application invoking the Puerto Rican Legal Defense and Education Fund, Inc., the court’s approval was based solely on the charitable purpose of helping a minority ethnic group, not because of the members’ indigency, but solely because of their minority status in the society. However, the Appellate Division in its statement here appealed from noted there is no parallel since ‘the latter’s (PRLDEF) application demonstrated clearly that indigence is rife amongst the intended clientele. It does not appear that discrimination against homosexuals, which undoubtedly exists, operates to deprive them of legal representation.’ I am unable to see why that distinction is without effect, as much the rest of this court. And even assuming, without agreeing, that there is some measure of inconsistency between the determination in the Puerto Rican case and the one now before us, at least on the question of indigency as a criterion, we again find the Appellate Division accorded lesser powers by the majority than would be accorded any other administrative agency exercising discretionary and regulatory powers. The Appellate Division in regulating these matters has seen fit to draw some lines which are not without rational bases. The court is normally loath to interfere with agency regulation in areas delegated to the agency by the Legislature. Yet here the signatories to the concurring opinion have substituted their judgment in the matter for the judgment of those to whom the responsibility was delegated; and those subscribing to the Per Curiam statement, although remitting the case for reconsideration, seem to have given the court below very little to reconsider.

The majority has, in effect, taken the regulatory function away from the Appellate Division in this case and for that reason I must dissent.

BREITEL, JASEN, JONES and WACHTLER, JJ., concur in Per Curiam opinion.

BURKE, J., concurs in an opinion in which FULD, C.J., concurs.

GABRIELLI, J., dissents and votes to affirm in a separate opinion.

Order reversed, without costs, and matter remitted to the Appellate Division for further proceedings in accordance with the opinion herein.

33 NY 2d 586 - NY: Court of Appeals 1973
33 N.Y.2d 586 (1973)
In the Matter of the Application of Harris L. Kimball, Appellant, for Admission to Practice as an Attorney.
Court of Appeals of the State of New York.
Argued June 7, 1973.
Decided July 3, 1973.
Jeremiah S. Gutman for appellant.
Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen and Samuel A. Hirshowitz of counsel), for respondent.

E. Carrington Boggan for Gay Activists Alliance, amicus curiae.
Chief Judge FULD and Judges BURKE, BREITEL, JASEN, JONES and WACHTLER concur in Per Curiam opinion; Judge GABRIELLI dissents and votes to affirm in a separate opinion.
Per Curiam.
There should be a reversal and a remission to the Appellate Division for a reconsideration of appellant's application for admission to the Bar. While appellant's status and past conduct may be now and has been in the past violative of accepted norms, they are not controlling, albeit relevant, in assessing character bearing on the right to practice law in this State. Notably, the Committee on Character and Fitness found appellant to be of good character and qualified at this time. With respect to the proceedings in the State of Florida, we accept the views expressed in the dissenting opinion at the Appellate Division.

GABRIELLI, J. (dissenting).
I dissent and vote to affirm the order of the Appellate Division. The Committee on Character and Fitness withheld any recommendation for admission because of certain facts appearing in the application, in the face of and despite their report that the applicant possessed the requisite character and fitness for an attorney at law.

The applicant, admitted to the Bar of the State of Florida on April 24, 1953, was engaged in active practice there until he was disbarred in 1957 by the Supreme Court of Florida (State ex rel. Florida Bar v. Kimball, 96 So. 2d 825 [Fla.]). His status there remains unchanged.

While we are not bound to accord full faith and credit to a foreign judgment of disbarment (U. S. Const., art. IV, § 1; 7 Am. Jur. 2d, Attorneys at Law, § 20), high respect for a foreign determination will be given, but in the final analysis, the local court will make its own independent determination. That procedure has been followed in this case.

Following an arrest for committing an indecent and lewd act in a public place in the City of Orlando, Florida, the applicant was released on bail. He forfeited bail and charges were thereafter filed by the Florida Bar Grievance Committee. Following a testimonial hearing before a Referee consisting of three complete sessions at which detailed evidence was presented by the applicant, his witnesses, the other participant involved in the alleged act and the police officer, the Referee found that the applicant was committing an act of sodomy when apprehended by the police. Upon the evidence produced, the Supreme Court of Florida entered an order of disbarment. It is important to here note that the Appellate Division held that the findings of fact made below were substantiated by the evidence, all of which was submitted by the parties to the court below.

There is no merit to applicant's argument that the disbarment proceeding in Florida should not be considered against him for the advanced reason that the statute under which he was arrested in 1955, was held unconstitutional by the Supreme Court of Florida in 1971 (Franklin v. State, 257 So. 2d 21 [Fla.]). That holding of the court was held to be prospective only and, incidentally, it has been held to have continued misdemeanor effect. In any event, the significant fact remains that at the time he was found by the Referee to have committed sodomy, it constituted a felony both in Florida and New York[*] (former Penal Law, § 690); and, of course, if it had been committed here automatic disbarment would have been mandated.

In these circumstances, and in the exercise of discretion which finds full and adequate support from all the evidence submitted to the Appellate Division, the determination was properly made.

There is a further consideration which merits our attention and, like the other evidence in the case, also merits an affirmance. It was forthrightly announced by the applicant's attorney at oral argument and in his brief that the applicant is and has been in violation of section 130.38 of the Penal Law, which he considers to be an unconstitutional provision. The majority does not hold that this statute, by which the Legislature considers consensual sodomy to be a proscribed act of "deviate sexual intercourse", unconstitutional. While the other evidence, heretofore related, was sufficient for the Appellate Division to deny admission to the Bar, it is proper to here note that so long as this statute is on our books, it is the law of this State to be observed by all and the court below would have the right to consider violations of the statute as a factor which could militate against the present application. It cannot be denied that the Appellate Division has full and complete authority to deny admission to the Bar, to one who is an avowed and admitted persistent violator of any criminal statute. No less authority surrounds the present case. The order appealed from is based upon findings of fact which were substantiated by the evidence produced at hearings wherein the applicant received and was accorded full and all appropriate due process rights.

The order of the Appellate Division should be affirmed.

Order reversed, without costs, and matter remitted to Appellate Division for further proceedings in accordance with opinion herein.


In 1970, the year after Stonewall, the Gay Activists Alliance submitted an application to be incorporated as a not for profit corporation with New York’s Secretary of State. It was rejected on two grounds: that the word “gay” was inappropriate for a corporate name and that GAA sought to promote activities contrary to specific provisions of the Penal Law, namely those relating to consensual sodomy. When GAA went to Supreme Court in Albany County, on an Article 78 proceeding, that court denied the petition, saying “the troublesome posture of the petitioners is that by identifying themselves as a ‘homosexual rights organization,’ they are professing a present or future intent to disobey a penal statute of the State of New York . . . . While the court has no personal experience upon which to rely, it would seem that in order to be a homosexual, the prohibited act must have at some time been committed or at least presently contemplated.”

The Appellate Division, Third Department, unanimously reversed in March 1972, holding that the word “gay” was neither “obscene nor vulgar, even though it is considered synonymous with homosexual” and that it was not unlawful for a group of individuals to peaceably agitate for the repeal of any law.

It was one thing to try to form a gay organization; it was another thing to try to form a gay legal defense organization. Less than three years after Stonewall, Bill Thom was one of the founders and the sole incorporator of Lambda Legal Defense and Education Fund, now the nation’s oldest and preeminent lesbian and gay legal defense organization.

In November 1972, six months after the Third Department’s reversal in the Gay Activists Alliance case, the First Department, in the Matter of William J. Thom, unanimously refused to approve the application of Lambda Legal Defense and Education Fund as a legal assistance corporation. The court held that its stated purposes, which included “providing without charge legal services to those situations which give rise to legal issues having a substantial effect on the legal rights of homosexuals and to promote the availability of legal services to homosexuals by encouraging and attracting homosexuals into the legal profession,” were not, on their face, benevolent or charitable, nor was there a demonstrated need for this corporation. “A supplemental affidavit does indicate a lack of desire on the part of some attorneys who work pro bono publico to take the cases of homosexuals, but this appears to be no more than a matter of taste.”

In July 1973, the Court of Appeals reversed, in a 6-1 decision, holding that the determination of the Appellate Division was unsupportable, although the Court of Appeals chose not to explain its conclusion. Even on remand, the First Department felt obliged to strike one of Lambda’s purposes, namely “to promote legal education among homosexuals by recruiting and encouraging potential law students who are homosexuals.” By the way, on the same day as it reversed in Matter of Thom, the Court of Appeals also directed the Second Department to reconsider its denial of admission to Harris Kimball, who had been disbarred in Florida in 1957 after conviction for consensual sodomy.

On August 28th, 1984, New York City Mayor Edward I. Koch swore in William J. Thom as a judge of the Civil Court of the City of New York, making Judge Thom the first openly gay or lesbian person to be appointed or elected to a court established by the New York State Constitution.

Bill Thom was a leading force in New York’s gay legal community for more than a decade, starting at a time when you could count the openly lesbian and gay lawyers in New York on the fingers of your two hands. It wasn’t real popular to be an openly lesbian or gay lawyer in the early 1970's.

84 A.D.3d 48 (2011)

923 N.Y.S.2d 11

FOR THE PEOPLE THEATRES OF N.Y., Inc., Doing Business as FAIR THEATER, Plaintiff, and JGJ MERCHANDISE CORP., Doing Business as VISHANS VIDEO, Also Known as MIXED EMOTIONS, Appellant,


CITY OF NEW YORK et al., Respondents. TEN'S CABARET, INC., et al., Appellants, v. CITY OF NEW YORK et al., Respondents. 3847, 3848, 121080/02.

Appellate Division of the Supreme Court of New York, First Department.

Decided April 7, 2011.

Fahringer & Dubno, New York City (Herald Price Fahringer, Erica L. Dubno and Nicole Neckles of counsel), for JGJ Merchandise Corp., appellant. Zane & Rudofsky, New York City (Edward S. Rudofsky of counsel) for Ten's Cabaret, Ltd., and others, appellants. Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth S. Natrella, Leonard Koerner, Robin Binder and Sheryl Neufeld of counsel), for respondents. GONZALEZ, P.J., SAXE, CATTERSON and MANZANET-DANIELS, JJ., concur.



This challenge to the constitutionality of the 2001 Amendments to New York City Zoning Resolution § 12-10, which placed certain restrictions on adult establishments, presents two significant issues. The first is whether the City established that certain nightclubs fitting the technical definition of "60/40" establishments retained a predominant focus on sexually explicit activity, and thus, that the amendments were constitutional. If this first issue is resolved in the affirmative, then the second must be addressed—whether the 2001 Amendments to the Zoning Resolution were constitutional on an as-applied basis.


Before 1995, New York City made no distinction between adult entertainment and nonadult entertainment, as the Zoning Resolution of December 15, 1961 allowed adult entertainment businesses to coexist with other uses. In 1993, the New York City Department of City Planning (DCP) began a comprehensive assessment of the impact of adult establishments. That effort culminated with the release of the "Adult Entertainment Study" in 1994 (DCP Study). Based on the material before it, the DCP concluded that adult entertainment establishments, particularly those concentrated in specific areas, tended to produce negative secondary effects such as increased crime, decreased property values, reduced commercial activities, and erosion of community character. In response to the DCP Study, the City adopted an Amended Zoning Resolution in 1995 (1995 Resolution), which barred adult businesses from all residential zones and most commercial and manufacturing districts (Amended Zoning Resolution § 32-01 [a]; § 42-01 [b]). The 1995 Resolution defined an "adult establishment" as a commercial establishment in which a "substantial portion" of the establishment includes "an adult book store, adult eating or drinking establishment, adult theater, or other adult commercial establishment, or any combination thereof" (Text Amendment N 950384 ZRY [No. 1322]).[1] Notably, the 1995 Resolution placed particular emphasis on the presence of "specified sexual activities" and/or "specified anatomical areas" in determining whether an establishment was of an adult character.[2] Some time thereafter, the City Planning Commission (CPC) determined "substantial portion" to be defined as 40%, and made it clear that any commercial establishment with "at least 40 percent of its accessible floor area used for adult purposes qualifies as an `adult establishment' or `adult bookstore.'" After the 60/40 formula became the governing standard, adult businesses altered their character to ensure that they did not qualify as "adult establishments" within the meaning of the City's zoning law. Following unsuccessful claims against adult businesses for "sham compliance" on the basis of the Nuisance Abatement Law,[3] the New York City Council adopted and ratified Text Amendment N 010508 ZRY to the Zoning Resolution in 2001 (the 2001 Amendments). To include those establishments that had superficially complied with the 60/40 formula but remained essentially adult establishments, the amended definition included a provision clarifying that nonadult material shall not be considered stock-in-trade for the purpose of the "substantial portion" analysis where one or more of the following features were present: (1) customers had to pass through adult material to reach the nonadult section; (2) any material exposed one to adult material; (3) nonadult material was only for sale, while adult material was for sale or rent; (4) more adult printed materials were available than nonadult ones; (5) minors were restricted from the entire store or from any section offering nonadult material; (6) signs or window displays of adult matter were disproportionate to signs and window displays featuring nonadult matter; (7) "[o]ne or more individual enclosures" were available for viewing adult movies or live performances; and (8) purchasing nonadult material exposed the buyer to adult material. On or about October 1, 2002, Ten's Cabaret commenced an action against the City, seeking, among other things, a declaratory judgment declaring the 2001 Amendments to be unconstitutional and invalid and also seeking a permanent injunction against their enforcement. At the same time, the plaintiff moved for a preliminary injunction preventing the City from enforcing the amendments. On October 1, 2002, Supreme Court (Faviola Soto, J.) granted a temporary restraining order against enforcement of the amendments against Ten's Cabaret. On October 18, 2002, three other 60/40 establishments—Pussycat Lounge, Inc., doing business as Pussycat Lounge; Church Street Café, Inc., doing business as BabyDoll; and 62-20 Queens Boulevard Inc., doing business as Nickels—commenced an action similar to the one Ten's had commenced. The three plaintiffs moved by order to show cause for a temporary restraining order, which Supreme Court (Faviola Soto, J.) granted, and to consolidate their action with Ten's, on the ground that the two actions were substantively identical. The two actions were consolidated by stipulation on May 12, 2003. Additionally, two other 60/40 establishments—For the People Theatres of N.Y., doing business as Fair Theater, and JGJ Merchandise Corp., doing business as Vishans Video, also known as Mixed Emotions—also brought similar actions. Both plaintiffs sought a judgment declaring the 2001 Amendments unconstitutional and unenforceable as well as a preliminary injunction. By order entered October 30, 2002, Supreme Court (Louis B. York, J.) enjoined the enforcement of the 2001 Amendments "to the same extent as the temporary restraining order issued in Pussycat Lounge v City of New York."

In a decision dated September 9, 2003, Supreme Court granted summary judgment in favor of the plaintiffs in the Ten's Cabaret action (Ten's Cabaret v City of New York, 1 Misc 3d 399 [Sup Ct, NY County 2003]). In so doing, the court concluded that defendants did not meet their burden under the First Amendment, or show that the 2001 Amendments were justified by concerns unrelated to speech. On the same date, Supreme Court issued a decision in For the People, finding, as it had in Ten's Cabaret, that the City had failed to meet its constitutional burden to permit the court to uphold the amendments (For the People Theatres of N.Y. v City of New York, 1 Misc 3d 394 [Sup Ct, NY County 2003]).

Ten's Cabaret and For the People were consolidated for the purposes of appeal to this Court, which reversed the Supreme Court's judgments (20 AD3d 1 [2005]). In its decision, this Court found that no new "secondary impacts" study was required absent a showing that the essential nature of the 60/40 businesses had changed (id. at 17-18).

On appeal, the Court of Appeals modified this Court's decision, finding that the action should be remitted for a hearing (For the People Theatres of N.Y., Inc. v City of New York, 6 NY3d 63 [2005]). In so doing, it held that the plaintiffs had disputed the factual findings underlying the City's 2001 Amendments, and had submitted expert affidavits, along with other documents, supporting their arguments (id. at 82-83). The Court explained that "[b]ecause plaintiffs have thus `furnish[ed] evidence that disputes the [City's] factual findings,' the burden shifted back to the City `to supplement the record with evidence renewing support for a theory that justifies its ordinance'" (id. at 83, quoting Los Angeles v Alameda Books, Inc., 535 US 425, 439 [2002]). It noted, however, that "[t]he City was not required. . . to relitigate the secondary effects of adult uses, or to produce empirical studies connecting 60/40 businesses to adverse secondary effects" (id.). Rather, the Court held, "a triable question of fact has been presented as to whether 60/40 businesses are so transformed in character that they no longer resemble the kinds of adult uses found, both in the 1994 DCP Study and in studies and court decisions around the country, to create negative secondary effects—as plaintiffs contend—or whether these businesses' technical compliance with the 60/40 formula is merely a sham—as the City contends" (id. at 83-84).

The Court explained that "[i]n addressing this factual dispute, we anticipate that the City will produce evidence relating to the purportedly sham character of self-identified 60/40 book and video stores, theaters and eating and drinking establishments or other commercial establishments located in the city. This does not mean that the City has to perform a formal study or a statistical analysis, or to establish that it has looked at a representative sample of 60/40 businesses in the city. If the trier of fact determines, after review of this evidence, that the City has fairly supported its position on sham compliance—i.e., despite formal compliance with the 60/40 formula, these businesses display a predominant, ongoing focus on sexually explicit materials or activities, and thus their essential nature has not changed—the City will have satisfied its burden to justify strengthening the 1995 Ordinance by enacting the 2001 Amendments, and will be entitled to judgment in its favor. If not, plaintiffs will prevail on their claim that the 2001 Amendments are insufficiently narrow and therefore violate their free speech rights. In that event, plaintiffs will be entitled to judgment and a declaration that the 2001 Amendments are unconstitutional." (Id. at 84.)

On remittitur, both the Ten's Cabaret and For the People plaintiffs moved for a preliminary injunction; Justice York granted both those motions. The cases were then tried separately, with the For the People trial taking place on January 12 through 22, 2009 and the Ten's Cabaret trial taking place February 23 through March 2, 2009.

In For the People, Supreme Court, by a decision dated March 29, 2010, later amended on April 8, 2010, upheld the amended definition of "adult establishment" as constitutional insofar as it concerned "adult bookstores," but declared it invalid insofar as it concerns "adult theaters" (27 Misc 3d 1079 [2010]). In so doing, the court undertook "the task of determining whether. . . the City substantially showed that the conversion to 60/40 status is a sham because the ongoing predominant focus o[f] these self-identified 60/40 entities is on sexually explicit materials" (id. at 1085). Supreme Court then detailed the evidence at trial, noting that the City "inspected 15 self-identified 60/40 businesses," and described the evidence in "shortened" form (id. at 1086). The court then denied plaintiffs' motion to dismiss for failure to prove a prima facie case, given the City's alleged failure to show that the "60/40" entities for which it presented evidence were "in fact" 60/40 compliant (id. at 1088). Supreme Court found that the Court of Appeals had used the term "self-identified" establishments, and that these establishments would not be located in these particular areas were they not actual 60/40 businesses. The court stated that "this decision is not being made against a blank slate . . . Keeping in mind that the City's burden was a `light' one, it had only to establish that the conversion of 100% adult entities to 60/40 status [from 100% adult entities] was a sham because their continuing ongoing focus is on adult material. Thus, their essential nature as adult establishments has not changed and no new study had to be undertaken to determine whether 60/40 entities had a deleterious effect on their surrounding environs. "Moreover, the City was directed that substantial evidence was all that was necessary to satisfy its burden. This burden is consistent with prior highcourt determinations in adjudicating the standard by which the constitutionality of statutes and regulations regulating speech has been decided. While the content of speech cannot be regulated, the time, place and manner can be as a legitimate exercise of the state's police power. "While the plaintiffs may have introduced evidence that the essential nature of these entities has changed, it is also true that the defendants have provided substantial evidence that their dominant, ongoing focus is on adult matters. Therefore, the defendants have satisfied their `light' burden with regard to bookstores and video stores." (Id. at 1088-1089 [citations omitted].) However, Supreme Court was "not convinced that the same holding applie[d] to the two adult movie theaters in [the] action. The admittedly large number of peep shows in one theat[er] and the payment of one admission in both theat[er]s [that] allows a patron to see all of the movies, both adult and nonadult, do not rise even to the low level of substantial evidence" (id. at 1089). On May 19, 2010, Supreme Court entered judgment in the City's favor upholding the 2001 definition of "adult bookstore" as constitutional, but striking the definition of "adult theater." The City does not challenge the "adult theater" portion of the ruling on appeal.

In Ten's Cabaret, Supreme Court awarded judgment to the City upholding the 2001 Amendments. The court framed the issue as, "have these 60/40 establishments so changed in nature that they no longer resemble the pre-1995 100 percent entities that prevailed in the City before the 1995 amendments were enacted?" (Ten's Cabaret, Inc. v City of New York, NYLJ, Apr. 19, 2010, at 34, col 1 [Sup Ct, NY County, York, J.].) Supreme Court then stated: "To make out a prima facie case, the Court of Appeals held, the City did not have to conduct any further surveys or inspections of 60/40 clubs. Its `light burden' was to show that the essential character of these clubs and bars has not changed, to wit, that their predominant focus continues to be on topless dancing, even though the topless dancing may take in less than 40 percent of the club's accessible floor space.

"Merely because defendants have introduced evidence that some topless clubs may not have an ongoing focus on adult activities, does not defeat the pattern established by defendant of topless clubs having an ongoing focus of adult activities. "Although the plaintiffs have devoted quite a substantial portion of their brief to proving that these reconstituted 60/40 clubs no longer resemble their pre-1995 forbears, this argument is entirely irrelevant and will be accorded no weight. The [remittitur] to the trial court posed the question: did these 60/40 clubs so change that their dominant ongoing focus was no longer on sexual matters so that the studies establishing the 1995 amendments no longer applied to them? The Court of Appeals held that the City did not have to engage in empirical studies or to establish the secondary effects of 60/40 clubs and bars to satisfy its burden." (Id. [citations ommitted].) The plaintiffs appealed the judgments in For the People and Ten's Cabaret. We now reverse and remit the matter for further proceedings consistent with this opinion.

Facial Challenge

In assessing the constitutionality of the City's ordinance, the Court of Appeals adopted the analytical structure of Los Angeles v Alameda Books, Inc. (535 US 425 [2002]).[4] In so doing, the Court established the DCP Study, as well as other studies and court decisions from across the country, as the basis for assessing the plaintiffs' claim that 60/40 businesses no longer continue to resemble the kinds of adult uses that were shown to cause negative secondary effects (see For the People, 6 NY3d 63).[5] In relying upon the DCP Study as well as other studies and court decisions from across the country, the City is not required to relitigate the issue of secondary effects of adult uses or produce additional empirical studies on 60/40 businesses (see id. at 80-81). To prevail, however, the City needs to show that "the evidence relied upon is reasonably believed to be relevant to the problem that the city addresses" (6A McQuillin, Municipal Corporations § 24:127, at 456 [3d rev ed]). That is, it must establish that the essential characteristics or features of the 60/40 uses are very similar to those adult uses that were previously found to cause secondary effects. In order to find the ordinance constitutional, a court must have "more conviction of the connection between legislative ends and means than [is required by] the rational basis standard, but only in the sense of evidence. . . [that] is reasonably believed to be relevant to the secondary effects in question" (For the People, 6 NY3d at 81 [citations and internal quotation marks omitted]).[6]

In its extremely terse decision, Supreme Court did not elaborate on the criteria by which it determined that the plaintiffs' essential nature was similar or dissimilar to the sexually explicit adult uses that were analyzed in the DCP Study or other studies and case law from across the country. Moreover, it failed to state the particular facts on which it based its judgment. Supreme Court simply detailed the City's evidence and arrived at legal conclusions. This was insufficient to answer the question posed on remittitur from the Court of Appeals— namely, whether the 60/40 establishments are similar in nature to adult establishments that have been shown by means of empirical data to cause negative "secondary effects." As Supreme Court did not provide any direction for the parties or this Court to adequately review, analyze, or understand the ruling, its decision is "manifestly inadequate" and violates the dictates of CPLR 4213 (b).

Pursuant to CPLR 4213 (b), a trial court "should set forth those ultimate or essential facts relied upon in reaching its decision" (General Instrument Corp. v Consolidated Edison Co. of N.Y., 99 AD2d 460, 461 [1984]; see also IBE Trade Corp. v Litvinenko, 16 AD3d 132 [2005] [holding that a trial court should make findings of fact essential to support its determination on the issue]). "Mere conclusions" are insufficient as a matter of law; the facts upon which the conclusions rest must be stated (see Davin v Isman, 228 NY 1, 10 [1920] ["Facts justifying such conclusion should be found to the end that this court . . . should be able to ascertain whether such conclusion is supported by facts found"]). Otherwise, "intelligent appellate review is impossible if the appellate court cannot ascertain on what facts and conclusions of law the lower court rested its decision" (Weckstein v Breitbart, 111 AD2d 6, 7 [1985]). Indeed, given the scale of the trial record below, which runs into the hundreds of pages, it is impossible for this Court to properly review Supreme Court's conclusions of law without the benefit of established findings of fact (id. at 8 ["Without the benefit of established findings of fact and given the poor shape of the trial record below, which includes hundreds of pages of documents, it is impossible for this court to (make a determination as to one of the causes of action)]"). This Court will therefore remit the matter to Supreme Court for a decision setting forth its findings of fact as to the plaintiffs' facial challenge. In so doing, we briefly outline the standard that Supreme Court must follow on remittitur in considering the plaintiffs' challenge to the 2001 Amendments.

Nature of the Proof


In assessing the validity of the 2001 Amendments, Supreme Court needed to compare "self-identified" 60/40 businesses with the adult businesses discussed in the DCP study, other studies and case law so as to determine whether the 60/40 businesses retained a predominant focus on sexually explicit materials. In so doing, Supreme Court needed to determine the particular characteristics associated with the promotion of sexually explicit materials.[7] The negative characteristics identified by the Supreme Court would serve as a baseline against which the "so transformed" issue could be adjudicated. Using that baseline, Supreme Court would then need to determine whether the 60/40 businesses had a similar predominant focus on sexually explicit materials. In establishing the criteria by which the current uses can be compared to the uses studied in 1994, the DCP Study is a helpful starting point.[8] Though that study focused on the consequences of significant concentrations of adult businesses emphasizing sexually explicit materials and not the particular attributes that caused secondary effects, it did highlight some of the attributes that define an adult business. Specifically, it noted that establishments might qualify as being of an adult nature if they (1) exclude minors by reason of age or (2) sell materials emphasizing "specified sexual activities" or "specified anatomical areas."[9] In addition to those salient characteristics, the study placed special emphasis on the presence of adult signs that were larger than those of nearby nonadult businesses. Based on the DCP Study, it is possible to discern the relevant characteristics of adult uses that can be linked to a focus on sexually explicit materials. For example, the presence of large signs advertising adult content may indicate a predominant focus on promoting sexually explicit materials. The same is true of a significant emphasis on the promotion of materials exhibiting "specified sexual activities" or "specified anatomical areas," as evidenced by a large quantity of peep booths featuring adult films.[10] Other indicators of a predominant focus on sexually explicit materials might be the exclusion of minors from the premises on the basis of age or difficulties in accessing nonadult materials.[11] In using the DCP Study to assess the constitutionality of the 2001 Amendments, Supreme Court should consider the extent to which 60/40 businesses have such attributes in determining whether they have a predominant focus on sexually explicit materials.

City's Burden

The City has proffered evidence in support of its claim that 60/40 businesses displayed a predominant, ongoing focus on sexually explicit materials or activities. On remittitur, Supreme Court is to assess whether that evidence, and any additional evidence that the City wishes to adduce, entitle it to a judgment in its favor on the basis of the criteria outlined above. In so doing, it is necessary to recall that "very little evidence is required" to uphold the constitutionality of the 2001 Amendments[12] (For the People, 6 NY3d at 80 ["On the question of how much evidence was required to support an ordinance regulating adult businesses, Justice Kennedy agreed with the plurality that `(a)s to this, we have consistently held that a city must have latitude to experiment, at least at the outset, and that very little evidence is required'" (quoting Los Angeles v Alameda Books, Inc., 535 US at 451 [Kennedy, J., concurring])]). Nonetheless, the City's evidence must be relevant to the "so transformed" issue. That is, it must also establish that materials that form the basis of its justification for the 2001 Amendments are indeed of an adult character.[13] The evidence presented by the City must also present a fair snapshot of the businesses that are the object of its claim.

Plaintiffs' Rebuttal

Supreme Court erred in finding that "[a]lthough the plaintiffs have devoted quite a substantial portion of their brief to proving that these reconstituted 60/40 clubs no longer resemble their pre-1995 forbears, this argument is entirely irrelevant and will be accorded no weight" (Ten's Cabaret, NYLJ, Apr. 19, 2010, at 34, col 1). In so doing, it deprived plaintiffs of their opportunity to be heard (see Matter of Quinton A., 49 NY2d 328, 334 n [1980] ["The essence of procedural due process is that a person must be afforded notice and an opportunity to be heard before government may deprive him of liberty or a recognized property interest"]). Specifically, it deprived them of their ability to cast doubt on the City's rationale for its ordinance (see For the People, 6 NY3d 63).

On remittitur, Supreme Court must therefore address any relevant evidence proffered by the plaintiffs to show that there has been a significant change in the character of 60/40 businesses.[14] Nonetheless, Supreme Court is not to consider evidence that is irrelevant to the question of whether those establishments continue to have a predominant focus on sexually explicit materials.[15]

Quantum of Evidence—Intermediate Scrutiny

Notwithstanding the simplified nature of proof required of municipalities by the United States Supreme Court and the Court of Appeals, "[i]mposing a level of intermediate scrutiny. . . requires more conviction of the connection between legislative ends and means than does the rational basis standard, but only in the sense of `evidence . . . [that] is reasonably believed to be relevant' to the secondary effects in question" (For the People, 6 NY3d at 81 [citations omitted]). On remittitur, Supreme Court should therefore assess the City's evidence in light of this somewhat heightened standard.

As-Applied Challenge

The plaintiffs in Ten's Cabaret also mounted an as-applied challenge to the 2001 Amendments. Although the plaintiffs concede that the as-applied challenge was "inartfully pleaded" the law is, of course, well settled that pleadings are to be construed liberally (CPLR 3026 ["Pleadings shall be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced"]).[16] To be sure, during a colloquy, Supreme Court itself posed the question of what might happen if it "decide[d] that several clubs don't have a dominant sexual purpose in their activities, but other clubs do[;] suppose half of them do and half of them don't," and the plaintiffs specifically raised the issue of an as-applied challenge during the same colloquy.[17] Thus, there is no merit to the City's contention that the issue was neither raised nor preserved. The City notes that in Stringfellow's of N.Y., the Court of Appeals stated that the 1995 Resolution was applicable even to establishments that "may legitimately claim that their facilities do not contribute to urban blight" (91 NY2d at 401). Significantly, the challenge in Stringfellow's was a facial challenge, not an as-applied challenge. Thus, the Court found it acceptable that some of the businesses not contributing to urban blight were necessarily swept up in the law (see id. ["To the extent that certain individual establishments may legitimately claim that their facilities do not contribute to urban blight, their argument does not impair the constitutionality of the challenged legislation, since `(t)he validity of a statute . . . is not to be determined from its effect in a particular case, but upon its general purpose and its effect to that end" (quoting City of Rochester v Gutberlett, 211 NY 309, 316 [1914])]). Nothing in the Court's decision forecloses an "as-applied" challenge to the ordinance, however.

Indeed, while the 2001 Amendments might be constitutional in most situations, there may be instances where the application of the ordinance might be an unconstitutional abridgment of First Amendment protections. In New York v Ferber (458 US 747 [1982]) the United States Supreme Court addressed how a legislative enactment should be treated when the number of potentially unconstitutional applications of a statute is small compared to the number of legitimate applications. After upholding a child pornography statute against a facial overbreadth challenge, the Court permitted an "as-applied" challenge against the constitutionality of the statute (id. at 773-774 ["whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied" (quoting Broadrick v Oklahoma, 413 US 601, 615-616 [1973])]). Given the possibility that the 2001 Amendments could curtail legitimate free speech, an as-applied challenge would be an appropriate means to challenge the application of the 2001 Amendments if the facial challenge against the ordinance fails. Supreme Court's decision states very few, if any, facts that can be used by this Court to resolve plaintiff's as-applied challenge. Instead, Supreme Court simply stated that "[m]erely because [plaintiffs] have introduced evidence that some topless clubs may not have an ongoing focus on adult activities, does not defeat the pattern established by [the City] of topless clubs having an ongoing focus of adult activities" (Ten's Cabaret, NYLJ, Apr. 19, 2010, at 34, col 1). Thus, Supreme Court gives no indication of any facts it took into account in arriving at its decision on the as-applied challenge, or whether it even considered them. Indeed, neither the decision nor the judgment makes any factual findings to help resolve the question of whether only some of the clubs were found to have a predominantly sexual focus or whether all of them were. This is particularly significant inasmuch as Supreme Court itself raised the question of differences between the clubs, and then requested briefing on the as-applied issue.

The result of Supreme Court's decision is that some of the nonsham clubs could be put out of business by a law that, in fairness, may not apply to them. As the plaintiffs in Ten's Cabaret preserved an "as applied" challenge, this Court will therefore remit the matter to Supreme Court for a decision setting forth its findings of fact as to the plaintiffs' as-applied challenge (General Instrument Corp., 99 AD2d at 461; see also IBE Trade Corp., 16 AD3d 132).

Accordingly, the judgment of the Supreme Court, New York County (Louis B. York, J.), entered May 19, 2010, insofar as appealed from, finding that the 2001 Amendments to the Zoning Resolution of the City of New York are constitutional with regard to bookstores and video stores, should be reversed, on the law, without costs, the finding of constitutionality vacated, and the matter remanded for further proceedings consistent with this opinion. The order and judgment (one paper) of the same court and Justice, entered April 23, 2010, finding that the 2001 Amendments to the Zoning Resolution are constitutional with regard to topless night clubs and bars, should be reversed, on the law, without costs, the finding of constitutionality vacated, and the matter remanded for further proceedings consistent with this opinion.

Judgment, Supreme Court, New York County, entered May 19, 2010, reversed, on the law, without costs, the finding of constitutionality vacated, and the matter remanded for further proceedings consistent with this opinion.

Judgment and order (one paper), same court, entered April 23, 2010, reversed, on the law, without costs, the finding of constitutionality vacated, and the matter remanded for further proceedings consistent with this opinion.