Summary
reasoning that as a matter of statutory interpretation, "the interpretation urged by the City would effectively excise the ‘substantial portion’ component from the enactment in cases of eating or drinking establishments"
Summary of this case from 725 Eatery Corp. v. City of New YorkOpinion
Argued March 30, 2000.
May 4, 2000.
CROSS APPEALS, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered October 28, 1999, which (1) reversed, on the law, an order of the Supreme Court (Stephen G. Crane, J.), entered in New York County, (a) granting defendants' motion to renew their application under Administrative Code of City of New York § 7-714 to vacate an injunction which had barred adult entertainment at defendants' club, and (b) permitting the club to reopen pursuant to plans approved by the New York City Department of Buildings which created a 60% nonadult use to 40% adult use configuration, over the opposition of plaintiffs as to the applicability to adult eating or drinking establishments of the substantial portion language of New York City Amended Zoning Resolution § 12-10; (2) denied defendants' application pursuant to section 7-714; and (3) granted plaintiffs a permanent injunction barring the use of the premises for an adult use. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed the order of the Supreme Court, properly made?"
Michael D. Hess, Corporation Counsel of New York City (Margaret G. King, Gabriel Taussig, Elizabeth S. Natrella, Karen M. Griffin and Kerri A. Devine of counsel), for respondents-appellants.
Simon H. Rothkrug, for appellants-respondents.
Zane Rudofsky, New York City (Edward S. Rudofsky, Charles F. Axelrod and Arlene H. Schechter of counsel), for Council of Regulated Adult Liquor Licensees, amicus curiae.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs to defendants, and the order of Supreme Court reinstated. The certified question need not be answered on the ground that it is unnecessary.
New York City Zoning Resolution § 12-10 provides that, in order to qualify as an "adult establishment" subject to municipal regulation, a "substantial portion" of a commercial establishment must include the following adult uses: "an adult book store, adult eating or drinking establishment, adult theater, or other adult commercial establishment, or any combination thereof" (see, Amended Zoning Resolution of City of N.Y. § 12-10; City of New York v. Les Hommes, 94 N.Y.2d 267, 270) The Zoning Resolution goes on to describe an "adult eating or drinking establishment" as an eating or drinking establishment that "regularly features" specified adult activities. Finally, the Zoning Resolution defines "substantial portion" by the percentage of floor area devoted to the abovementioned adult uses.
The sole question now before this Court is one of statutory interpretation. Dezer Properties, Inc. contends that "substantial portion" analysis is applicable in determining whether its club, only a part of which is dedicated to adult activities, is an "adult establishment" subject to regulation. The City, by contrast, contends that any adult activity in a club in and of itself qualifies the entire club as a regulable "adult establishment."
We agree with Supreme Court and the Appellate Division, each of which concluded that the "substantial portion" component applied in determining whether Dezer's club constituted an "adult establishment" subject to municipal regulation ( 259 A.D.2d 116, 121; see also, 1995 City Planning Commn Report on Adult Use Zoning Amendments, at 49-51; City of New York v. Wiggles, 178 Misc.2d 1007, 1013-1014; City of New York v. Show World, Inc., 178 Misc.2d 812, 816-817). By so construing the ordinance, we accord meaning to every section of the City's own Zoning Resolution, whereas the interpretation urged by the City would effectively excise the "substantial portion" component from the enactment in cases of eating or drinking establishments. While unanimous in this reading of the Zoning Resolution, the Appellate Division nevertheless disagreed concerning actual application of the "substantial portion" component to the facts of this case. The City, however, conceded before Supreme Court that Dezer allocated less than a "substantial portion" of the club's floor area to adult activities (see, Transcript of Mar. 16, 1999, Oral Argument; see also, 259 A.D.2d, at 120, 122, supra). Thus, the issue was not properly before the Appellate Division and cannot be reached by this Court.
Order reversed, with costs to defendants, and order of Supreme Court, New York County, reinstated, in a memorandum. Certified question not answered upon the ground that it is unnecessary. Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.