This OPPN supplements OPPN #6/98 and is issued in response to the concerns expressed by the Court of Appeals in The City of New York v. Les Hommes, et al. (December 20, 1999) with respect to the failure of OPPN #6/98 to address considerations for determining whether a book store=s compliance with the adult use provisions in the New York City Zoning Resolution is a sham. The Court of Appeals noted that OPPN #6/98 contained no factors other than the amount of stock and floor space to make a determination of compliance. This OPPN sets forth additional considerations or factors not specifically set forth in OPPN #6/98 to assure that the adult use provisions are not undermined by sham efforts at compliance.
An establishment's compliance with the adult use provisions of the Zoning Resolution must be bona fide. In order to determine whether compliance with the substantial portion requirements in the definition of "adult establishment" in Zoning Resolution '12-10 ("ZR '12-10") is bona fide, the following additional factors shall be considered:1
- The non-adult inventory or section is offered or promoted on a different basis than the adult stock-in-trade or section where the difference serves to make the adult stock-in-trade or section significantly more accessible by virtue of being more prominent, more available or more convenient than the non-adult inventory or section.
- There is a significantly greater number of different adult titles than the number of different non-adult titles.
- The layout requires customers to pass through an adult section in order to reach a non-adult section.
- Business transactions involving non-adult inventory or non-adult activity are conducted in the adult section.
- The layout leaves the adult section visible from the non-adult section or otherwise fails to separate the adult and non-adult sections.
- There is no permanent partition between the adult and non-adult sections.
- There is significantly less customer activity in the non-adult section as compared to the adult section.
- There are significantly fewer retail transactions regarding non-adult inventory as compared to adult stock-in-trade based on observations during inspections or as evidenced by business records, or both.
- The non-adult section is closed for business when the adult section is open for business.
- There are posted age restriction signs in areas other than the adult section.
- The activity in the adult section interferes with the activity in the non-adult section.
- There are inconsistent charges for entertainment or other offerings in the non-adult section as compared to the adult section.
1 In light of pending litigation, factors evidencing sham compliance are set forth for all types of establishments, including eating or drinking establishments, theaters and an other facility as referred to in ZR '12-10(d). However, pending a final judicial resolution of the issue, the Department continues to adhere to its interpretation of ZR '12-10 that a "substantial portion" analysis is not used to determine whether an establishment is an "adult eating or drinking establishment," "adult theater," or "other adult commercial establishment."