Owner of nude dance club loses fight over city zoning ordinance

By The Associated Press

06.08.02

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ALBANY, N.Y. — A federal judge has rejected claims that city zoning effectively outlaws adult entertainment and violates the constitutional rights of an owner of a nude dance club.

U.S. District Judge Frederick Scullin refused June 4 to block Albany's zoning ordinance. An injunction was requested last year by Linda DeRusso, owner of Sinsations. She had run her business in a mostly commercial area since 1983, sought compensatory damages and claimed violation of her First Amendment rights.

"She was shut down about a month and a half ago when the city couldn't wait for this decision," DeRusso's attorney, David Brickman, said June 6. "She's since converted her leased premises to a tavern."

Timothy Austin, attorney for Albany, said the City Council had looked at various municipal ordinances before adopting its 1999 zoning amendments. The purpose, he said, was "to eliminate the possibility that the secondary effects that arise from adult entertainment places would be felt by schools, churches and residential areas."

“Secondary effects” include reduction in surrounding property values, increased crime and deterioration of historic and scenic values, the city argued.

Scullin refused to issue the preliminary injunction after ruling that there was little likelihood of DeRusso winning on the merits of the case. He cited the test laid out in the 1986 Supreme Court ruling in City of Renton v. Playtime Theatres Inc., that the law must provide for "reasonable alternative avenues of communication."

Under Albany's zoning change, adult establishments must be in M-1 commercial zoning districts. They also must be 1,000 feet away from any similar business, or school, church, park, playground, playing field or residential zone. Existing businesses in violation had one year to move.

City officials argued that the ordinance still allows adult entertainment businesses in approximately 10% of Albany, and that 13 potential sites exist.

A survey for DeRusso showed "somewhere between zero and six" potential sites within Albany's M-1 zoning districts. Brickman said there are no adult businesses in Albany now, and no possible sites, in part because of the restrictions. Meanwhile, several adult businesses operate in suburban Colonie, and in nearby Schenectady, he said.

"The Court, at least for purposes of this analysis, finds that the M-1 zoning districts provide a sufficient 'reasonable opportunity (for adult entertainment establishments) to open and operate,'” Scullin ruled. He noted the factual question over possible sites available, but wrote that even if there are only six, DeRusso is unlikely to win the argument that six are too few to provide a reasonable alternative.

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