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NY Court of Appeals Rejects Constitutional Challenge to Adult Establishment Zoning Regulations in NYC

Posted on: June 9th, 2017 by Art Leonard No Comments

Bringing possible finality to a lawsuit that has been bouncing back and forth between the Supreme Court, the Appellate Division, and the Court of Appeals for the past fifteen years, the New York Court of Appeals ruled unanimously on June 6 that 2001 amendments to the City’s zoning ordinance governing “adult establishments” do not violate the constitutional rights of businesses that provide sexually explicit materials or activities. Judge Eugene M. Fahey wrote the opinion joined by five members of the seven-member court.  Chief Judge Janet DiFiore did not take part in the case, and there is one vacancy on the court.  For the People Theatres of N.Y. v. City of New York, 2017 N.Y. LEXIS 1406, 2017 WL 2427295 (June 6, 2017).

The zoning ordinance was a major project of Mayor Rudolph Giuliani’s first term, as he had run for office contending that the city had been overrun by adult businesses which were believed to cause harmful effects to the community. Under U.S. Supreme Court precedents, such businesses cannot be banned outright due to First Amendment protection for expressive activity, but they can be regulated because of the “secondary effects” they cause, such as lowering property values in a community and attracting criminal activity.   A local government can take action to restrict where such businesses may operate by documenting the adverse secondary effects and showing that any regulation leaves enough places where adult businesses can operate that consumers can still access their goods and services.

Giuliani had the City Planning Department complete a study of secondary effects of sexually focused businesses, which “identified significant negative secondary impacts, including increased crime, diminished property values, reduced shopping and commercial activity, and a perceived decline in residents’ quality of life,” wrote Judge Fahey. Based on this 1994 study, supplemented by public hearings, the City Council adopted the 1995 Zoning Ordinance, establishing “regulations barring adult establishments from residential zones and most commercial and manufacturing zones, and mandating that, where permitted, adult businesses had to be at least 500 feet from houses of worship, schools, day care centers, and other adult businesses.”

Under these regulations most of the adult business in the city would have to either close down or relocate to remote locations. However, the court mentions evidence presented by the City in the ensuing lawsuits that most of the locations where such businesses could operate were fairly accessible by public transit, albeit distant from where most people live and work.  The Zoning Ordinance applied to any commercial establishment a “substantial portion” of which was “an adult book store, adult eating or drinking establishment, adult theater, or other adult commercial establishment, or any combination thereof.”  Such establishments generally exclude minors and focus their businesses on providing consumers with pornography and sex toys, providing peep shows, lap dances, strip shows, and the like.

The ordinance did not define “substantial portion,” and some businesses proposed to reconfigure their operations to avoid being labelled as “adult establishments” in order to remain in their existing locations. There was litigation around the ordinance itself, which was upheld against a constitutional challenge by the Court of Appeals.  The City adopted procedural guidelines to determine whether a particular business should be labeled an adult establishment.  These provided that “any commercial establishment with at least 40 percent of its customer-accessible floor/cellar area or stock-intrade used for adult purposes qualified as an adult establishment.  Some businesses adjusted by toning down their advertising and signage, moving sexually-oriented materials to back of their spaces, creating separate entries, expanding their non-sexually-oriented inventory, and so forth.   These were called 60/40 businesses.

The City quickly concluded that reducing the area or inventory but continuing to offer the sexually-related materials and exhibitions did not sufficiently change the character of these businesses, and began to cite the businesses for “sham compliance,” which led to new litigation. In 1999 the Court of Appeals ruled that, “sham” or not, once the City had adopted the 60/40 rule, it had to be enforced according to its terms, so businesses that technically complied could not be excluded from their locations under the zoning ordinance.

This led the City Council to adopt amendments in 2001, providing that even an establishment that met the 60/40 test could be considered an adult business depending on a list of criteria spelled out in the amendments. For example, any business operating peep booths, defined as enclosures “where adult movies or live performances are available for viewing by customers,” would qualify as adult bookstores, regardless of compliance with the 60/40 test on floor space and stock.

New lawsuits were launched by business owners in 2002 contesting the constitutionality of the 2001 amendments. One lawsuit was brought by bookstores selling pornography and sex toys, most of which operated peep booths, the other by dinner clubs that provided strip shows and, in some cases, lap dances by performers.  Their central argument was that the 1994 City Planning study could not be used to justify the new definitions of adult establishments because it was conducted with reference to the old definitions.  Thus, the plaintiffs argued, the old study could not serve to document the “secondary effects” that the City was obligated to prove if it wanted to restrict businesses based on the expressive content of their goods and services.  They argued that the alterations they had made substantially changed their businesses, lessening such secondary effects.

This case first made its way to the Court of Appeals in 2005, after Supreme Court Justice Louis York found the 2001 amendments unconstitutional and was reversed by the Appellate Division, which had ruled that a new “secondary impact” study was not required because the plaintiffs’ conversion of their businesses under the 60/40 rule had not really changed the sexual character of the businesses, and that the plaintiffs’ arguments to the contrary were not back up by evidence sufficient to shift the burden back to the City to prove “secondary effects.” The Court of Appeals then disagreed with the Appellate Division’s approach and sent the case back for further proceedings.

In that case, the Court of Appeals adopted a three-stage evidentiary requirement to analyze the status of the zoning regulations. First, the City had to show that it had a “substantial interest in regulating a particular adult activity,” and as to this it seemed that the 1994 City Planning study did the trick. That put the burden on the plaintiffs to show that the City’s evidence “does not support its rationale or provide evidence disputing the municipality’s factual findings.”  If the plaintiffs met that burden, the City would then have to show that the businesses had not so transformed themselves that they “no longer resemble the kinds of adult uses found to create the secondary effects” in the original study.

Where the Court of Appeals disagreed with the Appellate Division in 2005 was on the second stage, as to which the Court then stated that “plaintiffs had furnished evidence disputing the City’s factual findings, shifting the burden back to the City to supplement the record with evidence renewing support for its rationale.” Since new evidence had to be introduced, the case was sent back to Judge York for more fact-finding.  After further discovery and new inspections of the businesses by City officials, Justice York concluded in 2010 that the City had met the evidentiary standard set by the Court of Appeals, providing “substantial evidence” as to the “dominant, ongoing focus” of the bookstores and clubs on “sexually explicit materials and activities.”  Thus, he rejected the plaintiffs’ argument and upheld the constitutionality of the regulations.

The Appellate Division disagreed with Justice York, finding in a 2011 ruling that he had failed to specify “the criteria by which [he] determined that the plaintiffs’ essential nature was similar or dissimilar to the sexually explicit adult uses” underlying the 1995 Zoning Ordinance and had “failed to state the particular facts on which” he based his judgment. The case went back to Justice York, who composed a new opinion, making detailed findings of fact based on the prior hearing record and, this time, concluded that the alterations had, indeed, changed the overall character of the businesses.  He concluded that the plaintiffs “no longer operate in an atmosphere placing more dominance of sexual matters over nonsexual ones.  Accordingly,” he wrote in 2012, “there is no need for the 2001 Amendments.  On their face, therefore, they are a violation of the free speech provisions of the U.S. and State Constitutions.”

This time the Appellate Division affirmed Justice York’s ruling in a 2015 decision, but unfortunately he was not around to learn of this vindication, having passed away in November 2014. In its 3-2 decision by a five-judge bench, the Appellate Division majority focused on four criteria to determine whether the “60/40 businesses” could be considered “adult establishments” under the Ordinance: “(1) the presence of large signs advertising adult content, (2) significant emphasis on the promotion of material exhibiting ‘specified sexual activities’ or ‘specified anatomical areas,’ as evidence by a large quantity of peep booths featuring adult films, (3) the exclusion of minors form the premises on the basis of age, and (4) difficulties in accessing nonadult materials.”

Going with a fine-tooth comb through the factual findings recorded in Justice York’s most recent opinion, the majority of the court decided that both the adult bookstores and the adult clubs had satisfied at least three out of the four criteria, and thus should not be considered adult establishments. They had reduced their signage, de-emphasized the sexually-oriented aspects, and fell short only on one aspect of the checklist: they excluded minors from admission.  The dissenters, to the contrary, concluded that the City had “sustained its burden as to sham compliance by demonstrating that by and large the essential character of the 60/40 businesses has not changed, even if their physical structure has.”

For example, the dissenters could not believe that bookstores operating numerous peep booths for viewing pornography did not meet the test of having a predominant sexual focus, even if they had reduced their signage, and rearranged their layout to make non-adult materials more accessible. Similarly, they could not believe that an establishment that providing “topless dancing by multiple dancers on a daily basis for approximately 16 to 18 hours a day with lap dancing provided in both the adult and the nonadult areas” could not be deemed to be adult establishments.

The City appealed, and the Court of Appeals now agreed with the dissenters in the Appellate Division. They criticized the majority in that court, claiming that it had placed too high an evidentiary burden on the City, misconstruing the Court of Appeals’ prior ruling. “Properly understood,” wrote Judge Fahey, “the trial court’s task was to decide whether the City had relevant evidence reasonably adequate to support its conclusion that the adult establishments retained a predominant, ongoing focus on sexually explicit activities or materials.”  Where the majority in the Appellate Division went wrong, wrote Fahey, was by a “applying a rigidly mechanical approach to the determination of whether a predominant focus on sexually explicit entertainment remained. . . .  As the dissent observed, the majority’s four-prong checklist, with each factor weighing equally, placed subsidiary considerations such as signage on equal footing with the touchstone issue of emphasis on the promotion of sexually explicit activities or materials.”

The Court also criticized the Appellate Division for losing “sight of the fact that the issue was whether there was sham compliance. A bookstore could very well engage in such a sham by removing large signs, allowing minors to enter, and ensuring that non-adult materials are accessible, and yet retain a focus on sexual materials.  A store that stocks non-adult magazines in the front of the store but contains and prominently advertises peep booths is no less sexual in its fundamental focus just because the peep booths are in the back and the copies of Time magazine in the front.  The same is true of the adult eating and drinking establishments.  A topless club is no less an adult establishment if it has small signs and the adjoining comedy club, seating area, or bikini bar is easy to access.”

The practical effect of the Court’s ruling seems to be that as long as a bookstore is selling porn and operating peep booths, it is going to be subject to the zoning ordinance, and the same is likely to be true of any club that is going to provide strip shows, regardless how it reorganizes its space, modifies its signage, or sets its policies on access by minors.

It is ironic that a nearly-quarter-century litigation battle set off by the moralistic Giuliani Administration would be resolved during the De Blasio Administration, but these things have a momentum of their own, and the City Law Department’s mandate was to defend the work product of the City Council, specifically the 2001 Amendments (also a product of the Giuliani Administration, in its final year). The Court’s decision rejecting the constitutional challenge to the 2001 Amendments does not necessarily end the matter, since the plaintiffs could seek U.S. Supreme Court review as to the 1st Amendment aspects of the ruling.  But the New York Court of Appeals has traditionally construed the state constitution to provide more protection for expression than the federal constitution.  But the Court of Appeals grounded its analysis firmly in U.S. Supreme Court decisions, so the case is subject to potential Supreme Court review.  The likelihood that the current Supreme Court would be interested in this case seems rather slim, however.

Giuliani’s efforts did have their intended effect in sharply reducing the number of businesses that could be deemed “adult establishments” by any definition. Perhaps now would be the time for the small number of remaining businesses that were attempting to avoid the zoning rules by rearranging their space, inventory and activities to go back to the political process and the consumers who want to access their goods and services to seek a legislative change.  The Court’s decision says that the City can do what it has done, but does not pose any barrier to the City adopting a less restrictive approach.

NY Appellate Division Panel Declares Amended NYC Adult Zoning Ordinance Unconstitutional

Posted on: July 22nd, 2015 by Art Leonard No Comments

Adding another chapter to the long-running two-decade litigation saga of New York City’s controversial adult uses zoning ordinance, a 5-judge panel of the New York Appellate Division, 1st Department, based in Manhattan, ruled  by a 3-2 vote on July 21, 2015, that the 2001 Amendments to the regulation governing location of adult eating and drinking establishments and adult video and book stores unconstitutionally abridge freedom of speech protected by the First Amendment of the U.S. Constitution.  The majority of the panel voted to affirm a 2012 ruling by the late New York County Supreme Court Justice Louis B. York, and to permanently enjoin the City from enforcing the amendments, thus tossing a political hot potato to the De Blasio Administration, which must decide whether to ask the Court of Appeals to review the decision.  For the People Theaters of N.Y., Inc. v. City of New York, 2015 N.Y. Slip Op. 06200, 2015 WL 4429048, 2015 N.Y. App. Div. LEXIS 6068.  Justice Barbara R. Kapnick wrote the opinion for the court.

Prior to 1995, New York City made no distinction between adult (sexually-oriented) businesses and other businesses under its zoning ordinances.  Such businesses could be located anywhere in the city, and some city officials thought there were too many such businesses concentrated in prime commercial and residential locations.  Responding to the direction of U.S. Supreme Court rulings that specified that local governments could impose zoning restrictions on adult businesses if the governments could show that the presence of those businesses was causing undesirable “secondary effects,” such as increased crime, decreased property values, reduced commercial activities, and erosion of community character, the Department of City Planning “began a comprehensive assessment of the impact of adult establishments on the quality of urban life” in 1993, publishing its study in 1994 documenting such effects in the city.  In 1995, the city government amended its zoning resolution to ban “adult uses” from all residential zones and most commercial and manufacturing districts.  In those non-residential areas where the adult uses were not completely banned, they were not allowed to be closer than 500 feet to a “house of worship,” a school, or a day care center.  The effect of the new zoning resolution would relegate such businesses to a handful of remote locations where it is unlikely they would attract sufficient customers to stay in business.

Key to enforcement of the ordinance, of course, was the definition of “adult establishment.”  The resolution’s definition, which was subsequently challenged as unduly vague for constitutional purposes, was 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, of any combination thereof.”  In the case of book stores, the resolution applied to those having a “substantial portion” of their “stock-in-trade” in printed or video depictions of “specified sexual activities” or “specified anatomical areas,” and adult eating or drinking establishments were those that “regularly” featured live performances or movies “characterized by an emphasis on. . . specified sexual activities” or “specified anatomical areas” or where employees regularly exposed “specific anatomical areas” to patrons as part of their employment.  An essential feature of an adult establishment, of course, was that minors were excluded from the premises.  The attempt to describe adult businesses without using sexually-charged language resulted in this bizarre and somewhat vague wording.

Many sexually-oriented businesses that didn’t want to be exiled to the remote areas allowed for them under the resolution decided to alter their premises in an attempt to escape the label of “adult business,” but, they argued, the resolution was so vague that they couldn’t be sure how to comply.  The city responded by adopting a “guideline” specifying that the phrase “substantial portion” meant that any business with “at least 40 percent” of its accessible floor area or stock used for “adult” purposes qualified as an adult establishment.  Many businesses then redesigned their premises so as to reduce the portion devoted to sexually-oriented goods or activities to less than 40%, although many others just went out of business, drastically reducing the number of adult businesses in the city and the virtual disappearance of porn theaters.  The City instituted legal proceedings to close down businesses that didn’t comply with the 60/40 rule, but discovered that many of the businesses in residential and prime commercial locations had successfully reduced their “adult” areas to comply, and so there were still many such businesses in areas where some city officials thought they shouldn’t be operating.

The City then came up with the “sham compliance” theory, arguing that although these businesses had technically complied with the 60/40 rule, they were nonetheless still deriving most of their revenue from sexually-oriented goods and performances, and so were really operating as adult businesses in violation of the Zoning Resolution.  In 1998 the City began to bring “nuisance” lawsuits against such businesses, attempting to get them shut down.

From the time the resolution was first passed in 1995, businesses began filing lawsuits attacking its constitutionality.  The businesses were unsuccessful at first, but finally scored with the claim that the City could not go after businesses that were in technical compliance under the “sham” theory.  The Court of Appeals ruled in 1999 in a case involving a gay-oriented adult establishment on the Upper West Side, Les Hommes, that the 60/40 guidelines must be enforced as written, and evidence that the non-adult inventory didn’t generate much revenue was irrelevant.  “Either the stock is available or accessible, or it is not,” wrote the Court of Appeals; “Either the appropriate amount of square footage is dedicated to non-adult uses, or it is not.”

The City reacted to this ruling with new amendments to the zoning resolution adopted by the City Council in 2001.  Now an “adult establishment” would be a place that “regularly features in any portion of such establishment” live performances with an emphasis on “specified anatomical areas” or “specified sexual activities,” and that excluded or restricted attendance by minors, regardless of what portion of the premises were devoted to such activity.  As to book and video stores, the amendments adopted a detailed analysis attempting to get at the “sham compliance” argument, focusing on such details as whether a customer had to pass by the adult materials in order to get to the non-adult materials, whether the business included “peep booths” for viewing sexually-oriented videos, whether somebody would necessarily be exposed to “adult” materials when paying for their purchases, whether “other printed or visual material” was offered for sale only, but “adult” material was also available for rental, whether the adult titles on offer outnumbered the non-adult titles, whether minors were restricted from parts of the store that featured non-adult materials, whether signage advertising availability of adult materials is “disproportionate in size relative to a sign that advertises the availability of ‘other printed or visual material'” as compared to the proportions of each kind of material offered in the store or the proportion of floor space devoted to them, whether window displays emphasized adult materials using the same sort of proportionality test, and a catch-all provision giving the commissioner of buildings discretion to decide whether sale or rental of adult materials was “a substantial purpose of the business.”  In other words, these amendments were intended to close down the 60/40 businesses that were still trying to operate in areas restricted by the zoning resolution.

Some of the businesses mounted a new legal challenge in 2002.  Their main argument was that if the City wanted to restrict these businesses, it could not rely on the City Planning Department’s original 1994 Study, because that had documented negative secondary effects associated with the kinds of unregulated adult businesses that thrived in the city at that time.  Instead, argued the businesses, they had modified their operations in order to comply with the resolution, so a new study should be required to prove that the altered businesses also caused such secondary effects.  Otherwise, these amendments, which clearly were regulating speech-related activity because of its content, would be unconstitutional under the First Amendment.  In the absence of proof of secondary effects, they argued, the City’s enforcement activities were targeting them because of the expressive content of their goods and performances, which is not permissible under U.S. Supreme Court precedents.

The challenges ended up before Judge Louis York, who denied the City’s motion for summary judgment on September 9, 2003, ruling that the City was required to provide evidence to support its contention that these new restrictions were necessary and could not rely on the 1994 study.  The Appellate Division reversed Justice York, and the case went to the Court of Appeals, which sent it back to York for reconsideration in light of a new U.S. Supreme Court ruling from 2002.  Justice York held trials in the two pending cases involving more than twenty “60/40” bookstores and ten “60/40” clubs.  On April 8, 2010, York ruled that the City had met its burden of showing that these businesses were “adult establishments” subject to the zoning resolution, and, of course, the businesses appealed.  The Appellate Division reversed York again, stating that “while the 2001 Amendments might be constitutional in most situations, there may be instances where the application of the ordinance might be an unconstitutional abridgement of First Amendment protections,” and sent the case back to York for further proceedings.  The parties submitted to York proposed findings of fact responding to the issues posed by the Appellate Division.  The City argued that the evidence it had previously presented to York continued to justify the conclusion that all “60/40” businesses continued to have a “predominant” sexual focus. This time York, who had actually visited and personally inspected the businesses, ruled against the City on August 30, 2012, issuing an injunction against enforcement of the 2001 Amendments against the businesses that had brought these two lawsuits. The City appealed again, and while the appeal was pending Justice York passed away in November 2014.

Writing for the majority in the new decision issued on July 21, Justice Kapnick said that the question at this point, as the Court of Appeals had specified the last time it ruled on these issues, was “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 formulae is merely a sham — as the City contends.”  In its previous decision, the Appellate Division identified four criteria for Justice York to use in making this determination: (1) the presence of large signs advertising adult content, (2) significant emphasis on the promotion of materials exhibiting ‘specified sexual activities’ or ‘specified anatomical areas’ as evidence by a large quantity of peep booths featuring adult films, (3) the exclusion of minors from the premises on the basis of age, and (4) difficulties in accessing non-adult materials.  “We instructed that if the trial court found that most, if not all, 60/40 establishments featured any or all of the first three of these attributes, the City would have met its burden of proof.”

In reviewing these factors, Justice York had concluded that the reconfiguration of these businesses was not “sham” compliance, noting the reduced size of signs, the toning down of window displays, the relocation of sexually-oriented materials to the back of stores, the reduced emphasis on adult materials in the overall context of the businesses, and that many of the book and video stores allowed minors on the premises, sealing off from their access only the sections with adult content.  He also noted testimony from one witness that “minors are excluded because they tend to come in groups and disrupt the store.”  “This evidence is not indicative of a predominant sexual focus in most of the stores,” wrote Justice Kapnick, “since nearly half of the stores do not restrict the admittance of minors at all.”  She also observed that the evidence in the record did not suggest that there was difficulty accessing non-adult goods in any of the stores.  Turning to the clubs, she concurred with Justice York’s conclusion that although all the clubs did feature live adult-oriented performances, the reduction of floor space devoted to that activity, together with the addition of many non-adult uses, such as restaurants, pool tables, and sports lounges, and the presentation of non-adult musical presentations, as well as changes in signage, were sufficient to escape being labeled adult businesses, even though the clubs generally excluded minors from the premises.

Justices Angela Mazzarelli and Paul Feinman joined Kapnick’s opinion.

Justice Richard T. Andrias wrote a vehement dissent, joined by Justice Leland G. DeGrasse, accusing the majority of a “mechanical and mathematical approach, under which the predominant sexual focus in the 60/40 businesses’ activities is quantitatively outweighed by signage, policies towards minors, and layouts.”  He insisted that this was “inadequate under the dictates of the Court of Appeals and this Court, and elevates the City’s burden of proof” above what had been discussed in the prior appellate rulings in this case.  “In identifying certain factors relevant in assessing the character of the adult establishments,” he continued, “this Court did not call for a mechanical application by which each factor is to be weighted equally and tallied to arrive at a quantitative conclusion.”  He contended that in its previous decision, the Appellate Division “recognized that if any one of the factors established that the 60/40 businesses displayed a predominant, ongoing focus on sexually explicit materials or activities, and that there had not been a significant change in their character, it could provide a sufficient basis to hold the 2001 Amendments constitutional.”  Andrias contended that the record “fairly supports the City’s contention that the adult establishments reviewed emphasized sexual activities or materials over nonadult materials.”

Simply stated, the intention of the City Council in adopting the 2001 Amendments, in the view of the dissent, was to rid residential and prime commercial areas of the city from sexually-related businesses.  The dissenters contend that so long as a store is selling or renting sexually-oriented goods or services as a substantial part of its business, it should be considered an adult business barred from operating in such areas, regardless whether signage and the face it presents to the street has been toned down and it has added other non-adult materials and activities to its business plan.  As a practical matter, they argue, a business that presents strippers and sells pornography is an adult business, regardless of the signage and the allocation of most of its floor space to pool tables, non-sexual videos and books and the like.  The majority, on the other hand, agreed with Justice York that these remaining 60/40 businesses, which had altered their physical layout and promotional efforts to downplay their sexually-related goods and services, should be allowed to continue to operate in the residential and commercial zones unless the City could show that these altered businesses generated the undesirable effects that were documented for their unregulated predecessors prior to 1995.

In light of the sharp split between the majority and dissent, it would not be surprising if a request by the City to the Court of Appeals to review this decision would be granted, although it is difficult to predict how that court would rule in light of the complete turnover in personnel since it last addressed these issues.  (Governor Cuomo now has two pending vacancies to fill, after which the overwhelming majority of that bench will be Democratic appointees.)  The New York Law Journal quoted a NYC Law Department spokesman’s same-day response that the decision “is under review.”  If the De Blasio Administration wants to continue the anti-sex business approach of the Giuliani and Bloomberg Administrations, an appeal would seem to be mandatory.  But this might be a good time to make a quick assessment whether in fact there are any real problems in terms of significant negative effects from the remaining 60/40 businesses that have continued to operate while the issue has been litigated, and to consider putting this long-running legal battle to rest.  The City Council might also want to play a role at this point, since the handiwork of its 2001 predecessors (who have all been superseded due to term limits) is at the center of the litigation.

The lead attorney for the businesses was Herald Price Fahringer, who passed away in February after having litigated these issues through numerous trials and appeals since 1995.  Other attorneys who have been representing the businesses include Erica T. Dubno and Nicole Neckles of Fahringer’s law firm, and Edward S. Rudofsky and Martin P. Mehler representing other businesses involved in the case.  Corporation Counsel Zachary W. Carter will undoubtedly take a lead role in advising Mayor De Blasio about how to proceed from this point.