New York City Porn Rules OK’d by State High Court

ALBANY, N.Y. (CN) – New York City met its burden of proof needed to enforce a 2001 law regulating porn shops, sex shows and topless bars, the state’s highest court ruled unanimously Tuesday.

The decision by the New York Court of Appeals reverses a ruling on zoning restrictions and limitations on sex businesses that began during Rudy Giuliani’s mayoral tenure in the mid-1990s.

“It is evident as a matter of law that the City met its burden of showing that the adult establishments continued to have a predominant focus on sexually explicit materials and activities,” Judge Eugene Fahey wrote for the court. “It follows that the 2001 Amendments are facially constitutional.”

Judges Jenny Rivera, Leslie Stein, Michael Garcia and Rowan Wilson concurred. Chief Judge Janet DeFiore did not take part in the decision.

Finding that the Appellate Division erred, Fahey said “the city’s modest evidentiary burden related only to the first stage” of a 2002 ruling by the U.S. Supreme Court in the case Los Angeles v. Alameda Books.

New York City’s 1995 resolution defined an adult establishment as a commercial establishment in which a “substantial portion” of it includes “an adult book store, adult eating or drinking establishment, adult theater, or other adult commercial establishment, or any combination thereof.”

The Giuliani-era restrictions, made in the name of “quality of life,” ostensibly wiped out Manhattan’s densest concentration of adult video “bookstores,” peep shows and topless bars, in the Times Square area.

New York City introduced 60/40 regulation in 1998, deeming businesses “adult” if 40 percent or more of their area or stock involved sexual content.

Fahey wrote that the lower court had erred by “applying a rigidly mechanical approach to the determination of whether a predominant focus on sexually explicit entertainment remained.”

An appeal of this ruling to the U.S. Supreme Court is still possible. “We are disappointed by the decision and considering our options,” said Erica Dubno, an attorney representing several live entertainment clubs threatened by the city’s regulations.

In 2002, For the People Theatres of N.Y., which showed adult films, and JGJ Merchandise, an adult video store also known as Vishans Video and as Mixed Emotions, sued New York City, claiming its definitions of adult theater and adult bookstore in the 2001 amendments violated the First amendment.

Siding with the plaintiffs in 2003 at summary judgment, the Manhattan Supreme Court declared the 2001 amendments unconstitutional and enjoined their enforcement.

In January 2009, after a two-week trial, Judge Louis York found that certain bookstores and video stores that purport to operate on a 60/40 basis, but focus on adult materials, are adult establishments notwithstanding their 60/40 configuration.

Representatives of the city’s Corporation Counsel did not immediately respond to a request for comment.

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