(In 2nd paragraph, corrects vote to 5-0, not 6-0)
By Jonathan Stempel
NEW YORK, June 6 (Reuters) - New York City may enforce a 2001 law to reduce the number of bookshops, dancing clubs and video stores offering sexual content, without violating owners’ First Amendment rights, New York state’s highest court ruled unanimously on Tuesday.
The 5-0 decision by the state Court of Appeals reversed a lower court ruling and handed the city a major victory in its two-decades-long effort to stop the proliferation of “adult” establishments.
“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,” making the law “facially constitutional,” Judge Eugene Fahey wrote.
Erica Dubno, a lawyer representing various business owners, and Edward Rudofsky, who represented the Pussycat Lounge and Ten’s Cabaret, said separately that they were disappointed with the decision and would review their clients’ options.
A spokesman for the city’s law department did not immediately respond to requests for comment.
The 2001 law sought to plug a gap created six years earlier, when the City Council banned dancing clubs and erotic stores from residential and most commercial areas, and from within 500 feet of similar businesses, schools and places of worship.
Those restrictions were adopted in connection with Mayor Rudolph Giuliani’s push to address quality-of-life issues, including crime.
After the restrictions were challenged in court, the city in 1998 created the “60/40” test, deeming businesses “adult” if at least 40 percent of their area or stock involved sexual content.
But it soon realized that many businesses were engaging in “sham” compliance, such as by stuffing PG-rated videos in back rooms while maintaining their focus on X-rated wares.
So in 2001, the city declared that businesses meeting specific criteria, such as offering topless dancing or peep booths, would qualify automatically as “adult.”
That would have required many businesses to close or move.
A Manhattan judge declared the law unconstitutional in August 2012, and was affirmed in a 3-2 state appeals court ruling in July 2015.
Fahey, however, said the appeals court erred by adopting a “rigidly mechanical” approach that defeated the city’s substantial interest in curbing sexually explicit businesses.
He said it ignored the reality that “quintessentially sexual activity” such as lap dances, or topless dancing for 16 to 18 hours a day, could qualify businesses as adult establishments.
The case is For the People Theatres of N.Y. Inc et al v. City of New York, New York State Court of Appeals, No. 59. (Reporting by Jonathan Stempel in New York; Editing by Dan Grebler)