This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 59 

For the People Theatres of N.Y. 

Inc., &c.,

 Plaintiff,

JGJ Merchandise Corp., &c.,

 Respondent,

 v.

City of New York, et al.,

 Appellants.

---------------------------------

Ten's Cabaret, Inc., &c., et al.,

 Respondents,

 v.

City of New York, et al.,

 Appellants.

Ingrid Gustafson, for appellants.

Erica T. Dubno, for respondent JGJ Merchandise Corp.

Edward S. Rudofsky, for respondents Ten's Cabaret, Inc.

et al.

First Amendment Lawyers Association, amicus curiae.

FAHEY, J.:

Through a long, complicated, and confusing history, the

litigants have struggled over the application of zoning

regulations as they apply to New York City's adult entertainment

industry. We hold that the City has met its burden of

demonstrating that the establishments affected by its 2001 zoning

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amendments retained a predominant focus on sexually explicit

materials or activities. It follows, under our 2005 decision in

this case, that the amendments do not violate plaintiffs' First

Amendment rights.

I.

In 1994, the New York City Department of City Planning

(DCP) completed a study of sexually focused businesses, namely

"adult video and bookstores, adult live or movie theaters, and

topless or nude bars," and 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. After public hearings,

the City's Planning Commission issued a report, adopting the

findings and conclusions of the study and noting that the

businesses with adverse secondary impacts had "a predominant,

on-going focus on sexually explicit materials or activities." 

The next year, after further public hearings, the New

York City Council added zoning 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.

The 1995 Zoning Ordinance defined an "adult

establishment" as a commercial establishment a "substantial

portion" of which was "an adult book store, adult eating or

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drinking establishment, adult theater, or other adult commercial

establishment, or any combination thereof." In turn, an "adult

book store" (a term meant to embrace stores selling or renting

sexually explicit video material, as well as books and magazines)

was defined as having a "substantial portion" of its

"stock-in-trade" in, among other things, printed matter or video

representations depicting "specified sexual activities" or

"specified anatomical areas," as defined in the regulations. An

"adult eating or drinking establishment" was defined as an eating

or drinking establishment that excludes minors and "regularly

features" live performances or films emphasizing "specified

sexual activities" or "specified anatomical areas," or where the

employees regularly expose "specified anatomical areas" to

patrons as part of their employment.

Certain adult establishments, including Stringfellow's

of New York, Ltd. (the predecessor in interest of plaintiff Ten's

Cabaret, Inc.), challenged the 1995 Ordinance, as violating their

rights of free speech protected by the First Amendment of the

Federal Constitution and article I, § 8 of the State

Constitution. This Court held that the Ordinance was

content-neutral because it was not "purposefully directed at

controlling the content of the message conveyed through adult

businesses," but instead "was aimed at the negative secondary

effects caused by adult uses, a legitimate governmental purpose"

(Stringfellow's of New York v City of New York, 91 NY2d 382, 397,

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399 [1998]). We further ruled that the Ordinance was not broader

than necessary, since it "protect[ed] only those communities and

community institutions that are most vulnerable to . . . adverse

impacts" (id. at 400), and that reasonable alternative avenues of

communication were assured, because the zoning "allow[ed] adult

businesses to remain in districts that permit a wide mix of

commercial, retail, entertainment and manufacturing uses" and, in

almost every instance, were "within a 10-minute walk from a

subway line or a major bus route" (id. at 403). The 1995

Ordinance was "not constitutionally objectionable" (id. at 406)

under the standards of Renton v Playtime Theatres, Inc. (475 US

41 [1986]) and Matter of Town of Islip v Caviglia (73 NY2d 544

[1989]). Although we did not use the term "intermediate

scrutiny" in Stringfellow's, it is clear that we applied this

standard insofar as we determined whether the ordinance was

narrowly tailored to serve a substantial governmental interest

and allowed for reasonable alternative channels of communication.

Meanwhile, the City's Department of Buildings and its

Planning Commission, in an effort to give clarity to the concept

of an establishment's "substantial portion," determined in a 1998

Operation Policy and Procedure Notice that any commercial

establishment with at least 40 percent of its customer-accessible

floor/cellar area or stock-in-trade used for adult purposes

qualified as an adult establishment. Thus emerged the so-called

60/40 test, which was applied to identify adult bookstores and

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adult eating or drinking establishments alike. 

As the City began to enforce the 1995 Ordinance, it

concluded that adult establishments were achieving technical

compliance with the 60/40 test, but without altering their

predominant focus on sexually explicit activities or materials. 

As the City saw it, the 60/40 businesses were engaged in a

"sham." In one case, the City sought to shut down a store that

complied with the test, insofar as just 24% of its stock

consisted of adult videos, but where the nonadult videos were

offered only for sale, not for rent, did not sell profitably, had

been supplemented very modestly, and were located in a back room. 

This Court ruled in City of New York v Les Hommes (94 NY2d 267

[1999]) that the zoning resolutions must be enforced as written,

without considering such factors as whether the nonadult stock

was unprofitable or located in a remote part of the premises.

DCP then applied to the Planning Commission for

amendments to the ordinance. The Planning Commission held

further public hearings and issued a report endorsing the

proposed amendments. In 2001, the City Council approved

significant changes to the zoning regulations, greatly reducing

the significance of the 60/40 test.

With respect to "adult eating or drinking

establishments," the 2001 Amendments removed "substantial

portion" from the definition, providing instead that a venue is

covered if it regularly features live performances characterized

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by an emphasis on certain "specified anatomical areas" or

"specified sexual activities" in any portion of the

establishment, regardless of whether it limits those performances

to less than 40% of its floor area. In other words, a club

featuring topless or nude dancers qualifies as an "adult eating

or drinking establishment" no matter the proportion of its space

devoted to adult entertainment.

With regard to adult bookstores, the 2001 Amendments

formally kept the 60/40 test, with the added provision that if a

store passes the test, but meets at least one of eight criteria,

then the store's non-adult material will not be considered

stock-in-trade for the purpose of the "substantial portion"

analysis. For example, if a store has peep booths, i.e.

enclosures "where adult movies or live performances are available

for viewing by customers," then it qualifies as an adult

bookstore, no matter how many nonadult video discs and magazines

it stocks.

The 2001 Amendments are the subject of the actions that

we now consider, for the second time, today.

II.

In 2002, plaintiffs For the People Theatres of N.Y.,

Inc., which showed adult films, and JGJ Merchandise Corp., an

adult video store also known as Vishans Video and as Mixed

Emotions, brought an action against the City, its Mayor, the

Director of City Planning, and the Commissioner of Buildings

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(collectively, the City). Both companies had reconfigured their

establishments prior to the 2001 Amendments to comply with the

60/40 test. Plaintiffs sought a judgment declaring the

definitions of "adult theater" and "adult bookstore" in the 2001

Amendments to be facially unconstitutional, as a violation of

free speech. They argued principally that the City failed to

support the amended regulations with a study aimed at the

specific secondary effects of the class of 60/40 businesses. At

the same time, plaintiffs Ten's Cabaret, Inc., Pussycat Lounge,

Inc., and two other topless clubs, which have since closed,

commenced a similar action challenging the definition of "adult

eating or drinking establishment" in the 2001 Amendments. The

actions were ultimately consolidated.

Ten's Cabaret moved for summary judgment, all

plaintiffs moved for a preliminary injunction against

enforcement, and the City cross-moved for summary judgment. 

Plaintiffs argued that the City, in seeking to amend the 1995

Ordinance, had improperly relied on the 1994 DCP Study that led

to the original zoning regulations, and had failed to generate

any new empirical data regarding the purported adverse secondary

effects of 60/40 establishments, even though the entities were,

according to plaintiffs, very different from the businesses

reviewed in the DCP Study. For the People Theatres of N.Y. and

JGJ Merchandise submitted affidavits and reports of two experts,

an economist and a criminologist, who opined that 60/40

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bookstores and theaters do not negatively affect property values

or have adverse consequences in the form of increased criminal

complaints. The remaining plaintiffs produced a 2001 NYPD report

listing only one topless club in Manhattan with violations and

similar documents suggesting that nightclubs other than adult

establishments were perceived by the police as more problematic

at the time. For its part, the City contended that a new study

was not necessary because the City Council had rationally found

that the 60/40 clubs and stores retained a predominant, ongoing

focus on sexually explicit entertainment, which had already been

determined to give rise to negative secondary effects.

In 2003, Supreme Court denied the City's cross motions

for summary judgment, granted plaintiffs' motions for summary

judgment, declared the 2001 Amendments unconstitutional, and

enjoined their enforcement (see 1 Misc 3d 394, 397 [Sup Ct, NY

County 2003]; 1 Misc 3d 399, 407 [Sup Ct, NY County 2003]). 

Supreme Court held that defendants were "constitutionally

required to provide evidence showing that the 60/40s did not

remedy the secondary effects" (1 Misc 3d at 408-409).

The Appellate Division reversed Supreme Court's

judgments, denied plaintiffs' motions, granted the City's

motions, vacated the injunction, declared the 2001 Amendments

constitutional, and dismissed the complaints (see 20 AD3d 1 [1st

Dept 2005]). The Appellate Division reasoned that a new

"secondary impacts" study was not required because the sexual

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character of the businesses had not changed when they became

60/40 businesses, and plaintiffs had failed to furnish evidence

that would shift the evidentiary burden back to the City (see id.

at 21).

III.

In 2005, this Court modified the Appellate Division's

order, by denying the City's motions for summary judgment, and

remitted the matter for further proceedings (see 6 NY3d 63

[2005]). 

We applied the United States Supreme Court's

burden-shifting framework established in Los Angeles v Alameda

Books, Inc. (535 US 425 [2002]), which set out what a

municipality must prove in order to sustain a zoning ordinance

that regulates adult businesses in the face of a First Amendment

challenge.

Briefly, in Alameda Books, the Supreme Court set out a

three-part burden-shifting framework for determining the

constitutionality of zoning that regulates adult establishments.1

1 In Alameda Books, the plurality, assuming without deciding

that a Los Angeles adult use zoning ordinance was content-neutral

(see Alameda Books, 535 US at 441), set out the three-part

framework. Justice Kennedy, concurring in the judgment on the

narrowest grounds, expressed the view that zoning restrictions on

adult businesses are in reality "content based and we should call

them so" (id. at 448 [Kennedy, J., concurring]), but nevertheless

reasoned that "[a] zoning restriction that is designed to

decrease secondary effects and not speech should be subject to

intermediate rather than strict scrutiny" (id. at 448 [Kennedy,

J., concurring]), and agreed with the plurality's framework,

including what Justice Kennedy called the requirement of "very

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First, a "municipality's evidence must fairly support the

municipality's rationale for its ordinance" (id. at 438). 

Second, the municipality prevails "[i]f plaintiffs fail to cast

direct doubt on this rationale, either by demonstrating that the

municipality's evidence does not support its rationale or by

furnishing evidence that disputes the municipality's factual

findings" (id. at 438-439). Third, "[i]f plaintiffs succeed in

casting doubt on a municipality's rationale in either manner, the

burden shifts back to the municipality to supplement the record

with evidence renewing support for a theory that justifies its

ordinance" (id. at 439).

In our 2005 decision, this Court interpreted Alameda

Books to mean that, with respect to the first stage, "a

municipality's burden to prove that it has a substantial interest

in regulating a particular adult activity is not a very heavy

one" (6 NY3d at 80). We explained that 

"the reasonable discretion accorded most

local legislative actions extends to adult

use zoning. A local government implementing

zoning that affects adult businesses must

have a legislative record that establishes a

substantial governmental interest in the

subject matter of the regulation to justify

restrictions on protected speech; however,

the local government retains discretion to

make its findings from studies or other

supportive information before it, and to draw

reasonable conclusions about which regulatory

techniques will be most beneficial in

addressing the findings" (id. at 81).

little evidence" by the municipality (id. at 450-451 [Kennedy,

J., concurring]).

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We noted, however, that, under Alameda Books, if

plaintiffs demonstrate that the municipality's evidence does not

support its rationale or provide evidence disputing the

municipality's factual findings, then "the burden shifts back to

the municipality to supplement the record" (id. at 79-80, quoting

Alameda Books, 535 US at 439).

First, we held that the City had satisfied its initial

burden to justify a rationale for the 2001 Amendments. "Here,

the City cites the 1994 DCP Study, . . . and its subsequent

enforcement experiences to demonstrate that while many adult

businesses may comply with the 1995 Ordinance, at least

technically, their essential character remains unchanged. It is

this essential character -- as adult bookstores or adult video

stores or strip clubs or topless clubs -- that creates negative

secondary effects" (6 NY3d at 81). We parted from the Appellate

Division at the second stage of Alameda Books, holding 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. 

Significantly, however, we stated that the City is "not

required . . . to relitigate the secondary effects of adult uses,

or to produce empirical studies connecting 60/40 businesses to

adverse secondary effects" (id. at 83), and that the sole

remaining question of fact is "whether 60/40 businesses are so

transformed in character that they no longer resemble the kinds

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of adult uses found . . . to create negative secondary effects"

(id. at 83-84). The limited scope of the remand was explained by

our observation that "[t]he City justified the 2001 Amendments as

a measure to eradicate the potential for sham compliance with the

1995 Ordinance, and thus to reduce negative secondary effects to

the extent originally envisaged" (id. at 81).

We gave the following specific guidance to the lower

courts regarding our remand:

"we anticipate that the City will produce

evidence relating to the purportedly sham

character of self-identified 60/40 book and

video stores, theaters and eating and

drinking establishments or other commercial

establishments located in the city. This

does not mean that the City has to perform a

formal study or a statistical analysis, or to

establish that it has looked at a

representative sample of 60/40 businesses in

the city. If the trier of fact determines,

after review of this evidence, that the City

has fairly supported its position on sham

compliance -- i.e., despite formal compliance

with the 60/40 formula, these businesses

display a predominant, ongoing focus on

sexually explicit materials or activities,

and thus their essential nature has not

changed -- the City will have satisfied its

burden to justify strengthening the 1995

Ordinance by enacting the 2001 Amendments,

and will be entitled to judgment in its

favor. If not, plaintiffs will prevail on

their claim that the 2001 Amendments are

insufficiently narrow and therefore violate

their free speech rights" (id. at 84

[emphases added]).

IV.

Following discovery, the City presented evidence in two

bench trials, concerning the characteristics of some 14 adult

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bookstores and 10 adult eating and drinking establishments (as

defined by the 2001 Amendments), which identified themselves as

compliant with the 60/40 test. Managers or owners testified

about efforts to reconfigure premises in accordance with that

rule, while Office of Special Enforcement inspectors described

the adult establishments, contrasting them with two nonadult

video stores. Photographs of the adult establishments, pages

from the topless clubs' websites that included images promoting

the attributes of individual dancers, and video recordings of the

adult bookstores were entered into evidence.

The trial court upheld the amended zoning regulations

in 2010, as to both the adult bookstores and the adult eating or

drinking establishments, and entered judgments in favor of the

City (see 27 Misc 3d 1079 [Sup Ct, NY County 2010]). Supreme

Court emphasized that under the standard imposed by our 2005

decision "the City's burden was a 'light' one" and that the City

had "provided substantial evidence" as to the "dominant, ongoing

focus" of the bookstores and topless clubs on sexually explicit

materials and activities (id. at 1089).2

In 2011, the Appellate Division reversed, vacated the

findings of constitutionality, and remanded (see 84 AD3d 48 [1st

Dept 2011]). The Appellate Division ruled that the trial court

2 The trial court ruled in favor of the adult theater, For

the People's Theatres, N.Y. (see 27 Misc 3d at 1089), and the

City did not appeal this part of the judgment.

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had failed to specify "the criteria by which it 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

it based its judgment" (id. at 59). 

The Appellate Division also concluded that Ten's

Cabaret and Pussycat Lounge had brought an "inartfully pleaded"

as-applied challenge, and that the trial court had failed to set

out findings of fact pertinent to that claim (id. at 64-65). 

Notably, however, no as-applied challenge had been before this

Court in 2005 when we remanded.

The Appellate Division instructed the trial court on

remand to use various characteristics of adult establishments

identified in DCP's 1994 study to determine whether the 60/40

businesses retained a predominant focus on sexually explicit

materials or activities.

"For example, the presence of large signs

advertising adult content may indicate a

predominant focus on promoting sexually

explicit materials. The same is true of a

significant emphasis on the promotion of

materials exhibiting 'specified sexual

activities' or 'specified anatomical areas,'

as evidenced by a large quantity of peep

booths featuring adult films. Other

indicators of a predominant focus on sexually

explicit materials might be the exclusion of

minors from the premises on the basis of age

or difficulties in accessing nonadult

materials" (id. at 61-62 [footnotes

omitted]).

The Appellate Division stated that "the City's evidence

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is subject to intermediate scrutiny" (id. at 59 n 6), and

instructed that the trial court should hold the City to a more

"heightened standard" (id. at 63) than it had in 2010. At the

same time, however, the Appellate Division mentioned that "'very

little evidence is required' to uphold the constitutionality of

the 2001 Amendments" (id. at 62, quoting Alameda Books, 535 US at

451 [Kennedy, J., concurring]), and signaled that if the trial

court found that most 60/40 establishments had any one of the

characteristics of adult establishments identified in the 1994

study, then the City would have "more than enough evidence to

justify the City's 2001 ordinances" (84 AD3d at 63 n 12; see also

131 AD3d 279, 289 [1st Dept 2015]).

V.

On remand, the City relied upon the prior record. 

In 2012, the trial court struck down the 2001 zoning

regulations as to adult eating and drinking establishments and

adult bookstores as an unconstitutional violation of the First

Amendment, enjoining the City from enforcing them (see 38 Misc 3d

663 [Sup Ct, NY County 2012]).

The trial court's findings of fact regarding the adult

eating and drinking establishments were as follows.

Ten's Cabaret had divided itself into two clubs, with

separate entrances and operating hours: a gentlemen's club

featuring topless dancing and a nonadult entertainment facility

named "Room Service," consisting of private suites used for

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celebrity events. Similarly, Pussycat Lounge had a nonadult

section in the form of a concert venue named "Catbar," with its

own website, which frequently had more clientele than the topless

club did. Another adult eating and drinking establishment,

Vixen, offered both adult and nonadult entertainment, although

its website emphasized the former. VIP Club offered topless

dancing on its first floor and sushi dining on the second floor;

dancers offered individual "lap dances" to patrons in private

rooms on both floors. Lace and Lace II had topless clubs on

their first floors, and a nonadult lounge and a sports bar on

their respective second floors. Private Eyes, which advertised

itself on awnings as a "[S]ports Cabaret and Gentlemen's Club,"

comprised an adult entertainment portion featuring topless

dancers and lap dances and a nonadult bar with bikini dancing. 

The same was true of Bare Elegance, which described itself on

exterior signage as a "Gentlemen's Club and Lounge" with "Live

Beautiful Models." HQ offered topless dancing on the ground

floor and dining facilities for patrons on the second floor. At

Wiggles, topless dancing and lap dances were on offer, and the

nonadult section provided patrons with a coat check, pool table,

and seating. 

With respect to the adult bookstores, the trial court

made the following findings. 

Plaintiff JGJ Merchandise promoted both adult and

nonadult items in its exterior signage and featured a window

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display of general interest magazines. Love Shack (Queens)

promoted its nonadult products above a single reference to

viewing booths, with the same size of lettering for both and no

lighted or neon signage of the booths. Exquisite DVD had divided

its nonadult merchandise according to category, making specific

nonadult items easier to find. The nonadult material was located

in the front of the store. At Blue Door Video (Brooklyn), the

nonadult materials were in the front of the store, and customers

in the nonadult section outnumbered customers in the adult

section, but the adult section was visible from the nonadult

section. At Blue Door Video (Manhattan), there were 24 peep

booths. Both Blue Door Video stores sold condoms, sex aids,

and/or sex toys in their nonadult sections. Love Shack (Bronx)

sold adult novelties, sex aids, and condoms in the nonadult

section, in the front, which afforded customers a view of the

adult section, featuring 8 peep booths. Gotham City (8th Avenue)

kept its nonadult videos in the front of the store. Video

Xcitement sold sex toys and sex aids in its nonadult section, in

the front of the store. Show World no longer featured peep

booths with live models or nude theater performances, but rather

promoted comedy club performances and off-off-Broadway

productions, advertised in city magazines. Its marquee did not

mention adult performances. At Thunder Lingerie, a neon sign in

the front entrance advertised peep shows and customers were able

to see from the nonadult section to the adult section. The front

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of Amsterdam Video was devoted to nonadult materials and there

were no peep booths in that store.

The trial court found that the nonadult sections of the

adult bookstores were "almost always located in the front . . .

with the adult section in the back, so that a patron can visit

the front and never go to the back of the store" (38 Misc 3d at

674-675). The trial court also observed that almost none of the

adult establishments displayed "garish neon lighted signs" or

"hard-core sexual images or language," and that "the nonadult

signage is as prominent as the adult signage" (id. at 675).

Based on these findings, the trial court concluded that

plaintiffs "no longer operate in an atmosphere placing more

dominance of sexual matters over nonsexual ones. Accordingly,

there is no need for the 2001 Amendments. On their face,

therefore, they are a violation of free speech provisions of the

US and State Constitutions" (id. at 675). The trial court

accordingly enjoined the City from enforcing the 2001 Amendments.

Supreme Court noted that it was applying a different

standard in 2012 than in 2010, because the Appellate Division had 

"stated that the test was not one of rational

basis and substantial evidence, but the

higher test of intermediate scrutiny. 

Reviewing all of the Appellate Division

directions caused this court to look more

deeply into the factual findings and the

standards by which to make its judgment. The

burden on the City, then, is greater than

previously understood" (id. at 673-674).

Having ruled the 2001 Amendments facially

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unconstitutional, the trial court did not reach the topless

clubs' as-applied challenge identified by the Appellate Division

(see id. at 674).

A divided Appellate Division affirmed Supreme Court's

judgment in 2015 (see 131 AD3d 279 [1st Dept 2015]). The court

applied the criteria it had suggested in 2011 for determining

whether the 60/40 businesses retained a predominant focus on

sexually explicit materials: "(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 evidenced 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 nonadult materials" (id. at 289).

First, the Appellate Division considered the adult

bookstores. With respect to signage, the Appellate Division

affirmed the trial court's findings that the signs advertising

adult content were not large, graphic, or garish, and that the

nonadult signage was as prominent as the adult signage (see id.

at 290). As to the prohibition of minors, the Appellate Division

found that this was not a significant factor, with 6 of the 13

adult bookstores permitting minors (see id. at 291). With

respect to ease of access to nonadult materials, the Appellate

Division affirmed the trial court's finding that most of the

stores kept the nonadult materials in the front of the stores,

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making them easy to find (see id.).

However, as to emphasis on promoting sexually explicit

materials, the Appellate Division found that the adult book

stores "all place[d] a significant emphasis on the promotion of

such materials, based on promotional signage, window and interior

displays and layouts promoting sexually focused adult materials

and activities," and that the record evidence established that

all but one of the stores had peep booths, with an average of

about 17 booths per store (id.). The Appellate Division noted

that "[t]his evidence supports the City's argument that the

stores are predominantly sexually focused" (id.).

Nonetheless, the Appellate Division concluded that

because "three of the four factors tend not to support the City's

position, . . . the City has not met its burden with respect to

the adult video and book stores" (id.).

The Appellate Division then turned to the adult eating

and drinking establishments. As to signage, the Appellate

Division noted that there was no record evidence of the size or

quality of the signs advertising "gentlemen's clubs" and the like

(see id. at 293). With regard to prohibition of minors, the

Appellate Division found that this was again not a significant

factor "since minors are presumably excluded because alcohol is

served at the premises, not because of a focus on adult material"

(id. at 293 n 11). As to ease in accessing the nonadult section,

the Appellate Division found "no evidence in the record that

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these configurations make the nonadult sections difficult to

access" (id. at 293).

On the other hand, the Appellate Division found that

the evidence adduced by the City "shows that topless dancing

takes place at all times daily for approximately 16 to 18 hours a

day and that lap dances are provided in both public and private

areas of the club" (id. at 292). The Appellate Division

concluded that "the 60/40 clubs regularly feature topless dancing

and lap dancing in a substantial portion of their overall space. 

This, coupled with the evidence regarding some of the clubs'

website and newspaper advertisements,. . . indicates a

predominant sexual focus in most of the clubs" (id. at 292-293).

Again, however, the Appellate Division concluded that

because three of the four factors did not support the City's

position, the City has not carried its burden, suggesting that

"satisfaction of one of the factors is not sufficient to meet the

City's burden" (id. at 293). 

Two Justices dissented. The dissenters believed 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" (id. at 295 [Andrias, J., dissenting]).

The dissenting Justices gave the following reasoning.

"Substantial evidence demonstrates that,

notwithstanding the present availability of

additional amenities or certain nonadult uses

of their space, the adult eating and drinking

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establishments used for illustrative purposes

retained a predominant sexual focus. These

establishments typically feature 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. . . .

"The adult book stores and video stores also

retained a predominant focus on sexual

materials or activities. The evidence of

promotion, based on signage, displays in some

front windows and throughout the stores, and

layout, combined with the evidence of the

presence of large numbers of peep booths and

the evidence of the sale of adult sex toys in

the nonadult sections of the stores,

demonstrates that most of the stores . . .

emphasized the promotion of sexual materials

over nonadult materials" (id. at 300-302

[Andrias, J., dissenting] [footnote

omitted]).

The dissenters focused on the majority's use of an

improper legal standard. 

"The majority's 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, is

inadequate under the dictates of the Court of

Appeals and this Court, and elevates the

City's burden of proof. In identifying

certain factors relevant in assessing the

character of the adult establishments, 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" (id. at 302

[Andrias, J., dissenting] [emphasis added]).

The City appealed. Because the two-Justice dissent was

on a question or questions of law in appellants' favor, we have

jurisdiction over this appeal under CPLR 5601 (a).

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VI.

It is the City's burden to show that the adult

businesses retained a predominant, ongoing focus on sexually

explicit materials or activities. As described above, Alameda

Books sets out a three-part burden-shifting framework for

determining the constitutionality of adult use zoning, which we

followed in our 2005 decision. The analytical issue that remains

at this point in the litigation concerns the burden of proof that

the City must sustain in order to prevail at the third stage,

after the burden has shifted back to the City to supplement the

record. This narrow issue is distinct from, but related to, the

question of the overall level of constitutional scrutiny.

As we have noted, we apply intermediate scrutiny in the

adult use zoning context. In Stringfellow's (91 NY2d 382), in

keeping with federal precedent (see Renton, 475 US at 50), we

properly applied intermediate scrutiny to the question whether

the City's purpose justified the original zoning ordinance,

considering whether the ordinance was narrowly tailored to the

City's purpose or else broader than necessary, and whether

reasonable alternative avenues of communication were assured. We

briefly reiterated in our 2005 decision that the intermediate

scrutiny standard was applicable (see 6 NY3d at 81).

The relation between the level of scrutiny and the

burden of proof to be met by the City may be explained as

follows. Intermediate scrutiny is a level of judicial review

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that applies to the overall determination as to whether a

government's purpose justifies a law, i.e., here whether the

zoning regulation is narrowly tailored to serve a substantial

governmental interest and allows for reasonable alternative

avenues of communication (see Renton, 475 US at 47, citing Clark

v Community for Creative Non-Violence, 468 US 288, 293 [1984];

City Council of Los Angeles v Taxpayers for Vincent, 466 US 789,

807 [1984]); Heffron v International Society for Krishna

Consciousness, Inc., 452 US 640, 647-648 [1981]). A court

conducting an intermediate scrutiny test (as with any level of

scrutiny) must reach legal determinations, as to the balancing of

interests, but the court must also assess the government's

factual or predictive judgments (see e.g. District of Columbia v

Heller, 554 US 570 [2008]; Turner Broadcasting System, Inc. v

FCC, 520 US 180 [1997]). For example, we had to determine in

Stringfellow's whether the 1995 Ordinance was indeed aimed at

combating negative secondary effects. Whether adult

establishments create negative secondary effects is such a

factual matter. So is whether the adult establishments retain an

ongoing predominant focus on sexually explicit activities and

materials. The question, then, is what burden of proof the

government must bear in such matters when the overall test is

intermediate scrutiny.

The United States Supreme Court has instructed that in

First Amendment cases applying intermediate scrutiny, a court's

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task, when reviewing a legislature's factual or predictive

judgments, is "to assure that, in formulating its judgments, [the

legislature] has drawn reasonable inferences based on substantial

evidence" (Turner Broadcasting System, Inc., 520 US at 195; see

e.g. Abilene Retail No. 30, Inc. v. Bd. of Comm'rs of Dickinson

Cty., Kan., 492 F3d 1164, 1174 [10th Cir 2007], cert denied 552

US 1296 [2008]). Indeed, the Supreme Court has remarked that

"substantiality is to be measured in this context by a standard

more deferential than we accord to judgments of an administrative

agency" because a legislature is best equipped "to amass and

evaluate the vast amounts of data bearing upon legislative

questions" (Turner Broadcasting System, 520 US at 195 [internal

quotation marks omitted] [emphasis added]). Municipalities have

unique knowledge of local problems and suitable solutions. For

these reasons, we hold that the same deferential standard is

applicable under our state constitutional law to a municipality's

factual or predictive judgments in the adult use zoning context.

Our 2005 decision in this litigation applied the

appropriate standards. In discussing whether the City had met

its initial burden at the first stage of Alameda Books, this

Court noted that "a municipality's burden to prove that it has a

substantial interest in regulating a particular adult activity is

not a very heavy one" (6 NY3d at 80) and we quoted Justice

Kennedy's concurrence in Alameda Books, which stated that "very

little evidence is required" because generally "courts should not

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be in the business of second-guessing fact-bound empirical

assessments of city planners" (id., quoting Alameda Books, 535 US

at 451 [Kennedy, J., concurring]). We ruled that given this

modest evidentiary burden, the City had satisfied its initial

"burden to justify a secondary-effects rationale for the City's

2001 Amendments" (6 NY3d at 81-82).

Then, in setting out what the City would have to show

at the third Alameda Books stage, we clearly implied that the

same evidentiary burden would apply. In particular, we required

evidence that "fairly support[s]" the conclusion that there is an

ongoing focus on the sexually explicit (id. at 84). The "fairly

support" language was drawn from Alameda Books, which stated

that, at the first stage of the three-part framework, a

municipality, seeking to show a relation between speech and a

government interest, "may rely on any evidence that is reasonably

believed to be relevant" (Alameda Books, 535 US at 438 [internal

quotation marks omitted]), but cannot "get away with shoddy data

or reasoning," and must adduce evidence that "fairly support[s]

the municipality's rationale for its ordinance" (id.). We

further emphasized the modest burden placed upon the City at the

third stage by noting that the City need not "perform a formal

study or a statistical analysis, or . . . establish that it has

looked at a representative sample of 60/40 businesses in the

city" (6 NY3d at 84). 

Our intent in 2005 was that the City, in demonstrating

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an ongoing focus on the sexually explicit, must meet the same

evidentiary burden at the third Alameda Books stage that it had

to meet at the first stage. 

VII.

For these reasons, the Appellate Division, in the

decision on appeal, erred in stating that the City's modest

evidentiary burden related only to the first stage of Alameda

Books (see 131 AD3d at 289). The guidance delivered by the

Appellate Division to the trial court during this litigation

confused the ultimate standard of review or constitutional

scrutiny to be applied with the evidentiary burden borne by the

City. The Appellate Division noted in 2011 that "the City's

evidence is subject to intermediate scrutiny" (84 AD3d at 59 n

6), and instructed the trial court to "assess the City's evidence

in light of this somewhat heightened standard" (id. at 63). 

Supreme Court interpreted this to mean "that the test was not one

of rational basis and substantial evidence, but the higher test

of intermediate scrutiny" (38 Misc 3d at 673-674). 

The lower courts' discussions and applications of

intermediate scrutiny misconstrued the standard. There is no

conflict between intermediate scrutiny and application of a

modest burden of proof akin to substantial evidence. The trial

court's 2010 assessment of the City's evidentiary burden as "a

'light' one" (27 Misc 3d at 1089) was in fact correct, and it

erred in 2012 when it eschewed any standard such as substantial

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evidence and held the City to a higher burden of proof (see 38

Misc 3d at 673-674). Properly understood, 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.

The Appellate Division in the decision on appeal

exacerbated its earlier misguidance to the trial court by

applying a rigidly mechanical approach to the determination of

whether a predominant focus on sexually explicit entertainment

remained. This too was error. 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. 

Moreover, the Appellate Division counted factors that gave no

support either to the City's conclusion or to plaintiffs'

position (such as exclusion of minors by the topless clubs or

lack of a uniform practice on exclusion of minors by the adult

bookstores) as if they affirmatively counted against the City.

In addition, the Appellate Division's approach lost

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

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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.

Additionally, since the City bore only a modest burden

of proof akin to substantial evidence, it was error for the

Appellate Division to assume that "satisfaction of one of the

factors" alone could not be "sufficient to meet the City's

burden" (131 AD3d at 293). 

VIII.

Viewed in the proper light, the evidence and the

factual findings of the lower courts support only one conclusion:

that the City met its burden of showing continued focus on

sexually explicit activities and materials by the adult

bookstores and adult eating and drinking establishments.

The Appellate Division found that all but one of the

adult bookstores had peep booths for viewing adult films, with an

average of about 17 booths per store. Peep booths, by design,

obviously promote sexual activities. The Appellate Division

further found that all the bookstores used signage, displays, and

layouts to promote sexually focused adult materials and

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activities. In addition, as the trial court found, many of the

adult bookstores sold sex toys, adult novelties, and the like in

the nonadult sections of the stores. This evidence showed that

most of the adult bookstores predominantly emphasized the

promotion of sexual materials and activities. 

Contrary to the Appellate Division, this substantial

evidence is in no way negated by the fact that the signs

promoting the peep booths were "not graphic" or the fact that

"there is no evidence that any of the stores have adult signs

that are larger than those of nearby nonadult businesses, or even

that the signs advertising adult content are large" (131 AD3d at

290). The very existence of signs advertising peep booths

indicates a continued sexual focus, regardless of their size. We

cannot accept the idea that there is something uniquely sexual

about "XXX" signs, as opposed to other signs advertising "Peep

Booths." Whether signs are garish has little bearing on whether

a business retains a sexual focus.

In short, the evidence credited by the Appellate

Division supports one conclusion alone: that the adult bookstores

continue to have a predominant focus on sexually explicit

materials and activities.

As to the adult eating and drinking establishments, the

Appellate Division found that, in all the clubs, "topless dancing

takes place at all times daily for approximately 16 to 18 hours a

day" and also that lap dances, a quintessentially sexual

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activity, were offered by dancers "in both public and private

areas of the club" (id. at 292). This evidence, without more,

adequately supported the conclusion that the topless clubs

retained a predominant sexual focus. 

Ten's Cabaret and Pussycat Lounge argue that the City

has offered no evidence of the character of the topless clubs

before the 60/40 formula came into effect and has not met its

burden of showing a lack of transformation in the clubs'

character. However, this Court's 2005 decision ordered the trial

court to decide whether plaintiffs were predominantly sexual in

focus at the time of trial, and this task did not require the

City to adduce evidence as to their character in the past.

In short, once the standard is clarified, 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. It follows that the

2001 Amendments are facially constitutional.3

IX.

In the alternative, Ten's Cabaret and Pussycat Lounge

3 We have considered plaintiffs' remaining arguments, and

conclude that they lack merit. We decline to accept the

invitation of plaintiffs and amicus First Amendment Lawyers

Association to reconsider our 2005 decision in this case. We

note, however, that there is no inconsistency between that

opinion and Justice Kennedy's analysis of the relation between

speech and secondary effects in his Alameda Books concurrence

(see Alameda Books, 535 US at 449-450 [Kennedy, J., concurring];

see also Ben's Bar, Inc v Village of Somerset, 316 F3d 702,

721-722 [7th Cir 2003]).

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contend that the 2001 Amendments, as applied to them, are

unconstitutional. In essence, the two companies argue that

regardless of whether some of the other topless clubs inspected

by the City continued to focus on sexual activities, they did

not, insofar as they became hybrid entities, including

independent nonadult clubs serving different clientele adjacent

to the adult entertainment. As the City points out, however, the

as-applied challenge was not raised on the prior appeal (see 6

NY3d 63) and is not now reviewable (see New York Tel. Co. v

Supervisor of Town of Oyster Bay, 35 AD3d 417, 418 [2d Dept

2006]; Katz v City of New York, 231 AD2d 448, 448 [1st Dept

1996]; see also Martin v Cohoes, 37 NY2d 162, 165-166 [1975]).

Accordingly, the order of the Appellate Division should

be reversed, without costs, and judgment granted in favor of the

City of New York in accordance with this opinion.

* * * * * * * * * * * * * * * * *

Order reversed, without costs, and judgment granted in favor of

the City of New York in accordance with the opinion herein. 

Opinion by Judge Fahey. Judges Rivera, Stein, Garcia and Wilson

concur. Chief Judge DiFiore took no part.

Decided June 6, 2017

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