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Top court upholds NYC zoning law on sex-related businesses

ALBANY — The state’s top court upheld New York City’s zoning restrictions on “adult establishments” Tuesday, ruling that the restraints didn’t violate free speech rights.

In a 5-0 decision, the Court of Appeals ruled that zoning amendments adopted by the city government in 2001 were constitutional. The amendments sought to toughen zoning regulations for topless clubs and sex-oriented theaters, video stores and bookstores.

The court also dismissed a contention by the cabarets that the bulk of their business wasn’t explicitly sexual. The businesses had sought to invoke the so-called “60-40” rule, contending that the majority of their activities was focused on food, drinks, books and magazines, and other nonsexual materials and, therefore, they shouldn’t be subject to zoning governing adult establishments.

The court didn’t buy it.

“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,” Judge Eugene Fahey wrote for the court.

The decision overturned a lower-court ruling.

Edward Rudofsky, attorney for the Pussycat Lounge and the Ten’s Cabaret, two of the clubs that had fought the zoning restrictions, said his clients were disappointed — given that they had won at the midlevel court.

“We had been optimistic that there would be an affirmance” of that previous ruling, Rudofsky said. He said the clubs were considering their options, including pursuing new legislation or appealing to the U.S. Supreme Court.

City officials didn’t immediately comment.

The fight goes back to a 1995 regulation the city implemented to scatter strip clubs and X-rated businesses that had clustered in Times Square.

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