For the People Theatres of N.Y., Inc. v. City of New York

131 A.D.3d 279, 14 N.Y.S.3d 338

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 21, 2015
• Docket: 121197/02 121080/02 12158
• Status: Published

Opinions

OPINION OF THE COURT

Kapnick, J.

Before this Court is the third consolidated appeal in two matters that were commenced in or about September 2002. These matters, which were previously addressed in For the People Theatres of N.Y. Inc. v City of New York (84 AD3d 48 [1st Dept 2011, Acosta, J.]) and For the People Theatres of N.Y., Inc. v City of New York (20 AD3d 1 [1st Dept 2005, Nardelli, J.], mod 6 NY3d 63 [2005]), pertain to the constitutionality of certain zoning amendments aimed at curtailing adult businesses.

Factual Background

In 1993, the New York City Department of City Planning (DCP) began a comprehensive assessment of the impact of adult establishments on the quality of urban life. DCP’s 1994 “Adult Entertainment Study” (DCP Study) concluded that adult entertainment establishments,¹ particularly when concentrated in a specific area, tend to produce negative secondary effects such as increased crime, decreased property values, reduced commercial activities, and erosion of community character.

In response to the DCP Study, the City adopted an amended zoning resolution in 1995 (1995 Resolution) that barred any “adult establishment” from all residential zones and most commercial and manufacturing districts, mandating that adult businesses, where permitted, had to be at least 500 feet from houses of worship, schools, and day care centers (Text Amendment N950384 ZRY [No. 1322]; Amended Zoning Resolution §§ 32-01 [a]; 42-01 [b]).

The 1995 Resolution defined an “adult establishment” as 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, or any combination thereof” (Amended Zoning Resolution § 12-10 [Adult establishment] [1]). An “adult book store” 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” (§ 12-10 [Adult establishment] [1] [a]), and an “adult eating or drinking establishment” was defined as an eating or drinking establishment “which regularly features” live performances or movies “characterized by an emphasis on” “specified sexual activities” or “specified anatomical areas,” or whose employees regularly expose “specified anatomical areas” to patrons as part of their employment, and which excludes minors (§ 12-10 [Adult establishment] [1] [b]).²

In response to claims from owners and operators of adult establishments that the resolution’s operative phrase, “substantial portion,” was fatally vague, the Department of Buildings and the City Planning Commission determined that the “substantial portion” provision meant that any commercial establishment with “at least 40 percent” of its accessible floor area or stock used for adult purposes qualified as an adult establishment (see City of New York v Les Hommes, 94 NY2d 267, 271 [1999]).

After this 60/40 formula became the governing standard, adult businesses sought to alter their character to ensure that they did not qualify as “adult establishments” within the meaning of the City’s zoning law by reducing their adult usage to less than 40% of their floor area or stock. Thereafter, the City brought civil proceedings to close establishments that did not comply with the 60/40 standard (see e.g. City of New York v Desire Video, 267 AD2d 164 [1st Dept 1999]).

Additionally, in 1998, the City began to bring nuisance proceedings against businesses that it believed were in technical compliance with the 60/40 formula, but were using their nonadult inventory as a “sham.” These claims for “sham compliance” were unsuccessful, the Court of Appeals finding that the guidelines must be enforced as written, and that there was nothing in the guidelines to permit considerations such as whether the nonadult stock was stable or unprofitable (Les Hommes, 94 NY2d at 273 [“Either the stock is available or accessible, or it is not; either the appropriate amount of square footage is dedicated to nonadult uses, or it is not.”]).

Following these failed efforts, the New York City Council adopted and ratified Text Amendment N010508 ZRY to the 1995 Resolution (the 2001 Amendments) to address the concern that some commercial establishments were subverting the 1995 Resolution by superficially complying with the 60/40 formula but retaining their predominant, ongoing focus on sexually explicit materials or activities.

Specifically, with respect to “adult eating or drinking establishments,” the 2001 Amendments removed “substantial portion” from the definition of “adult establishment,” providing instead that a venue that “regularly features in any portion of such establishment” live performances characterized by an emphasis on “specified anatomical areas”³ or “specified sexual activities”⁴ and excludes or restricts minors, is covered, regardless of whether it limits those performances to less than 40% of its floor area.

With respect to adult video and book stores, the 2001 Amendments modified the “substantial portion” standard to provide that nonadult material would not be considered stock-in-trade for the purpose of the “substantial portion” analysis where one or more of the following features were present:

“(aa) An interior configuration and layout which requires customers to pass through an area of the store with ‘adult printed or visual material’ in order to access an area of the store with ‘other printed or visual material’;

“(bb) One or more individual enclosures where adult movies or live performances are available for viewing by customers;

“(cc) A method of operation which requires customer transactions with respect to ‘other printed or visual material’ to be made in an area of the store which includes ‘adult printed or visual material’;

“(dd) A method of operation under which ‘other printed or visual material’ is offered for sale only and ‘adult printed or visual material’ is offered for sale or rental;

“(ee) A greater number of different titles of ‘adult printed or visual material’ than the number of different titles of ‘other printed or visual material’;

“(ff) A method of operation which excludes or restricts minors from the store as a whole or from any section of the store with ‘other printed or visual material’;

“(gg) A sign that advertises the availability of ‘adult printed or visual material’ which is disproportionate in size relative to a sign that advertises the availability of ‘other printed or visual material,’ when compared with the proportions of ‘adult’ and other ‘printed or visual materials’ offered for sale or rent in the store, or the proportions of floor area or cellar space accessible to customers containing stock of ‘adult’ and ‘other printed or visual materials’;

“(hh) A window display in which the number of products or area of display of ‘adult printed or visual material’ is disproportionate in size relative to the number of products or area of display of ‘other printed or visual material,’ when compared with the proportions of adult and ‘other printed or visual materials’ offered for sale or rent in the store, or the proportions of floor area or cellar space accessible to customers containing stock of ‘adult’ and ‘other printed or visual materials’;

“(ii) Other features relating to configuration and layout or method of operation, as set forth in rules adopted by the Commissioner of Buildings, which the Commissioner has determined render the sale or rental of ‘adult printed or visual material’ a substantial purpose of the business conducted in such store. Such rules shall provide for the scheduled implementation of the terms thereof to commercial establishments in existence as of the date of adoption, as necessary” (§ 12-10 [Adult establishment] [2] [d]).

Procedural History

In September 2002, plaintiffs For the People Theatres, a movie theater that showed adult films, and JGJ Merchandise Corp., an adult video store, brought an action against the City, seeking a judgment declaring the 2001 Amendments to be facially unconstitutional and unenforceable, as well as for injunctive relief. In October 2002, plaintiffs Ten’s Cabaret and Pussycat Lounge commenced similar actions, which were later consolidated.

On their initial motion for a preliminary injunction, plaintiffs, all of whom had reconfigured their establishments to comply with the 60/40 allocation, argued that, in seeking to amend the 1995 Resolution, the City failed to review the data, or generate any new empirical data, regarding the purported adverse secondary effects of 60/40 establishments, instead improperly relying on the 1994 DCP Study it had used in support of the original zoning restrictions, and that it modified the 60/40 rule so that compliant establishments would be found to be adult establishments for zoning purposes even though they were very different from the 100% entities reviewed in the DCP Study.

In response, the City cross-moved for summary judgment, arguing that a new study was not necessary because the City Council had rationally found that the 60/40 clubs and video/ book stores, as defined in the 2001 Amendments, retained a predominant, ongoing focus on sexually explicit entertainment, notwithstanding their 60/40 configuration, and that the DCP Study had already determined that establishments predominantly focusing on sexually explicit entertainment gave rise to negative secondary effects.

By orders entered September 9, 2003, Supreme Court denied the City’s motion for summary judgment, finding that because the 2001 Amendments regulated constitutionally protected expression, the City was required to make an evidentiary showing as to the basis for their adoption, and could not rely on the 1994 DCP report and the studies contained therein, which did not address 60/40 establishments or demonstrate that they would cause secondary effects (For the People Theatres of N.Y. v City of New York, 1 Misc. 3d 394 [Sup Ct, NY County 2003], revd 20 AD3d 1 [1st Dept 2005], mod 6 NY3d 63 [2005]; Ten’s Cabaret v City of New York, 1 Misc. 3d 399 [Sup Ct, NY County 2003], revd 20 AD3d 1 [1st Dept 2005], mod 6 NY3d 63 [2005]).

The two matters were consolidated for appeal to this Court, which reversed Supreme Court’s rulings (20 AD3d 1). This Court rejected plaintiffs’ attempt to “revisit their previous ill-fated argument that there is insufficient evidence to establish a correlation between adult business and adverse secondary effects” (id. at 16-17), and found that no new “secondary impacts” study was required absent a showing that the essential nature of the 60/40 businesses had changed (id. at 18).

The Court of Appeals, following the United States Supreme Court in Los Angeles v Alameda Books, Inc. (535 US 425 [2002]), concluded that the City “was not required ... to re-litigate the secondary effects of adult uses, or to produce empirical studies connecting 60/40 businesses to adverse secondary effects” (6 NY3d at 83), but nevertheless found that the City had presented evidence raising a triable issue of fact as to the nature of the adult businesses, and remanded to Supreme Court for further proceedings.⁵

On remittitur, the For the People and Ten’s cases were tried separately. At the trials, the City presented evidence regarding the primary adult focus of more than 20 60/40 bookstores and 10 60/40 clubs.⁶

By order entered April 8, 2010, the trial court upheld the constitutionality of the 2001 Amendments’ definitions of “adult establishment” insofar as they concerned “adult bookstores” and “eating and drinking establishments,” finding that the City had shown, by substantial evidence, that the “dominant, ongoing focus” of those businesses was on “adult matters” (27 Misc. 3d 1079, 1089 [Sup Ct, NY County 2010], revd 84 AD3d 48 [1st Dept 2011]).⁷

Plaintiffs appealed, and this Court reversed, vacating the finding of constitutionality and remanding the matter for further proceedings (84 AD3d at 48). With respect to the Ten’s plaintiffs’ as-applied challenge to the 2001 Amendments, this Court found 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 abridgment of First Amendment protections,” and directed the trial court to set forth its findings of fact as to such a challenge (84 AD3d at 65).

Following the remand, the parties submitted proposed findings of fact, as well as legal memoranda. Rather than submit additional evidence, the City argued that the evidence already in the record showed that all 60/40 establishments continued to have a predominant sexual focus.

By order entered August 30, 2012, Supreme Court held that the 2001 Amendments were facially unconstitutional, and permanently enjoined the City from enforcing them (38 Misc. 3d 663 [2012]). As such, the trial court never reached the as-applied challenge. The City now appeals.

Discussion

“A regulation that infringes upon constitutionally protected speech or conduct. . . must be justified by unrelated concerns, and no broader than necessary to achieve its purpose” (6 NY3d at 85 [Kaye, Ch. J., dissenting], citing Matter of Town of Islip v Caviglia, 73 NY2d 544, 557-560 [1989]). This standard, otherwise known as “intermediate scrutiny,” was applied by the Court of Appeals in resolving the constitutional challenge to the 1995 Resolution in String fellow’s (91 NY2d 382). However, in the challenge to the 2001 Amendments, the Court of Appeals held that the City did not need to meet intermediate scrutiny, because the 2001 Amendments were merely a clarification or extension of the 1995 Resolution. Therefore, the Court held that the City met its initial burden of showing that the 2001 Amendments were justified “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” (6 NY3d at 83). In so holding, the Court accepted the City’s argument that the 2001 Amendments were intended to combat the same negative secondary impacts that the 1995 Resolution was meant, but failed, to combat. The Court also found that because the plaintiffs met their burden to “ ‘furnish[ ] evidence that disputed] the [City’s] factual findings,’ the burden shifted back to the City ‘to supplement the record with evidence renewing support for a theory that justified] [the 2001 Amendments]’ ” (6 NY3d at 83, quoting Alameda, 535 US at 439).

It is clear that this final burden was meant to require the City to present evidence that supported its theory that because the 60/40 entities’ nonadult uses were a sham, the businesses continued to be predominantly sexually focused, and, therefore, a new study showing negative secondary effects of the 60/40 entities was not legally required. To this end, the Court of Appeals held that

“a triable question of fact has been presented as to 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 formula is merely a sham — as the City contends.

“In addressing this factual dispute, 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. In that event, plaintiffs will be entitled to judgment and a declaration that the 2001 Amendments are unconstitutional” (6 NY3d at 83-84 [emphasis added]).

This Court’s order remanding the cases again after the trials were held on remittitur from the Court of Appeals further clarified the issue (84 AD3d 48). We noted that the City had to “establish that the essential characteristics or features of the 60/40 uses are very similar to those adult uses that were previously found to cause secondary effects” (84 AD3d at 59), and that the trial court had to “compare ‘self-identified’ 60/40 businesses with the adult businesses discussed in the DCP study, other studies and case law so as to determine whether the 60/40 businesses retained a predominant focus on sexually explicit materials” (84 AD3d at 60-61) or were “ ‘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’ ” (id. at 55, quoting 6 NY3d at 84).

While acknowledging that the DCP Study primarily addressed “the consequences of significant concentrations of adult businesses emphasizing sexually explicit materials and not the particular attributes that caused secondary effects” (84 AD3d at 61 [emphasis added]), this Court drew upon some of the attributes highlighted by the DCP Study to develop criteria for the trial court to rely upon in its analysis. These criteria are: (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” (84 AD3d at 61-62). 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 (id. at 62 n 12).

While the City’s evidentiary burden was light (see 6 NY3d at 80), contrary to the position taken by the dissent, this standard relates specifically to proving, at the outset of the process, the existence of a correlation between the adult establishments and negative secondary effects; as previously discussed, that issue has already been resolved by the Court of Appeals, and thus is not before us. The “very little evidence” standard (6 NY3d at 80 [internal quotation marks and emphasis omitted]) is not the standard applicable to the City at the trial level, which is what we are reviewing here (see Alameda, 535 US at 451 [Kennedy J., concurring]).

Adult Bookstores and Video Stores

The City argues that the trial court erred in striking down the 2001 Amendments with respect to the definition of adult video and book stores. It further argues that despite any changes allowing for formal compliance with the 60/40 rule, the identified establishments clearly retain a predominant, ongoing sexual focus. The City relies on evidence showing the exclusion of minors, the promotion and presence of peep booths featuring on-premises viewing of adult material, and the sexually explicit merchandise displayed in the stores. Based on these characteristics, the City contends that these stores resemble the earlier 100% establishments found to cause negative secondary effects and that the court’s conclusion otherwise is not supported by a fair interpretation of the record.

Plaintiffs argue that the trial court correctly found in their favor, because the 60/40 businesses no longer resemble their exclusively adult predecessors and do not have a predominant, ongoing focus on adult materials. Plaintiffs urge that nonadult material is readily accessible, signage has been modified to be less graphic, and the presence of peep booths, which are often in the back of the stores, does not create a predominant sexual focus.

First, with respect to the presence of large signs advertising adult content, upon which the DCP study placed special emphasis (see 84 AD3d at 61), the evidence shows that eight of the stores have signs visible from the outside announcing the presence of peep booths or adult materials and that all 12 stores that have peep booths promote them through exterior and/or interior signage. The evidence, however, also shows that most of the signage is not graphic (i.e., none of the stores have “XXX” on the outside of the premises), and 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. Further, the evidence shows that the signs, at least at Show World, Exquisite DVD, Blue Door Brooklyn, Video Excitement, Thunder Lingerie, and Amsterdam Video, have been significantly modified, and signs advertising nonadult stock have been added so as to limit, if not eliminate, any emphasis on adult material. As the trial court, which had the opportunity to visit at least some of the establishments at issue here, observed, “There are almost no garish neon lighted signs, no hard-core sexual images or language on them and the nonadult signage is as prominent as the adult signage, certainly a significant change from the 1994 situation” (38 Misc. 3d at 675). Given the foregoing, this Court finds that the signage evidence is not indicative of a predominant sexual focus in most of the stores.

Next, we look at whether there is a significant emphasis on the promotion of materials that exhibit “specified sexual activities” or “specified anatomical areas.” It is undisputed that all 13 stores sell such materials, which indicates that the stores are of an “adult nature.” It is also clear that although these stores may have reduced their stock of such materials to below the 40% threshold, the materials remain a significant part of the business, and the stores all place 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. With respect to peep booths, the record evidence establishes that 12 of the 13 stores have peep booths for viewing adult films, with seven of the stores having “buddy-booths.” In terms of quantity, the evidence shows that the 12 stores have anywhere from 7 to 60 booths on premises, with an average of about 17 booths. This evidence supports the City’s argument that the stores are predominantly sexually focused; however, promotion of sexually explicit materials is only one of the four relevant factors.

With respect to the exclusion of minors, the evidence shows that only six of the 13 stores exclude minors entirely, and at least one other store restricts minors from entering its adult area. There is limited evidence as to the reasoning behind these exclusions; however, at least one of plaintiffs’ witnesses testified 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, since nearly half of the stores do not restrict the admittance of minors at all.

Finally, as to whether the layout of the store makes it difficult to access nonadult materials, there is nothing in the record to suggest that such a difficulty exists at any of the stores. In fact, there is ample evidence that most of the stores keep the nonadult materials in the front of the stores, making them easy to access (38 Misc. 3d at 670-672).⁸

According due deference to the factual findings of the trial court, this Court finds that three of the four factors tend not to support the City’s position, and therefore that the City has not met its burden with respect to the adult video and book stores.

Adult Eating and Drinking Establishments

The City argues that it met its burden of showing that, despite the changes that the identified 60/40 establishments made to conform to the 60/40 rule, the establishments retain a predominant, ongoing focus on sexually explicit activities.

The City further argues that the essential nature of the 60/40 clubs has not changed, because they display a predominant, ongoing focus on sexually explicit activities and specified anatomical areas by virtue of the fact that all of the clubs “regularly feature! ]” topless dancing. The evidence 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. The City contends that this focus on sexually explicit activities and specified anatomical areas is not mitigated by the clubs’ nonadult sections where the nonadult use is a restaurant or bar that serves adult-section customers or even where it is independent of the adult business but takes place in a separate part of the premises. Accordingly, the City contends that only three of the clubs offer any independent nonadult use that reduces the predominant, ongoing focus on sexually explicit activities and specified anatomical areas.

Plaintiffs respond that the City cannot prevail merely by showing that the clubs feature topless entertainment on a regular basis. They argue that the changes made to the clubs by reducing the floor space devoted to such entertainment removed the predominant sexual focus linked to the adverse secondary effects found to be caused by the 100% entities. Plaintiffs point out that the nonadult sections either are used to add amenities to the establishment, such as restaurants, pool tables or sports lounges, or operate as live entertainment venues where bands perform.

The evidence adduced by the City makes it clear 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, certainly goes to the second factor, promotion of sexually explicit materials, and demonstrates an emphasis on the promotion of materials that exhibit “specified sexual activities” or “specified anatomical areas,” which indicates a predominant sexual focus in most of the clubs.⁹ However, there was little to no evidence presented as to the other factors,¹⁰ such as the nature of the outward signage (first factor) and the difficulty in accessing the nonadult material, or, in this case, the nonadult section of the club (fourth factor). There was also no evidence presented as to the nature of the pre-1994 or 100% clubs.* ¹¹

The little evidence we do have as to the clubs’ signage shows that some clubs refer to themselves as “gentlemen’s clubs” or advertise “adult entertainment,” “live beautiful models” or “sports cabaret” on their outside awnings. There is no evidence as to the size of these signs or how they compare to signs advertising nonadult activity or those of surrounding nonadult businesses. This is not enough to show that the signage indicates a predominant sexual focus in most of the clubs.

With regard to layout or difficulty in accessing the nonadult section, the City concedes that some of the clubs have layouts different from those in the 100% clubs, although there is also evidence that some of the clubs have the adult sections on the ground floor and the nonadult sections on the second floor, while other clubs have the nonadult sections operating next door to the adult sections. There is, however, no evidence in the record that these configurations make the nonadult sections difficult to access.

As with the book stores and video stores, satisfaction of one of the factors is not sufficient to meet the City’s burden. The City assumes that because the 60/40 clubs regularly feature topless dancing, this automatically means that they retain a predominant sexual focus. However, there is nothing in the prior related decisions that mandates that conclusion. Thus, this Court finds that the City has not met its burden with respect to the adult eating and drinking establishments.

Accordingly, the judgment of the Supreme Court, New York County (Louis B. York, J.), entered October 10, 2012, declaring the 2001 Amendments to New York City’s adult use zoning regulation as to adult eating and drinking establishments and adult video and book stores an unconstitutional violation of the First Amendment and permanently enjoining the City from enforcing the amendments, should be affirmed, without costs.

1 . The DCP set parameters on what qualified as an “adult entertainment establishment” for purposes of the DCP Study. It stated that

“an adult entertainment establishment is a commercial use that defines itself as such through exterior signs or other advertisements. Thus, a ‘triple-X or XXX’ video store is an adult entertainment establishment, but a neighborhood video store that devotes a small area to triple-X videos is not. This self-defining characteristic allowed the survey to focus on those establishments for which there is some consensus that the use is adult .... The survey was further restricted to three types of such uses: adult video and bookstores, adult live or movie theaters, and topless or nude bars” (DCP Study at 1-2).

2 . In an action filed by a group of adult establishments, including String-fellow’s, the predecessor in interest of plaintiff Ten’s Cabaret, this Court affirmed the motion court’s rejection of the plaintiffs’ constitutional challenge to the 1995 Resolution (Stringfellow’s of N.Y. v City of New York, 241 AD2d 360 [1st Dept 1997], affd 91 NY2d 382 [1998]). In affirming our order, the Court of Appeals held that the 1995 Resolution was not “purposefully directed at controlling the content of the message conveyed through adult businesses” (91 NY2d at 397) and was “not constitutionally objectionable under any of the standards set forth by the United States Supreme Court in Renton v Playtime Theaters . . . or by this Court in Matter of Town oflslip v Caviglia” (id. at 406). The Court noted that the federal courts had “upheld similar zoning provisions that regulate commercial facilities devoting a ‘substantial portion’ of their businesses to adult entertainment” (id. at 405).

3 . “[S]pecified anatomical areas” are defined as “(i) less than completely and opaquely concealed: (aa) human genitals, pubic region, (bb) human buttock, anus, or (cc) female breast below a point immediately above the top of the areola; or (ii) human male genitals in a discernibly turgid state, even if completely and opaquely concealed” (§ 12-10 [Adult establishment] [2] [c]).

4 . “[S]pecified sexual activities” are defined as “(i) human genitals in a state of sexual stimulation or arousal; (ii) actual or simulated acts of human masturbation, sexual intercourse or sodomy; or (iii) fondling or other erotic touching of human genitals, pubic region, buttock, anus or female breast” (§ 12-10 [Adult establishment] [2] [b]).

5 . In a dissent joined by two other colleagues, then Chief Judge Judith S. Kaye argued that the 2001 Amendments constituted a “new law” and that plaintiffs had produced substantial evidence as to the lack of any correlation between the 60/40 operations and negative secondary effects (6 NY3d at 85-87).

6 . The 10 60/40 clubs are Bare Elegance, Lace, Private Eyes, Lace II, VIP Club, Pussycat Lounge, Ten’s Cabaret, HQ, Vixen, and Wiggles.

7 . With respect to adult movie theaters, the court held that the City failed to establish that theaters, which limit regularly featured adult entertainment to less than 40% of their customer accessible floor area, have a predominant ongoing focus on adult entertainment. The City did not appeal the rulings concerning movie theaters, and it is not at issue here.

8 . While the dissent takes issue with our “mechanical and mathematical approach” to weighing the enumerated factors, in fact, what we have attempted to do is separately and fully analyze each of the characteristics that this Court suggested should be considered in making this determination (84 AD3d at 61-62).

9 . Essentially, the regularity of sexually explicit dancing and the promotion thereof is the equivalent of a large quantity of peep booths in the video/ book store setting.

10 . While the City suggests that this Court’s factors only apply to adult book and video stores, there is no such express limitation in our decision and no reason why the factors cannot be applied to both types of establishments. Moreover, the City had an opportunity to submit more evidence to the trial court after this Court’s decision was issued announcing the factors, and it chose not to.

11 . The third factor, which asks whether minors are excluded by age, is moot here, since minors are presumably excluded because alcohol is served at the premises, not because of a focus on adult material.