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, 954 N.Y.S.2d 801 [Sup.Ct., N.Y.County 2012] ). The trial court's findings of fact regarding the adult eating and drinking establishments were as follows.
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, 954 N.Y.S.2d 801 [Sup.Ct., N.Y.County 2012] ). The trial court's findings of fact regarding the adult eating and drinking establishments were as follows.
Following a second remand, the trial court struck down the 2001 Amendments as facially unconstitutional under the federal and state constitutions.For the People Theatres of N.Y., Inc. v. City of New York, 38 Misc.3d 663, 954 N.Y.S.2d 801, 809 (N.Y. Sup. Ct. 2012). The court found "significant and distinct differences between the 1994 adult entities and 60-40 entities," such that "the current establishments no longer resemble their 1994 predecessors."
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 at 663, 954 N.Y.S.2d 801). As such, the trial court never reached the as-applied challenge.
On second remand, the trial court struck down the 2001 Amendments as facially unconstitutional under both the federal Constitution and its state analogue. For the People Theatres of N.Y., Inc. v. City of New York, 38 Misc.3d 663, 954 N.Y.S.2d 801, 809 (N.Y. Sup. Ct. 2012). The court found "significant and distinct differences between the 1994 adult entities and the 60[/]40 entities," such that "the current establishments no longer resemble their 1994 predecessors."