City of New York v. Les Hommes

In City of New York v. Les Hommes (94 N.Y.2d 267, 724 N.E.2d 368, 702 N.Y.S.2d 576 (1999)), the City sought to shut down a store where only 24% of the stock consisted of adult videos, but the nonadult videos were offered only for sale, not for rent, did not turn over, had been supplemented very modestly and were located in a back room. The lower courts agreed with the City that the store's compliance with the 1995 Ordinance was a sham; that is, despite its technical compliance with the 60/40 formula, the store's business still centered on purveying sexually explicit materials. Based on the 1995 Ordinance's "plain language" and the "precise guidelines" that the City had developed to enforce it, however, we reversed (id. at 273). In so doing, the Court observed that "in the end, we must enforce the City's administrative guidelines as written. Either the stock is accessible or available, or it is not; either the appropriate amount of square footage is dedicated to nonadult uses, or it is not. Questions about whether the owner of the store had a good-faith desire to sell nonadult products, whether the 'essential nature' of the store is adult or nonadult, or whether the volume of nonadult stock is stable or profitable are not part of the inquiry here, where we are only called upon to determine whether items are accessible or available as stock. We cannot rewrite the City's guidelines to include these additional considerations" (id.; see also City of New York v. Dezer Props., 95 N.Y.2d 771, 732 N.E.2d 943, 710 N.Y.S.2d 836 2000 an eating or drinking club that regularly features adult activities in less than 40% of its floor area is not an "adult establishment" within meaning of 1995 Ordinance).