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Supreme Court, Appellate Division, First Department, New York.

DJL RESTAURANT CORP., etc., et al., Plaintiff-Appellants, v. The CITY OF NEW YORK, et al., Defendants-Respondents.

Decided: April 13, 2000

SULLIVAN, P.J., NARDELLI, MAZZARELLI and SAXE, JJ. Edward S. Rudofsky, for Plaintiff-Appellants. Julian L. Kalkstein, for Defendants-Respondents.

Order and judgment (one paper), Supreme Court, New York County (Steven Crane, J.), entered on or about February 10, 1999, which granted defendants' motion for summary judgment, declaring that the Adult Use Amendments of the New York City Zoning Resolution as applied to plaintiffs are not preempted by the New York State Alcohol and Beverage Control Law, unanimously affirmed, without costs.

 Although the State Alcohol and Beverage Control Law is “surely pre-emptive” (People v. De Jesus, 54 N.Y.2d 465, 469, 446 N.Y.S.2d 207, 430 N.E.2d 1260), establishments selling alcoholic beverages are not, as a consequence, necessarily exempt from local laws of general application (see, id. at 471-472, 446 N.Y.S.2d 207, 430 N.E.2d 1260).   The Adult Use Amendments to the Zoning Resolution of the City of New York are local laws of general application with a legitimate governmental purpose.   Any impact of those laws on establishments holding liquor licenses is incidental, and not a result of an attempt by the City to regulate the sale, distribution or consumption of alcohol.   Moreover, there is nothing mutually exclusive about these two separately focused regulatory provisions (see, Inc. Vil. of Nyack v. Daytop Vil., Inc., 78 N.Y.2d 500, 507, 577 N.Y.S.2d 215, 583 N.E.2d 928).

As to plaintiffs' contention that topless dancing is a protected form of entertainment, the constitutionality and propriety of the Amended Zoning Resolution as it relates to freedom of expression has been upheld by the Court of Appeals in Stringfellows of New York, Ltd. v. City of New York, 91 N.Y.2d 382, 671 N.Y.S.2d 406, 694 N.E.2d 407.


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