Whether the proper definition of "stock," as used in the City's administrative guidelines interpreting zoning statutes that regulate adult establishments, includes inquiries into whether the inventory is stable and available solely for sale.

No. The proper definition of "stock" is as provided in the City's administrative guidelines, which focus solely on whether at least 40 percent of the total floor and cellar space is "accessible" and "available" for adult customer use.

Under New York City's zoning regulations, as relevant here, in order to qualify as an "adult bookstore" a business must have a "substantial portion" of its "stock-in-trade" dedicated to representations of "specified sexual activities" or "specified anatomical areas" as defined in the guidelines. Admin. Code of the City of N.Y. §§ 7-703[k], 7-714; Amended Zoning Resolution, City of New York § 12-10. In Operations Policy and Procedure Notice #6/98, the City Department of Buildings explained that the "substantial portion" requirement was met if at least 40% of the floor and cellar area accessible to customers is available for adult use.

New York City, Plaintiff, brought action against Les Hommes, Defendant, a book and video store catering to the gay male community, for violation of these zoning regulations. Plaintiff sought to enjoin Defendant from using the premises as an adult establishment. The Supreme Court originally refused to grant a preliminary injunction because the City did not meet its burden. However, at trial even though the court found that only 24% of the stock was dedicated to adult use, it granted a permanent injunction. The Court explained that several other factors were important in its consideration, such as the fact that the non -adult videos were only available for sale and could not be rented, that the stock of non-adult videos was "terribly stable," and that compliance with the guidelines was a sham. The Appellate Division affirmed, agreeing with the trial court that the business's sale of non-adult videos was a sham and that their sale did not affect the "essential nature" of Defendant as an adult establishment.

The Court of Appeals reversed the Appellate Division finding that the words of the regulation must be enforced as written. The Court stated that plain language of the guidelines must govern the determination and that such language is to be construed in favor of the property owner and against the municipality which seeks enforcement. Here, the considerations specifically mentioned in the guidelines are whether the stock is accessible or available and whether the appropriate amount of square footage is dedicated to non-adult uses. There is no distinction in the administrative guidelines between sales and rentals, and inquiries into such issues as the "essential nature" of the business are not part of the City's administrative guidelines as written. The Court held that it could not rewrite the City's guidelines to incorporate unspecified factors, and that the guidelines would be enforced as written.