I agree with the majority that sexually explicit but nonobscene material, including movies and other forms of entertainment, is a protected form of expression under the Federal and the State Constitutions. I further agree that our State furnishes broader guarantees of expression than the minimum protections afforded by the Federal Constitution (see, Matter of Town of Islip v Caviglia, 73 NY2d 544, 556). Because, in my view, the ordinance under attack neither offends nor involves those guarantees, except incidentally, and because the ordinance is no broader than needed to accomplish its purpose, I respectfully dissent.
Initially, I do not agree that plaintiffs have successfully raised substantial principles of constitutional law and that their challenge involves novel issues of first impression mandating the granting of a preliminary injunction. Plaintiffs have failed to produce a single case anywhere in the country, Federal or State, that supports their position. To the contrary, every case that has been called to our attention, and the majority has fully noted them, has upheld the validity of similar legislation as serving the government’s substantial interest in the health, safety and welfare of the people. The unanimity of those decisions not only operates as a persuasive guide but, as the City’s Corporation Counsel informs us in her affidavit, the relevant legal decisions throughout the country were provided to the City Council prior to the enactment of the ordinance. Such information was appropriate for consideration by the Council, as a municipality may rely upon court decisions of other jurisdictions and the findings summarized in those decisions for preenactment support of the legislation (see, Renton v Playtime Theatres, 475 US 41, 50-52, reh denied 475 US 1132).
The test formulated by the Supreme Court in Renton v Playtime Theatres (supra, at 46-48) is that where a law regulating adult entertainment is content neutral it does not affect freedom of expression, except incidentally, since it aims not at the content of the adult entertainment but at the secondary ef*280fects associated with it. "[C]ontent-neutral restrictions, those justified without reference to the content of the regulated speech and relating only to the time, place, and manner of expression, are valid if the governmental interest to be achieved outweighs the resulting interference with free expression” (Matter of Town of Islip v Caviglia, supra, at 556-557; see, Ward v Rock Against Racism, 491 US 781, 791, reh denied 492 US 937). Applying that standard, the restrictions imposed by the ordinance are clearly content neutral. They in no way attempt to hinder or restrict the content of the speech that plaintiffs seek to express.
The rule laid down by Renton permits municipalities to regulate "adult uses” that are not content based if (1) the " 'predominant purpose’ ” of the ordinance is not to control the content of the material but to control the "secondary effects” of such uses, (2) the ordinance as designed serves a substantial governmental interest, (3) the ordinance is narrowly tailored to affect only the substantive problem, and (4) the ordinance leaves open reasonable alternative avenues of expression (Matter of Town of Islip v Caviglia, supra, at 552).
The "predominant purpose” test is met by the ordinance. It was adopted because of the City Council’s awareness that "the City and its surrounding area have a large incidence of sexually transmitted diseases, including AIDS. The Council wishes to assure that entertainment centers are not used in a manner that can facilitate the transmission of such diseases through high-risk sexual contact with multiple partners * * *
"[because] closed booths have been used [in adult entertainment establishments] by patrons for the purpose of engaging in sexual acts and certain booths in the City have been constructed so as to facilitate sexual activity; and * * *
"[d]oors, curtains, partitions, drapes or other obstructions in the entrances to such booths encourage patrons using such booths to engage in sexual acts therein, thereby promoting and encouraging prostitution and the commission of sexual acts which may lead to the transmission of disease between such persons or the deposit of bodily fluids on the floors and walls of such booths. Such activities could also prove detrimental to the health and safety of other persons who may come into contact with such fluids” (Municipal Code of City of Rochester § 29-15 [I] [1] [b], [c]).
In reinforcing the preenactment basis for the ordinance, the City submitted an affidavit from a Zoning Enforcement Officer, who related that she had conducted daytime inspections of *281those businesses having coin- or token-operated adult entertainment, including the businesses operated by plaintiffs. She observed in a number of video booths in five of plaintiffs’ bookstores "used condoms and open condom packages on the floors, in ashtrays, garbage cans and in the creases of benches in the booths. I observed a total of approximately 20 used condoms in the video booths.” At most of plaintiffs’ establishments she observed single-use packets of lubricant sold at or near where the video booth tokens were sold and saw approximately 40 used packets in the booths. In one location she observed four "dial-a-doll” booths. "The management described the operation of these booths for me. Prior to entering the booth, a patron would select a scantily-dressed female entertainer. The patron and the entertainer would go to a separate area of the book store where there were booths which were separated on the inside by a plexiglás partition covered by a curtain. The patron would then insert a prepurchased token and a curtain would rise. The patron could then observe the female performing on the other side of the partition. I observed a bottle of Windex and a roll of paper towels in the patron’s side of the booth. The manager explained to me that the reason for the Windex and paper toweling is that patrons are responsible for cleaning up after themselves.”
In addition, the Council "reviewed information justifying the enactment of ordinances in other municipalities establishing open booth requirements” (Municipal Code of City of Rochester § 29-15 [I] [1]) and, as noted, it also had the benefit of other court decisions dealing with open booth legislation.
Plaintiffs have not shown that factual support for the legislation was insufficient. Further, "[t]he First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses” (Renton v Playtime Theatres, supra, at 51-52; see, Barnes v Glen Theatre, 501 US 560, 584-585 [Souter, J., concurring: "In light of Renton’s recognition that legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects * * * I do not believe that a State is required affirmatively to undertake to litigate this issue repeatedly in every case”]; see also, Postscript Enters. v City of Bridgeton, 905 F2d 223, 226-227 [8th Cir]; Wall Distribs. v City of Newport News, 782 F2d 1165, 1169, n 7 [4th Cir] [adopting "legislative notice” theory]).
*282Significantly, plaintiffs do not challenge the provision of the Municipal Code that prohibits booths from being occupied by more than one person at a time. They also consent to the requirement of a solid wall between the booths. That concession goes further than the ordinance, which permits windows in the walls for viewing live entertainment provided the windows are solid and cannot be opened.
The "predominant purpose” of the ordinance is to promote the public welfare by maintaining sanitary conditions in areas that are frequented by members of the public, not to regulate or restrict what is viewed in those areas. For the same reason, the ordinance is designed to serve a substantial governmental interest and, therefore, meets the second test as well. That interest arises from the unsanitary conditions in the booths and the possible spread of disease by semen on the walls or floors of booths (see, Wall Distribs. v City of Newport News, supra, at 1169; Movie & Video World v Board of County Commrs., 723 F Supp 695, 698-699; Suburban Video v City of Delafield, 694 F Supp 585, 590).
The ordinance is also narrowly tailored to serve the governmental objective and to affect only the uses that produce the secondary effects (see, United States v O’Brien, 391 US 367, 377, reh denied 393 US 900). It responds precisely to the substantive problem and to the legitimate concern of discouraging sexual activity of any kind that may take place inside the booths. "The ordinance does not ban the viewing of films or other entertainment, but merely regulates the environment in which the viewing occurs” (Berg v Health & Hosp. Corp., 667 F Supp 639, 642, affd 865 F2d 797 [7th Cir]). The ordinance regulates only the "non-communicative aspects”, i.e., the enclosure in which the material is viewed (Doe v City of Minneapolis, 693 F Supp 774, 780, affd 898 F2d 612 [8th Cir]).
Plaintiffs’ argument that there are less restrictive means of deterring sexual activity in the booths that would not inhibit the viewers of the material is without substance. The choice of one among several legislative ways of obtaining a legitimate end is for the Legislature, not the Judiciary. Further, "it does not appear that use of * * * booths with the bottom two feet of the door removed”, which plaintiffs suggest as an alternative, "would adequately accomplish the legislative goal of deterring promiscuous sexual contacts that can spread deadly disease. Doors of this kind would not inhibit sexual activity between two individuals in adjacent booths through the use of holes in the common dividing partitions, or inhibit masturbation within *283the partially enclosed booths” (Mitchell v Commission on Adult Entertainment Establishments, 10 F3d 123, 143 [3d Cir]). As the Court of Appeals has pointed out, "[a]rguments can be advanced that different techniques should be used to address the problem * * * but that is not to say that they are constitutionally required -* * * To suggest alternative provisions amounts to nothing more than a disagreement with the [City] over how much corrective action is wise and how best it may be achieved” (Matter of Town of Islip v Caviglia, 73 NY2d 544, 560, supra).
Additionally, the ordinance is "no broader than needed” for the intended purpose (People ex rel. Arcara v Cloud Books, 68 NY2d 553, 558). The regulation need not be the " 'least restrictive means’ ” of addressing the problem as that standard is used in First Amendment analysis (Matter of Town of Islip v Caviglia, supra, at 559). The "least restrictive means” analysis does not apply when content-neutral time, place and manner restrictions are at issue (see, Ward v Rock Against Racism, 491 US 781, 796-800, supra). Even where a least restrictive means analysis was used, it was there held that such analysis was easily met by an open booth ordinance (Berg v Health & Hosp. Corp., 865 F2d 797, 803-804, supra).
Patrons may still view what they desire to view in the booths, or in their homes, or in movie theaters where there is apparently no shyness on the part of patrons there to watch movies in the open view of other patrons. Nor are plaintiffs in any way restrained in their ability to sell books, movies or other forms of entertainment, so long as they comply with the ordinance. The viewing public is in no way "denied access to the market or * * * unable to satisfy its appetite for sexually explicit fare” (Young v American Mini Theatres, 427 US 50, 62, reh denied 429 US 873).
Lastly, the ordinance leaves ample alternative avenues of expression. It does not limit the number of viewing booths or the type of material that may be shown in them, and the availability of films, books or other entertainment is not impaired. The ordinance’s effect on plaintiffs’ revenues, if any, is not material to a First Amendment analysis (see, Young v American Mini Theatres, supra, at 78 [Powell, J., concurring]).
The broader degree of protection afforded to free expression by our State Constitution in no way affects the foregoing analysis. When legislation designed to carry out a legitimate governmental objective incidentally burdens free expression, the government’s action may be sustained when it is shown *284that it is "no broader than needed” to achieve its purpose (People ex rel. Arcara v Cloud Books, supra, at 558). "The crucial factor in determining whether State action affects freedom of expression is the impact of the action on the protected activity and not the nature of the activity which prompted the government to act. The test, in traditional terms, is not who it is aimed at but who is hit” (People ex rel. Arcara v Cloud Books, supra, at 558).
The fact that plaintiffs have shown that in one location over a two-week period there was a reduced number of viewers in open booths does not presumptively establish, at least to the extent necessary for the granting of a preliminary injunction, that the ordinance hinders patrons from viewing the entertainment provided by plaintiffs. It may equally indicate that those patrons seeking to engage in unobserved sexual activity prefer closed booths. In any case, a patron walking into one of plaintiffs’ establishments, which openly offer for sale sexually explicit books, magazines and video tapes, will be observable by members of the public, who will naturally presume " 'he saith not a pater noster’ there (Burton’s Anat. of Mel. vol. 2 [1st Am. ed.], p. 446, part 3, sec. 3, mem. 1, sub. 2)” (Kerr v Kerr, 134 App Div 141, 142).
Because plaintiffs have not met their burden of demonstrating a likelihood of ultimate success and because the balancing of the equities does not weigh in their favor, I would affirm the order of Supreme Court denying plaintiffs’ motion for a preliminary injunction.
Fallon and Doerr, JJ., concur with Green, J. P.; Boehm, J., dissents and votes to affirm in a separate opinion in which Lawton, J., concurs.
Order reversed, on the law, with costs, and motion granted.