Ten's Cabaret, Inc., fka Stringfellow's of New York, Inc., et al. v. City of New York, New York, et al.

Does the First Amendment allow the facial constitutionality of a 16 year old amendment to an adult zoning law to be determined, either at all or exclusively, by whether, more than a decade after the amendment’s adoption, an undetermined and random number of then-operating businesses (operating under injunctions allowing them to present adult entertainment in up to 40% of their square footage, most of which businesses were not parties hereto), are deemed to be engaged in only “sham compliance” with the pre-amendment law which did not restrict such businesses?

If so, is there a constitutionally requisite minimum percentage of examined businesses which must be operating as “shams” in order to conclude that such an amendment was constitutional at the time of enactment?

In any event, was the ad hoc “sham” test utilized by the Court of Appeals impermissibly random or vague by failing both to 1) articulate what minimum percentage of businesses must be found to be shams and 2) define objective criteria to be used in determining whether a business should be deemed a “sham”?