LEXINGTON – A federal lawsuit filed by a Hustler Hollywood store against Lexington likely will be dismissed so that the dispute can be heard in state courts.

Attorneys for both sides agreed Friday during a hearing in federal court that the dispute, and any constitutional issues that might arise, likely could be resolved in two pending state court cases in Fayette County.

Jimmy Flynt, the store’s operator and the brother of Hustler magazine publisher Larry Flynt, sued in federal court July 23.

The suit alleges the city violated Jimmy Flynt’s constitutional rights when it passed a zoning ordinance in April that prohibits adult bookstores, adult video stores, adult cabarets, sexual entertainment centers and adult dancing and entertainment establishments at interstate highway exchanges in Fayette County.

The Hustler Hollywood store, which opened July 16 without adult materials for sale, sits near an interchange off Interstate 75.

The store began selling sexually oriented adult material Monday, and the city filed a criminal complaint in Fayette County District Court Thursday, saying the store had violated the zoning law.

According to the city’s complaint, a building inspector on Thursday saw “approximately 500 sexually explicit DVDs” for sale, and noted the displays on the covers of the DVDs include sexually explicit material. The inspector also saw about 250 copies of sexually explicit magazines and about 1,000 sexual devices, including sex toys.

According to court documents, the property’s developer, Joseph Miller of Holyoke, Mass., initially received a permit to build a coffee shop with gift sales, but later sought a permit for the store to sell sexually oriented adult products.

The city’s board of adjustment rejected that application, and the store sued the city in Fayette County Circuit Court in January, claiming the board had overstepped its bounds and violated “the protected right to engage in free expression.”

That case is pending. No hearing date has been set.

Attorneys for the city want the federal case dismissed outright.

Hustler Hollywood attorneys want U.S. District Judge Karl Forester to allow them to refile their case in federal court if constitutional issues aren’t sufficiently addressed in state courts.

Forester gave Flynt’s attorney, H. Louis Sirkin of Cincinnati, until Tuesday to file a response to the city’s request for dismissal.

The city’s attorney, Scott Bergthold of Chattanooga, Tenn., will have until Aug. 9 to file another response.

Forester did not say Friday when he would rule on the dismissal request. “We are looking forward to the battle,” Sirkin said after the hearing.

Bergthold, who was hired by the city Tuesday, said he was confident the constitutional issues could be resolved in state courts, but added that the case mainly involved a zoning issue.

“Adult bookstores are not banned in the Urban County Government’s jurisdiction,” Bergthold said.

“They are allowed in a number of locations. They just decided to open one in a location that wasn’t permitted. They don’t have a right to blatantly violate the law.”

Sirkin argued that Hustler Hollywood, which includes a coffee shop, is not an adult bookstore.

“It’s not intended to be an adult bookstore,” Sirkin said.

“It’s a store that wants to make available, certainly, all ratings of media and material. Having an item or two doesn’t make you an adult bookstore. … They are a coffee house.”