Lexington, Kentucky- A judge refused to dismiss Lexington’s case against a Hustler Hollywood store cited with violating a local zoning ordinance that prohibits selling adult material.

During yesterday’s pre-trial hearing, Fayette District Judge Megan Lake Thornton overruled the motion filed by attorneys representing the store owned by Jimmy Flynt, the brother of Hustler magazine publisher Larry Flynt. Thornton set a trial date for May 13.

After that decision, H. Louis Sirkin, one of three attorneys representing Flynt, said “the people will vindicate us.”

“We think we’re right in the position that we’ve taken,” he said. Sirkin added that he thinks the case could be tied up in appeals down the road and that a trial now would be a waste of time if the Supreme Court rules later on the constitutional matter of free speech.

Flynt’s store was cited in July with violating a local zoning ordinance that prohibits adult-oriented businesses near interstate highway interchanges. The city cited the store at 2240 Elkhorn Drive, near Interstate 75, on July 29, three days after it began selling sexually oriented materials.

Flynt had initially pledged not to sell sexually explicit products but changed the merchandise when the store opened. The local ordinance defines an adult bookstore as “those having a substantial or significant portion of their business in sexually explicit materials.”

Flynt’s attorneys had argued in their motion to dismiss the case filed last fall that the city’s zoning ordinance was “substantially, and unconstitutionally, overbroad.” They also challenged the city’s ability to characterize Hustler as an “adult bookstore” or “adult video store.”

The city’s attorneys filed a response last month that said, “Indeed, it would be hard to reasonably characterize a store that sells hundreds of hard-core DVDs and magazines and 1,000 dildos, penis pumps, and artificial vaginas as anything but an adult bookstore.”

Still, Sirkin said Flynt’s store was merely a retail store or boutique that “may have a few magazines or DVDs for sale.” He said the city ordinance used vague and open-ended words such as “substantial,” which does not necessarily relate to a specific amount of merchandise.

Asked whether hundreds or thousands could qualify as a “substantial” amount, Sirkin would only say: “Substantial means a lot. If you owned a Saks, you may have a lot of lingerie. Do you call it a lingerie shop?”