Opinion
99-CV-921 (LEK/DRH)
December 18, 2000
DECISION AND ORDER
Presently pending before the Court is Plaintiff's renewed motion for a preliminary injunction. For the following reasons, Plaintiff's motion is GRANTED.
I. Background
Plaintiff, a New York corporation has lease fire damaged property located at 171 Montgomery Street in Albany, New York with the intent of operating an "all nude juice bar". This business is classified as an "[a]dult [e]ntertainment" establishment under Albany's Zoning code. consequently, Plaintiff must locate it in an area zoned as either a "C-M Light Industrial District" or an "M-1 General Industrial District" and obtain a "special use permit" from Albany's seven member Board of Zoning Appeals before it can begin operation. See Albany, N.Y., Code §§ 375-75, 375-76, and 375-14(A)(3) (1999).
specifically, Plaintiff's business is an "Adult Cabaret" under Albany's Zoning Code. See Albany, N.Y., Code § 375-7 (1999). An "Adult Cabaret" is defined, in part, as "[a] cabaret that features topless dancers, go-go dancers, strippers, male or female impersonators or similar entertainers for observation by patrons." Id.
In the instant suit, Plaintiff is challenging the constitutionality of the second requirement as applied to operators of "adult entertainment" establishments. Specifically, Plaintiff seeks to enjoin enforcement of Albany's "special use permit" requirement against owners and operators of "adult entertainment" establishments because it constitutes a prior restraint on free speech in violation of the First and Fourteenth Amendments to the United States Constitution.
Although Plaintiff has not yet applied for a "special use permit," the Second Circuit has already held that a party seeking to enjoin enforcement of a licensing requirement alleged to be a prior restraint need not apply for a license to challenge its constitutionality. See 414 Theater Corp. v. Murphy, 499 F.2d 1155, 1159 (2d Cir. 1974); see also Freedman v. Maryland., 380 U.S. 51, 56 (1965); Charette v. Town of Oyster Bay, 94 F. Supp.2d 357 (E.D.N.Y. 2000). The Court notes that this view is not universal. See Ward v. County of Orange, 55 F. Supp.2d 1325, 1334 (M.D. Fla. 1999) (dismissing a constitutional challenge as unripe when Plaintiff failed to apply for an adult entertainment license before filing suit).
II. Discussion
A. Preliminary Injunction StandardOrdinarily, the Court may grant preliminary injunctive relief when the moving party demonstrates:
(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.International Dairy Foods Ass'n v. Amestoy, 92 F.3d 67, 70 (2d Cir. 1996) (citations omitted); see Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 142 (2d Cir. 1997). However, when "the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme" a district court is not entitled to apply the "less rigorous fair-ground-for-litigation standard." Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989); see also Union Carbide Agric. Prods. Co. v. Costle, 632 F.2d 1018 (2d Cir. 1980). Because Plaintiff seeks to restrain government action taken in the public interest pursuant to a statutory scheme, it must establish irreparable harm and a likelihood of success on the merits of its claim before an injunction will issue against the City.
1. Irreparable Harm
As discussed in this Court's prior order denying Plaintiff's motion for a preliminary injunction, irreparable harm is "injury that is neither remote nor speculative, but actual and imminent and that cannot be remedied by an award of monetary damages." Forest City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 153 (2d Cir. 1999) (citation and internal quotations omitted). Notwithstanding the fact that Plaintiff can only show monetary damages due to its inability to operate, if Plaintiff can show that it is also suffering a deprivation of its First Amendment rights, it can, as a matter of law, also show irreparable harm. See Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996); see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (stating that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury"). Thus, "`when an injunction is sought to protect First Amendment rights, likelihood of success on the merits and irreparable harm merge into a single threshold requirement.'" 801 Conklin Street Ltd. v. Town of Babylon, 38 F. Supp.2d 228, 235 (E.D.N.Y. 1999) (quoting Hickerson v. City of New York, 997 F. Supp. 418, 420 (S.D.N.Y. 1998)).
This Court previously denied Plaintiff's motion for a preliminary injunction on the basis that it had not provided evidence indicating any imminent or actual injury as required to meet its burden of showing irreparable harm. Underpinning this conclusion was the fact that the premises located at 171 Montgomery Street were subject to an order of the Albany Fire Department declaring it unsafe and unfit for occupancy because of fire damage. The Court concluded that even if an injunction against the City was granted, the condition of the building rendered Plaintiff incapable of operating its business. Consequently, the Court ordered Plaintiff to provide additional evidence indicating that, barring government interference, repairs would be or were in fact made such that it could actually operate its business.
In response to this Order, Plaintiff submitted a Certificate of Completion indicating that non-structural repairs needed due to fire damage were complete. Additionally, Plaintiff tendered an affidavit from Vincent Norment, its president and director. In this affidavit Mr. Norment attested that (1) the City denied Plaintiff's application for another building permit because he had not applied for and received a "special use permit" and (2) that the corporation was incurring rent, insurance, and tax expenses while the matter remained in litigation.
While this evidence is not much different from evidence provided in support of Plaintiff's first motion for a preliminary injunction, this Court does note that Plaintiff has completed some repairs necessary to operate its business. Moreover, given that Plaintiff has already expended significant sums of money in procuring and maintaining its building, it is this Court's determination that Plaintiff is willing to make all necessary repairs within a reasonable amount of time and with reasonable effort upon the issuance of an injunction. See Charette v. Town of Oyster Bay, 94 F. Supp.2d at 379.
If this Court required Plaintiff to invest further time and resources before addressing the merits of Plaintiff's claims, it could, as previously noted, "effect the very restraint of speech the U.S. Constitution forbids, since business operators would clearly be reluctant to invest serious time and capital in a location with the possibility that a permit denial may render such investments fruitless." B V Greene Inc. v. City of Albany, No. 99 Civ. 921, slip op. at 9-10 (N.D.N.Y. Aug. 9, 1999). Accordingly, Plaintiff has met the requisite showing of irreparable injury and the Court will analyze the likelihood of success on the merits of its claim.
2. Likelihood of Success on the Merits
As discussed above, because Plaintiff alleges that Albany's "special use permit" requirement, as applied to owners and operators of "adult entertainment" establishments, is a prior restraint on protected speech, it must, in addition to showing irreparable injury, show a likelihood of success on the merits of its claim.
a. Prior Restraint Standard
The Supreme Court has repeatedly held that non-obscene nude dancing, of the type at issue in this case, is protected expression under the First Amendment. See California v. LaRue, 409 U.S. 109, 118 (1972); Doran v. Dalem Inn, Inc., 422 U.S. 922, 932 (1975); Shad v. Mount Ephraim, 452 U.S. 61, 66 (1981); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991) (plurality opinion). Nevertheless, nude dancing and other forms of protected expression are still subject to government restrictions as long as those restrictions are content neutral, serve a substantial government interest, and allow for reasonable alternative avenues of communication.See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986). However, any governmental restriction that requires a party to obtain permission, through a licensing scheme or otherwise, before engaging in protected expression bears a heavy presumption against constitutional validity because it gives "give public officials the power to deny use of a forum in advance of the actual expression." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975); see also, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-26 (1990) (hereinafter "Paris II"); Beal v. Stearn, 184 F.3d 117, 124 (2d Cir. 1990).
This does not mean that a regulation that constitutes a prior restraint on protected speech is per se unconstitutional. Rather, a prior restraint on speech is valid as long as it does not place "unbridled discretion in the hands of a government official or agency." Paris II, 493 U.S. at 226. Objective standards that limit a government official's discretion are necessary to ensure that the official does not have the power to arbitrarily discriminate against "disfavored speech or disliked speakers." See City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 759 (1988). Hence, a permit system that includes "narrow, objective, and definite standards" to control an official's discretion will pass constitutional muster. 801 Conklin Street Ltd, 38 F. Supp.2d at 243 (citing Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969)).
Additionally, a challenged permit scheme must contain procedural safeguards that ensure a reasonably quick decision on any permit application. See Paris II, 493 U.S. at 228. The policy underlying this requirement is that if a government entity delays the issuance of a permit, the delay "results in the unconstitutional suppression of protected speech." Id. As such, any permit scheme constituting a prior restraint on protected speech must (1) require the government official to issue a decision on the permit application within a "specified brief period" and (2) allow for prompt judicial review of the decision, so that the effects of an erroneous denial of a permit are minimized. See Freedman, 380 U.S. at 59.
b. Albany's "Special Use Permit" Statute
Albany'S "special use permit" statute enunciates a series of standards that serve to guide the zoning board's discretion when issuing a "special use permit." In their entirety, these standards state:
B. Standards.
(1) The Board may approve a special use permit only if the proposed use:
(a) Is listed as a permitted special use in the appropriate zoning district.
(b) Will conform to the standards and conditions specified in this chapter for that use.
(c) Will not have an undue adverse effect upon adjacent property, the character of the neighborhood, traffic conditions, parking, utility facilities or other matters affecting the public health, safety, welfare or convenience.
(d) Operations in connection with the proposed use will be not more objectionable to nearby properties by reason of noise, fumes, vibration, illumination, etc. than the operations of any permitted use not requiring a special use permit.
(e) Will be served adequately by essential public facilities and services such as highways, streets, parking spaces, police and fire protections, drainage structures, refuse disposal, water and sewer and schools.
(f) Complies with all additional requirements imposed on it by the provisions of this chapter.
(2) The Board may impose additional conditions to ensure that the proposed use is conducted in a manner compatible with the surrounding neighborhood and will not constitute a threat to the public health, safety, welfare or convenience.
C. General considerations. As part of its review of a special use permit application, the Board may consider the following in addition to compliance with the standards described in the previous subsection:
(1) whether, and to what extent, the proposed use is necessary or desirable to provide a service or facility which is in the interest of the public convenience or will contribute to the general welfare.
(2) To what extent the applicant has attempted to minimize any adverse effects of the proposed use on its surroundings.
Albany, N.Y., Code § 375-27 (1999) (emphasis added).
Defendant argues that these standards, when viewed in their entirety, do not promote the type of "unbridled discretion" warned against inFreedman and Paris II. See Freedman, 380 U.S. at 59; Paris II, 493 U.S. at 226. At the same time, Defendant fails to explain how the Albany Zoning Statute at issue in this case differs from similar statutes that courts in this Circuit and other Circuits have repeatedly struck down.See, e.g., 414 Theater Corp, 499 F.2d at 1159; 801 Conklin Street Ltd., 38 F. Supp.2d at 243; T A's, Inc. v. Town Board, 109 F. Supp.2d 161, 174 (S.D.N.Y. 2000); Dease v. City of Anaheim, 826 F. Supp. 336 (C.D.Cal. 1993); 3570 East Foothill Blvd., Inc. v. City of Pasadena, 912 F. Supp. 1268, 1275 (C.D.Cal. 1996); Town of Islip v. Caviglia, 141 A.D.2d 148, 166 (2d Dep't 1998); Marcus v. Town of Henrietta, 207 A.D.2d 1026, 1027 (4th Dep't 1994).
For example, the standards struck down in 801 Conklin Street consisted of an enumerated list of standards of varying specificity like those at issue here. See 801 Conklin Street Ltd., 38 F. Supp.2d at 233-34. Declaring these standards unconstitutional, the Court noted that they contained "both detailed requirements germane to the determination of the suitability of a particular adult use business, and open-ended nebulous requirements which clearly bestow unlimited discretion to the Town Board, leaving open the possibility of content-based discrimination."Id. at 244. The Court further noted that the Town Board's unconstitutional discretion was "heightened by the additional provision allowing [it] to `impose any additional requirement to assure that the standards . . . will be met." Id.
The City of Albany's standards are similar to the ones in 801 Conklin Street and the statutes in each of the other above cited cases. The enumerated portion of the standards contains ambiguous and indefinite requirements not applicable to "adult entertainment" establishments. Furthermore, they are riddled with vague and essentially subjective requirements that fail to adequately advise applicants whether, and under what circumstances, they can engage in their constitutionally protected activities. See T A's, Inc., 109 F. Supp.2d at 172. Finally, subsections B and C of the ordinance, which allow the Board of Zoning Appeals to impose additional ad-hoc requirements and to grade the desirability of the proposed use, magnify the already unconstitutional discretion the statute grants to the Board.
Because the Court concludes that the "special use permit" standards vest unbridled discretion in Albany's Board of Zoning Appeals, it does not address the issue of whether the current statutory scheme also provides adequate judicial safeguards.
For these reasons, the Court concludes that Plaintiff has shown a likelihood of success on the merits of its claim and is entitled to a preliminary injunction against the City. Moreover, because the preceding analysis reveals that the standards governing the Appeal Board's discretion to issue a "special use permit" to "adult entertainment" establishments are facially unconstitutional, the Court concludes that Plaintiff is entitled to declaratory relief and a permanent injunction barring application of these standards to "adult entertainment" establishments that wish to engage in protected forms of expression. The only remaining question is whether the scope of this permanent injunction applies to the statute in its entirety or if the Court can sever those provisions adjudged unconstitutional from the remainder of the statute.
B. Severability
Although the "special use permit" standards, as currently constituted, are invalid as applied to "adult entertainment" establishments, they may be completely appropriate when applied to business that do not involve protected speech. In addition, merely because "one part of a statute is unconstitutional does not necessarily invalidate the entire act. It is a fundamental rule that an unconstitutional part of a statute may be severed and rejected while the valid portion may stand." Town of Islip, 141 A.D.2d at 166-67.
Severability of a local ordinance is a "question of state law." City of Lakewood, 486 U.S. at 772 (citing Mayflower Farms, Inc. v. Ten Eyck, 297 U.S. 266, 274 (1936)). To determine whether severance is appropriates the Court must ascertain "whether the legislatures if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether." People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48, 60 (1920). Although Courts tend to apply severance liberally, especially if the law contains a severability clause, this court must still determine if severance will render "the balance of the legislation incapable of functioning independently because the valid and invalid provisions are so intertwined." National Adver. Co. v. Town of Niagara, 942 F.2d 145, 148 (2d Cir. 1991).
Applying these rules to the instant case indicates that severance is appropriate. First, Albany's local legislature has indicated, through a severance provision in Albany's City Code, that it wishes the remainder of the statute to be enforced even though the "special use permit" requirement is invalid as applied to "adult entertainment" establishments. See Albany, N.Y., Code § 1-5 (1999). Second, the unconstitutional portions of the statute are not so intertwined with constitutional portions of the statute to render the balance incapable of functioning independently.
In relevant part that portion of Albany's Zoning code states that if any portion of the Code is "adjudged . . . invalid, such judgment shall not affect, impair, or invalidate the remainder" of the Code. Albany, N.Y. Code § 1-5 (1999).
As a matter of comity and federalism, this Court is loathe to pick and choose which of the "special use permit" standards applied to "adult entertainment" business should remain or be removed. See 801 Conklin Street Ltd., 38 F. Supp. at 245-46. Moreover, these same interests counsel "conservativism in imposing [the Court's] interpretative views on state statutes." National Adver. Co., 942 F.2d at 151 (citing Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 508 (1985) (O'Connor, J. concurring)). Thus, the simplest and most efficient manner to rectify this problem is to sever the term "[a]dult entertainment establishments" from Code Sections 375-75(C)(1) and 375-76(C)(1) and leave the task of redrafting any "special use permit" requirement applicable to "adult entertainment" establishments with the Albany City Council.
Accordingly, it is hereby
ORDERED that Plaintiff's motion for a preliminary injunction is GRANTED; and it is further
ORDERED that Defendant is permanently enjoined from enforcing Albany City Code Sections 375-75(C)(1) and 375-76(C)(1) against Plaintiff; and it is further
DECLARED that Albany City Code Sections 375-75(C)(1) and 375-76(C)(1) are unconstitutional prior restraints of Plaintiff's First Amendment protected speech rights, and are SEVERED from the balance of Chapter 375 of Albany's City Code; and it is further
ORDERED that the term "adult entertainment establishments" is added to Albany City Code Sections 375-75(A) and 375-76(A) as paragraph 38 and 5 respectively until Albany's City Council enacts constitutionally valid "special use permit" standards applicable to "adult entertainment establishments"; and it is further
ORDERED that the Clerk serve a copy this order on all parties by regular mail.
IT IS SO ORDERED.