Kent's Lounge, Inc. v. City of New York

Full title: KENT'S LOUNGE, INC., Appellant, v. CITY OF NEW YORK et al., Respondents

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Aug 13, 1984

104 A.D.2d 397 (N.Y. App. Div. 1984)

Opinion

August 13, 1984

Appeal from the Supreme Court, Richmond County (Rubin, J.).

Judgment affirmed, without costs or disbursements.

Petitioner is the lessee of certain premises in Staten Island. The premises are located in a C 1-1 (local retail) zoning district wherein, pursuant to the respondent Board of Standards and Appeals interpretation of the New York City Zoning Resolution, the operation of "Eating or drinking places" is permitted without recreational dancing (New York City Zoning Resolution, §§ 32-15, 32-21).

In the declaratory judgment action commenced by petitioner, and again on the instant appeal, petitioner argued, inter alia, that (1) recreational dancing is a form of speech protected by the First Amendment and (2) the New York City Zoning Resolution's blanket prohibition of recreational dancing in the zoning district in which the subject premises is located, represented an unconstitutional abridgement of petitioner's First Amendment right of freedom of speech.

We agree with the holding of Special Term, i.e., that recreational dancing is not a form of speech protected by the First Amendment.

In Commonwealth v Blackgammon's, Inc. ( 382 Mass. 610, 417 N.E.2d 377, 378), defendant was charged, inter alia, with offering entertainment "by means of * * * dancing for a fee" without the required license. The defendant argued that the statute under which it was convicted was invalid because its licensing requirements extended "to expression and conduct protected by the First Amendment of the Constitution of the United States" ( Commonwealth v Blackgammon's, Inc., 417 N.E.2d 377, 383, supra). In rejecting the defendant's argument, the Supreme Judicial Court of Massachusetts held ( Commonwealth v Blackgammon's, Inc., supra, p. 384): "[T]he types of entertainment which the complaint alleges the defendants offered to the public for a fee, without first obtaining a license to do so, are not to the same extent forms of expression protected by the First Amendment * * * It is apparent that the dancing involved here is not that of a performer, paid or otherwise, whose performance is presented for the entertainment of the public * * * but recreational dancing by members of the public themselves". In a similar vein, the Supreme Court of California held in Sunset Amusement Co. v Board of Police Comrs. ( 7 Cal.3d 64, 74, app dsmd 409 U.S. 1121) that roller skating is not a constitutionally protected form of speech, stating: "[N]o case has ever held or suggested that simple physical activity falls within the ambit of the First Amendment, at least in the absence of some element of communicating or advancing ideas or beliefs * * * The key element is, of course, communication * * * it seems inescapable that petitioners' patrons primarily use the facilities for physical exercise and personal pleasure; [the] element of communication between an artist or performer and his audience seems entirely lacking". Petitioner's reliance on Merco Props. v Guggenheimer ( 395 F. Supp. 1322) is, in our view, misplaced. In Merco ( supra, p. 1328), the plaintiff argued, inter alia, that the city's denial of its application for a cabaret license prevented it from "permitting performing artists to exercise their rights to freedom of expression". It is within that particular context that the court in Merco held that "musical entertainment, singing and dancing are considered communicative forms of expression, as opposed to unprivileged conduct" ( Merco Props. v Guggenheimer, supra, p 1328). Indeed, the United States District Court in Merco relied on the decision of the United States Supreme Court in Doran v Salem Inn ( 422 U.S. 922), which, as Special Term correctly noted, involved dancing performed by a performer for an audience, and not recreational dancing by the patrons themselves. Accordingly, petitioner's argument must be rejected (see Commonwealth v Blackgammon's, Inc., supra; Schad v Mount Ephraim, 452 U.S. 61, 68).

We have reviewed the remaining arguments raised by petitioner and find them to be without merit. Lazer, J.P., Mangano, O'Connor and Brown, JJ., concur.