Hickerson v. City of New York
| Citation | 146 F.3d 99 |
| Decision Date | 03 June 1998 |
| Docket Number | Nos. 98-7269,98-7270,s. 98-7269 |
| Parties | Rachel HICKERSON, Derek Jones, Ty McConnell, and Elliot Stamler, Plaintiffs-Appellants, Amsterdam Video Inc., A & X Entertainment Inc., d/b/a Playpen II, Adult Video, Inc., Ascot Space Amusement, Inc., d/b/a Ascot Theatre, Big Apple Cinemas Inc., d/b/a Show Follies Theater, Brett Distributors, Inc., d/b/a Media Distributors, Capri Cinema Inc., Capwell Entertainment, Inc., d/b/a Legz Diamond's Playhouse, Church Street Cafe Inc., d/b/a Baby Doll Lounge, College Pt. Rest. Corp., d/b/a Gallagher's II, Crazy Fantasy Video, Inc., Cupid's Treasures, Inc., d/b/a Banana Video and Unicorn, Dara Distributors Inc., d/b/a Love Shack, Desire Video Inc., E & A Books, Inc., E & A Video and Magazine Inc., Ed-Mart Bar & Grill Inc., d/b/a Penny Whistle, For the People Theatres of N.Y., Inc., d/b/a Fair Theatre, Four Keys Enterprises, Inc., d/b/a Hollywood Peepshows, Fourteenth St. Enterprises Inc., d/b/a All Male Adult Video, Fun City Video Corp., G & D Merchandise Corp., d/b/a Peepland, Gotham Exhibitor Inc., d/b/a Peep O Rama, Helen Wolff Ltd., d/b/a Come Again, I.S. Sultars Inc., J & J Tummy Yummies Corp., d/b/a Naked City, JGJ Merchandise Corp., d/b/a Peepland/Valentina's II, JHM Video Corp., JUM Operating Corp., d/b/a Peepland, JVR Video Center Inc., d/b/a Playground, Kinematics Merchandising & Distributors, Inc., d/b/a Kinematics, Kisma Video, Inc., L & T Video, Inc., d/b/a Badlands Adult Video, Madeline D'Anthony Ent. Inc., d/b/a Harmony Theatre, Manhattan Video Inc., Marquis Video Inc., d/b/a Marquis Video, Mirage Productions Inc., d/b/a Love Shack, Montana Holdings Inc., d/b/a Runway 69, Nawan Entertainment Inc., d/b/a Euro World, Nilupul Video Inc., N.R.S. Video Inc., N.Y. Video Inc., d/b/a Love Shack, Pabon Theatre Corp., d/b/a Eros Theatre, Peregrine Enterprises, Inc., d/b/a Paradise Club, R.E.J.M., Inc., d/b/a Big Top, Ron Bob Pub Inc., d/b/a Gallagher's, Sami's Video Warehouse, d/b/a Warehouse on the Block, LTD, Serendib Video Inc., d/b/a Serendib Video, SPH Video Corp., |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Herald Price Fahringer, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP, New York City (Erica T. Dubno, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP; J. Michael Murray, Berkman, Gordon, Murray & DeVan, of counsel), for Plaintiffs-Appellants Amsterdam Video, Inc., et al.
Beth Haroules, New York Civil Liberties Union Foundation, New York City (Arthur N. Eisenberg, Norman Siegel, New York Civil Liberties Union Foundation, of counsel), for Plaintiffs-Appellants Rachel Hickerson, et al.
Leonard J. Koerner, Office of the Corporation Counsel of the City of New York, New York City (Michael D. Hess, Corporation Counsel of the City of New York, Gabriel Taussig, Elizabeth S. Natrella, of counsel), for Defendants-Appellees.
Frederick A.O. Schwarz, Jr., Cravath, Swaine & Moore, New York City, for Defendant-Respondent- Intervenor-Appellee Times Square Business Improvement District.
Wayne A. Cross, Dewey Ballantine LLP, New York City, for Defendants-Respondents-Intervenors-Appellees Center for the Community Interest, et al.
Before: VAN GRAAFEILAND, MESKILL, and CABRANES, Circuit Judges.
This case concerns an amendment to the Zoning Resolution of the City of New York (the "Zoning Amendment") regulating the zoning of "adult establishment[s]," as defined by the Zoning Amendment. The principal provisions of the Zoning Amendment limit the permissible locations of adult establishments to non-residential districts 1 and require that they be located--within the districts in which they are permitted--at least 500 feet away from any school, day care center, or house of worship; at least 500 feet from excluded districts; and at least 500 feet from one another. Plaintiffs in these consolidated cases are patrons and owners of adult establishments within New York City who claim that the Zoning Amendment violates their rights to free expression under Article I, § 8 of the New York State Constitution and the First Amendment of the United States Constitution. In a case involving a different set of plaintiffs, we recently upheld the Zoning Amendment against facial federal constitutional challenges under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. See Buzzetti v. City of New York, 140 F.3d 134 (2d Cir.1998).
The factual background of the Zoning Amendment is detailed both in Buzzetti and in prior state and federal decisions arising from the instant litigation, with which we assume familiarity. See Hickerson v. City of New York, 997 F.Supp. 418 (S.D.N.Y.1998); Hickerson v. City of New York, 932 F.Supp. 550 (S.D.N.Y.1996); Stringfellow's of New York, Ltd. v. City of New York, 171 Misc.2d 376, 653 N.Y.S.2d 801 (N.Y.Sup.Ct.1996), aff'd, 241 A.D.2d 360, 663 N.Y.S.2d 812 (1st Dep't 1997), aff'd, 91 N.Y.2d 382, 671 N.Y.S.2d 406, 694 N.E.2d 407 (1998). The instant appeal is from an order of the United States District Court for the Southern District of New York (Miriam Goldman Cedarbaum, Judge ), dated March 6, 1998, which denied plaintiffs' motion for a temporary restraining order and a preliminary injunction to stay the enforcement of the Zoning Amendment. 2 Although at the heart of this litigation is a controversy over free expression, plaintiffs have already presented their free-speech claims to the New York courts. The only question before us is whether the New York courts' rejection of plaintiffs' state constitutional claims forecloses plaintiffs from relitigating, in the form of a First Amendment claim in federal court, the same issues that were resolved against them in state court. We agree with the district court that the "full faith and credit" statute prevents a federal court from revisiting the same issues that were decided against plaintiffs by the New York state courts, which provided plaintiffs with a full and fair opportunity to litigate these issues. Accordingly, we affirm.
We review the district court's denial of a preliminary injunction for an abuse of discretion. See Bery v. City of New York, 97 F.3d 689, 693 (2d Cir.1996). "It is by this time black-letter law that the party seeking a preliminary injunction must establish that: (1) absent injunctive relief, it will suffer an irreparable injury; and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and the balance of hardships tips in favor of the movant." Alliance Bond Fund, Inc. v. Grupo Mexicano de Desarrollo, S.A., 143 F.3d 688, 696 (2d Cir.1998). "Violations of First Amendment righ...
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