Brownell v. City of Rochester

• Decision Date: 14 May 2001
• Docket Number: Nos. 00-CV-6597L, 00-CV-5698L, 01-CV-6012L.,s. 00-CV-6597L, 00-CV-5698L, 01-CV-6012L.
• Citation: 190 F.Supp.2d 472
• Parties: Thomas G. BROWNELL, Barrell of Dolls Saloon, Inc., Plaintiffs, v. CITY OF ROCHESTER, New York, Defendant. Chuck Zicari, C & A Playmates, Inc., Plaintiffs, v. City of Rochester, New York, Defendant. S.J.G. of Rochester, Inc., d/b/a Mirage, Plaintiff, v. City of Rochester, New York, Defendant.
• Court: U.S. District Court — Western District of New York

190 F.Supp.2d 472

Thomas G. BROWNELL, Barrell of Dolls Saloon, Inc., Plaintiffs, v. CITY OF ROCHESTER, New York, Defendant.

Chuck Zicari, C & A Playmates, Inc., Plaintiffs, v. City of Rochester, New York, Defendant.

S.J.G. of Rochester, Inc., d/b/a Mirage, Plaintiff, v. City of Rochester, New York, Defendant.

Nos. 00-CV-6597L, 00-CV-5698L, 01-CV-6012L.

United States District Court, W.D. New York.

May 14, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David Brickman, Albany, NY, for Thomas G. Brownell, Barrell of Dolls Saloon, Inc.

Linda S. Kingsley, Rochester, NY, Jeffrey P. Eichner, Rochester, NY, for City of Rochester.

DECISION AND ORDER

LARIMER, Chief Judge.

This litigation once again compels a federal court to deal with an activity — nude barroom dancing — that is repugnant to a large segment of the community. No doubt in response to that sentiment, the City of Rochester, like other municipalities, has enacted an ordinance ("the Ordinance") which restricts the type of conduct at establishments providing such entertainment. The Ordinance also imposes exhaustive licensing requirements for those who would operate and perform in such emporia.

The unpopularity of such activity, however, has never been the litmus test for determining whether that activity should be banned. The First Amendment of the United States Constitution was adopted to guarantee that the government could not abridge the expression and presentation of unpopular ideas. "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989).

A newcomer to the dispute over barroom nude dancing might well express skepticism that such activity is covered by the First Amendment at all. Although debates about the morality or social acceptability of nude dancing and other "adult" entertainment will likely continue for many years to come, as a matter of constitutional law the matter largely has been put to rest. The United States Supreme Court has established that such activity, provided that it is not obscene, constitutes expressive conduct that is entitled to protection under the First Amendment. The expressive conduct is an erotic one which, by its nature, may be troubling to a segment of the populace. No matter how tasteless such performances may appear to many, until the United States Supreme Court changes its view, such dancing is entitled to protection under the First Amendment. If the principles set forth in the First Amendment are to survive, then it is precisely those ideas and beliefs which claim the fewest adherents, and which large segments of society find the most offensive, that are in the greatest need of the bulwark of the First Amendment.

Although the dance may be tasteless and indecent to many, like other "unpopular" speech (whether written, spoken or performed) it is entitled to its place, albeit a modest one, in the marketplace of ideas. The Court's task is not to determine the morality, tastefulness or artistic merits of the conduct at issue. The issue before me is simply whether the City's regulation of conduct that all sides agree is constitutionally protected runs afoul of the First Amendment.

After careful review, I find that portions of the Ordinance violate the First Amendment and must be struck down as unconstitutional. Therefore, plaintiffs' motion for an injunction enjoining the City from enforcing the Ordinance is granted in part.

FACTUAL BACKGROUND

These three actions have been brought by three adult entertainment businesses in the City of Rochester, New York ("the City"), and their owners, challenging the Ordinance adopted by the City on September 22, 2000. The Ordinance, most of which took effect on January 31, 2001,¹ amends the City's Municipal Code by, inter alia, adding a new chapter ("Chapter 98") that provides for the licensing and regulation of sexually oriented businesses within Rochester. Plaintiffs, who are all represented by the same attorney and whose complaints are virtually identical,² have sued the City under 42 U.S.C. §§ 1983, 1985 and 1988, alleging that the Ordinance violates their rights under the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. Simultaneously with the commencement of the actions, plaintiffs also moved for a preliminary injunction enjoining defendant from enforcing Chapter 98.

The Ordinance (Appendix A to this Decision and Order) states that its purpose is to regulate sexually oriented businesses in the City in order to address certain undesirable "secondary effects" associated with such businesses. Those secondary effects generally include crime (such as prostitution), health concerns (such as the transmission of sexually transmitted diseases), and the downgrading of property values in areas near sexually oriented businesses.

Section 98-3 of the Ordinance sets forth four types of sexually oriented businesses for which licenses are required, the most pertinent to these actions being "adult cabaret," which is defined as "a business enterprise which regularly features or offers to the public, customers or members, performances by persons who appear nude or semi-nude or live performances that are characterized by their emphasis on the exposure, depiction or description of specified anatomical areas³ or the conduct or simulation of specified sexual activities."⁴ The Ordinance makes it unlawful for anyone to operate a sexually oriented business, or to work or perform, or to allow any employee to work or perform, nude or semi-nude at a sexually oriented business, without a valid license. Ordinance § 98-4(A).

The Ordinance sets forth a number of requirements for issuance of a sexually oriented business license, as well as various items of information that must be supplied by the applicant, including the applicant's name and address, whether the applicant has been convicted of certain crimes, partnership or corporate information, if applicable, etc.

The Ordinance makes the Chief of Police ("the Chief") the issuing authority for sexually oriented business licenses. Upon the filing of an application for a sexually oriented business license, an investigation is to be performed within thirty days by certain City agencies to determine compliance with the Ordinance and applicable zoning, fire, and property codes. Upon conclusion of the investigation, the Chief must issue the license unless one or more disabling conditions (e.g., conviction of one of the specified crimes) are found to exist.

The Ordinance states that "[d]eterminations resulting from a person's background, or activities at a sexually oriented business, with respect to the denial, suspension, or revocation of a license, which incidentally burden free expression, shall be no broader than needed to achieve City goals." Ordinance § 98-17. The Ordinance further provides that upon denial, suspension or revocation, "the applicant or licensee may seek prompt judicial review of such administrative action pursuant to Article 78 of the [New York] Civil Practice Law and Rules." The denial, suspension or revocation "shall be stayed for a period of twenty (20) days and, if a proceeding is brought to challenge the administrative action, throughout the pendency of the proceeding in the trial court. The administrative action shall be promptly reviewed by the court." Ordinance § 98-19.

The Ordinance then goes on to set forth additional regulations relating to activities on the premises of sexually oriented businesses, which affect customers and performers alike. These include a proscription of certain "specified sexual activities," a requirement that performers be on a stage at least eighteen inches above the floor and at least six feet from the nearest customer, a prohibition of physical contact between performers and customers, etc. Ordinance § 98-21.

Section 98-28 provides that the "Municipal Code Violations Bureau shall hear and determine charges involving violations of this chapter. Any person who violates this chapter shall be subject to the penalties set forth in Section 13A-11G of the Municipal Code." The latter section provides for fines ranging from $100 for a first offense to $300 for third and subsequent offenses, with additional penalties of double those amounts upon default.

As stated, plaintiffs in the instant cases are all sexually oriented businesses and their owners. In addition, two of the individual plaintiffs, Thomas G. Brownell and Dennis S. Giunta, are alleged to be managers of their sexually oriented businesses. The sexually oriented businesses in these actions fall within the Ordinance's definition of "adult cabarets," i.e., they all feature live nude or semi-nude entertainers.

Plaintiffs contend that the Ordinance constitutes an impermissible prior restraint on the exercise of their rights under the First Amendment. In particular, plaintiffs challenge several aspects of the licensing system: the requirement that information on the license application be given under oath; the Chief's discretion to determine if any information on the application is false; and the nature of the information required to be provided, much of which plaintiffs contend is sensitive in nature and irrelevant to any legitimate interests of the City. Plaintiffs further argue that requiring applicants to provide information about such matters as their criminal records will have a chilling effect on persons who would like to obtain a sexually oriented business license. In addition, plaintiffs contend that many of the restrictions on performers' actions while on stage impermissibly restrict their freedom of expression under the First Amendment.

DISCUSSION

I. Standing

The first issue that must be addressed is one of standing. The City...