Genco Importing Inc. v. City of New York
| Decision Date | 31 March 2008 |
| Docket Number | No. 07 Civ. 3560(LAK).,07 Civ. 3560(LAK). |
| Citation | 552 F.Supp.2d 371 |
| Parties | GENCO IMPORTING INC., et ano., Plaintiffs, v. CITY OF NEW YORK, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
David M. Zensky, Jason W. Sunshine, Ryan N. Marks, Akin Gump Strauss Hauer & Feld LLP, for Plaintiffs.
Ave Maria Brennan, Michelle L. Goldberg-Cahn, Assistant Corporation Counsel, Michael A. Cardozo, Corporation Counsel of the City of New York, for Defendants.
Plaintiffs Genco Importing Inc., d/b/a Manitoba's, and Richard Manitoba operate a bar in Manhattan's East Village. They bring this action against the City of New York, alleging that certain noise provisions of the New York City Administrative Code (the "Code") violate the First and Fourteenth Amendments of the United States Constitution facially and as applied. Defendant moves to dismiss the amended complaint for failure to state a claim upon which relief may be granted.1
The following facts are taken from the amended complaint2 and assumed true for the purposes of this motion.
Manitoba's is a bar that operates in space leased on the ground floor of a multi-story building at 99 Avenue B between 6th and 7th Streets.3 It is surrounded by bars, restaurants, and other commercial establishments, as well as residential units.4
Since its opening in January 1999, Manitoba's has presented and promoted live and pre-recorded performances of punk rock music.5 Until approximately 2002, it offered live musical performances several times a week, but subsequently limited them primarily to Monday evenings.6 Performances typically began at 8:00 p.m. and concluded before 10:00 p.m.7 Manitoba's installed double-paned windows and two doors to lessen the sound that emanated from the bar.8
On October 23, 2006, an inspector from the City Environmental Control Board (the "ECB") investigated a noise complaint made by a resident living on the second floor of the building in which Manitoba's is located.9 He noted that the ambient sound level was 35 dB(A) and measured a sound level of 53 dB(A) in the apartment,10 which exceeded the 45 dB(A) maximum permitted under Code Section 24-241.1.11 The inspector informed staff members at the bar that the sound level in the apartment was attributable to the live musical performance occurring within Manitoba's and issued a notice of violation and hearing.12
On February 12, 2007, an inspector investigated another noise complaint from a resident in the same building.13 The ambient noise level was 48 dB(A) and the sound level "in complainant's hallway" was 65 dB(A).14 The inspector informed staff members at Manitoba's that the noise level was attributable to its live musical performance and that the bar would be issued a notice of violation if the volume of the performance were not lowered because 65 dB(A) was unreasonable noise within the meaning of Code Section 24-218.15 The musical performance had concluded by that time, but Manitoba's received a notice of violation and hearing two weeks later.16
After receiving the second notice, Manitoba's ceased live musical performances altogether.17 Its average revenues on Monday nights subsequently dropped 47 percent.18
Violators were subject to a fine ranging from $2,000 to $8,000 for a first violation.21
"(1) is in excess of 42 dB(A) as measured with a sound level meter"; or
"(2) is in excess of 45 dB in any onethird octave band having a center frequency between 63 hertz and 500 hertz (ANSI bands numbers 18 through 27, Inclusive), in accordance with American National Standards Institute standard S1.6-1984"; or "(3) causes a 6 dB(C) or more increase in the total sound level above the ambient sound level as measured in decibels in the `C' weighting network provided that the ambient sound level is in excess of 62 dB(C)."22
The fines for violating New Code Section 24-231(a) are the same as those under its predecessor23 but may be avoided if an offending party makes permanent improvements to bring it within permissible sound levels or obtains a variance from strict application of the decibel limits.24
Violators of the Old Unreasonable Noise Prohibition were subject to fines ranging from $220 to $875 for a first violation.27
The Code defines "ambient sound" as "the sound level at a given location that exists as a result of the combined contribution in that location of all sound sources, excluding the contribution of a source or sources under investigation for violation of this code and excluding the contribution of extraneous sound sources."29 It does not amend the definition of "unreasonable noise."30 A first-time violator now may be punished by a fine ranging from $350 to $1,000.31
Plaintiffs challenge the former and current versions of both the Commercial Music and Unreasonable Noise Prohibitions, raising six claims for relief that may be categorized into two general groups.
The first, third, and fifth claims for relief collectively allege that the Commercial Music and Unreasonable Noise Prohibitions violate the Due Process Clause of the Fourteenth Amendment because they are impermissibly vague. The first specifically contends that the Old and New Commercial Music Prohibitions are unconstitutionally vague on their face. The third claim asserts that the Old Unreasonable Noise Prohibition was vague as applied, and the fifth asserts that the Old and New Unreasonable Noise Prohibitions are vague on their face.
The second, fourth, and sixth claims for relief collectively allege that the Code provisions in question infringe upon plaintiffs' First Amendment rights by placing an impermissible burden on protected speech. The second specifically challenges the Old Commercial Music and New Commercial Music Prohibitions, but does not articulate whether these challenges are facial...
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