Howard Opera House Assoc. v. Urban Outfitters, No. 2:99-CV-140.
| Court | United States District Courts. 2nd Circuit. District of Vermont |
| Writing for the Court | Sessions |
| Citation | 131 F.Supp.2d 559 |
| Parties | HOWARD OPERA HOUSE ASSOCIATES and O'Neill, Crawford & Green, P.C., Plaintiffs, v. URBAN OUTFITTERS, INC., Defendant. |
| Docket Number | No. 2:99-CV-140. |
| Decision Date | 02 February 2001 |
v.
URBAN OUTFITTERS, INC., Defendant.
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Thomas D. Anderson, Sheehey, Furlong, Rendall & Behm, Burlington, VT, for Howard Opera House Associates, plaintiff.
Peter B. Joslin, Barbara Ruth Blackman, Theriault & Joslin, Montpelier, VT, Geoffrey W. Crawford, O'Neill, Crawford & Green, Burlington, VT, for O'Neill, Crawford & Green, P.C., plaintiff.
Marc Burns Heath, Downs, Rachlin & Martin, P.C., Burlington, VT, for Urban Outfitters, Inc., defendant.
Eugene M. Bergman, City Attorney's Office, Burlington, VT, for Burlington, VT, City of, intervenor-plaintiff.
SESSIONS, District Judge.
Defendant Urban Outfitters Inc. ("Urban Outfitters") has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, seeking dismissal of Count II of Plaintiffs'
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amended complaint, on the grounds that the City of Burlington's ("City's") noise ordinance is unconstitutional, facially and as applied. For the reasons that follow, Urban Outfitters' motion is denied.
This matter involves a dispute in which landlord Howard Opera House Associates ("HOHA") and one of its tenants, the law firm of O'Neill Crawford & Green, P.C. ("OC & G"), claim that Urban Outfitters, another tenant, plays "loud and offensive music," with a high bass volume. First Am.Compl. ¶ 39. Count II of Plaintiffs' amended complaint alleges that by playing unreasonably loud music in violation of the City's noise ordinance, Urban Outfitters breached the provisions of its lease requiring it to comply with all applicable local laws. Urban Outfitters, a retailer of apparel and accessories designed to appeal to youthful customers, claims that the style and volume level of the music it plays is an essential element of its business, giving "voice to youthful rebellion, ideals, and aspirations, ... and, not coincidentally, attract[ing] customers into the store." Mot. for J. on Pleadings at 7 (paper 95). To force it to turn down the volume or face civil and criminal sanctions, it argues, not only encroaches upon its ability to turn a profit, but unconstitutionally infringes upon its free speech rights.
On April 28, 1999 Urban Outfitters received a noise citation from the City for playing "loud music" at its Burlington store, in violation of section 21-13 of the Burlington Code.1 A civil enforcement action was commenced before the State Judicial Bureau. At Urban Outfitters' request, adjudication of this municipal complaint has been continued, pending a determination in this Court of the constitutionality of the ordinance.
On May 4, 1999, HOHA and OC & G filed this suit against Urban Outfitters.
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Urban Outfitters has moved to dismiss Count II of the complaint, arguing that the ordinance's ban on "loud or unreasonable noise" is unconstitutionally vague and overbroad. In opposition HOHA, OC & G and the City (allowed to intervene in this action for the limited purpose of defending the constitutionality of its ordinance) contend first that the Court should abstain under the Younger doctrine. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). They further argue that Urban Outfitters' loud music is commercial expression, and that the ordinance is constitutional facially and as applied.
I. Rule 12(c)
Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). The standard applicable to a Rule 12(c) motion is the same as for a Rule 12(b)(6) motion to dismiss: all allegations contained in the complaint are accepted as true, and all reasonable inferences are drawn in favor of the nonmoving party. See Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir.1996). A court should grant the motion where "it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Id.See also, Conley v. Gibson 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
II. Younger doctrine
In Younger v. Harris, the Supreme Court held that, absent extraordinary circumstances, a federal court may not enjoin an ongoing state criminal proceeding. Younger, 401 U.S. at 45, 91 S.Ct. 746. See also New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 364, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) ("NOPSI"). The doctrine has been interpreted to include proceedings for declaratory as well as injunctive relief directed at state criminal proceedings, see Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); state contempt proceedings, see Juidice v. Vail, 430 U.S. 327, 335, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); enforcement of state court orders, see Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987); and certain state civil proceedings, see Huffman v. Pursue Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). There are limits to the Younger doctrine's reach, however. In NOPSI, the Supreme Court rejected the notion that the availability or even the pendency of state judicial proceedings prevents the federal courts from acting. See NOPSI, 491 U.S. at 373, 109 S.Ct. 2506.
The principles of comity and equity inform Younger and its progeny. Equity requires federal courts to refrain from acting where there is an adequate remedy at law and no irreparable injury will result. Younger, 401 U.S. at 43-44, 91 S.Ct. 746. Comity requires federal courts to show proper respect for state institutions and state functions. Id., 401 U.S. at 44, 91 S.Ct. 746. Neither comity nor equity is at stake in this case.
Urban Outfitters has not raised its constitutional argument to circumvent the state's civil enforcement action. Its constitutional argument has been interposed as a defense to one count of a multi-count civil suit brought against it by private parties. Urban Outfitters did not initiate the lawsuit. The City is involved in the lawsuit only because it successfully moved to intervene. HOHA and OC & G argue that Urban Outfitters' motion for judgment on the pleadings is the functional equivalent of a declaratory judgment action, but no party in this case is seeking equitable relief, whether by claim or counterclaim. No one is seeking this Court's intercession in an ongoing state proceeding. Given the federal courts' "virtually unflagging obligation" to exercise jurisdiction this Court cannot properly abstain from hearing this case. Colorado River Water Conservation
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Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).
III. Freedom of Speech
A. The ordinance implicates the First Amendment
The City's noise control ordinance bans "any loud or unreasonable noise," defined as noise which "disturbs, injures or endangers the peace or health of another, or which endangers the health, safety or welfare of the community." Burlington Code, § 21-13(b)(1). The ordinance also prohibits sound from radios, television sets, musical instruments, phonographs and the like which "disturb[s] the peace, quiet, or comfort of the public," or which "is audible through walls between units within the same building, from another property or from the street." Id., § 21-13(b)(2)(a). Second and subsequent offenses are punishable criminally. Id., § 21-13(e)(2).2
The playing of music enjoys First Amendment protection. See Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ("Music is one of the oldest forms of human expression.") Moreover, the City's ordinance restricts the playing of music is which is audible from the street, by long tradition a public forum. See § 21-13(b)(2)(a). A government's right to regulate expression in a public forum is also limited by the First Amendment. See Rock Against Racism, 491 U.S. at 791, 109 S.Ct. 2746; Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). The ordinance bans communication that is conducted in a certain manner (unreasonably noisily) and that is audible in certain places (through walls, from another property, or from the street). The ordinance thus implicates the First Amendment; the Court must examine whether the City's restriction on speech violates the First Amendment.
B. The challenged provisions of the ordinance are not aimed at commercial expression
The challenged provisions of the ordinance apply to any entity that engages in the prohibited conduct, whether individual or corporate, whether engaged in communicative activity designed to sell a product or to promote an idea. The restrictions are not directed to commercial establishments or products in particular, distinguishing these provisions from regulations at issue in such commercial speech cases as Board of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) (state university regulation of commercial enterprises operating on school property); Bad Frog Brewery, Inc. v. New York State Liquor Auth., 134 F.3d 87 (2d Cir.1998) (state liquor authority's ban on beer bottle label depicting frog making rude gesture); and Anabell's Ice Cream Corp. v. Town of Glocester, 925 F.Supp. 920 (D.R.I.1996) (town ordinance banning use of amplified devices by hawkers and peddlers).
The principal question in this case thus is not the extent to which Urban Outfitters enjoys First Amendment protection, i.e., whether it engages in commercial or non-commercial speech when it plays music in its stores. The principal question is whether the City's ordinance impermissibly "abridges expression that the First Amendment was meant to protect." First Nat'l Bank v. Bellotti, 435 U.S. 765, 776, 784, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (speech that would...
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Genco Importing Inc. v. City of New York, 07 Civ. 3560(LAK).
...(quoting Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. 1855). 82. Cpt. ¶ 66. 83. See Howard Opera House Assocs. v. Urban Outfitters, Inc., 131 F.Supp.2d 559, 564 (D.Vt. 84. 322 F.3d 125, 128 (2d Cir.2003) (quoting Burlington Code of Ordinances § 21-13(b)(1)). The court viewed the holding as an ......
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State v. Cornwell, 00-C.A.-223.
...Therefore, appellant may not maintain an overbreadth challenge. See Howard Opera House Assoc. v. Urban Outfitters, Inc. (D.Vt.2001), 131 F.Supp.2d 559, 564. {¶ 31} In appellant's third argument, he contends that Ord. 539.07(b)(1) was applied in a selective and discriminatory manner. Selecti......
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The State v. Cornwell, 02-LW-4058
...Therefore, appellant may not maintain an overbreadth challenge. See Howard Opera House Assn. v. Urban Outfitters, Inc. (D.Vt. 2001), 131 F.Supp.2d 559, 564. In appellant's third argument he contends that Ord. 539.07(b)(1) was applied in a selective and discriminatory manner. Selective prose......
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State v. Steven Cole, 02-LW-4068
...Appellant may not maintain an overbreadth challenge. See Howard Opera House Assoc. v. O'Neill, Crawford & Green (D.Vt., 2001), 131 F.Supp.2d 559, 564. This leads us to a review of Appellant's conviction to see if there is a constitutional violation as applied to the facts of the case. Appel......
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State v. Cornwell, No. 00-C.A.-223.
...Therefore, appellant may not maintain an overbreadth challenge. See Howard Opera House Assoc. v. Urban Outfitters, Inc. (D.Vt.2001), 131 F.Supp.2d 559, 564. {¶ 31} In appellant's third argument, he contends that Ord. 539.07(b)(1) was applied in a selective and discriminatory manner. Selecti......
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Genco Importing Inc. v. City of New York, No. 07 Civ. 3560(LAK).
...(quoting Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. 1855). 82. Cpt. ¶ 66. 83. See Howard Opera House Assocs. v. Urban Outfitters, Inc., 131 F.Supp.2d 559, 564 (D.Vt. 84. 322 F.3d 125, 128 (2d Cir.2003) (quoting Burlington Code of Ordinances § 21-13(b)(1)). The court viewed the holding as an ......
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The State v. Cornwell, 02-LW-4058
...Therefore, appellant may not maintain an overbreadth challenge. See Howard Opera House Assn. v. Urban Outfitters, Inc. (D.Vt. 2001), 131 F.Supp.2d 559, 564. In appellant's third argument he contends that Ord. 539.07(b)(1) was applied in a selective and discriminatory manner. Selective prose......
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State v. Steven Cole, 02-LW-4068
...Appellant may not maintain an overbreadth challenge. See Howard Opera House Assoc. v. O'Neill, Crawford & Green (D.Vt., 2001), 131 F.Supp.2d 559, 564. This leads us to a review of Appellant's conviction to see if there is a constitutional violation as applied to the facts of the case. Appel......