Lucifer's Gate, Inc. v. Town of Van Buren, Onondaga County

• Decision Date: 29 September 1975
• Parties: LUCIFER'S GATE, INC., Plaintiff, v. TOWN OF VAN BUREN, COUNTY OF ONONDAGA, et al., Defendants.
• Court: New York Supreme Court

Page 304

373 N.Y.S.2d 304

83 Misc.2d 790

LUCIFER'S GATE, INC., Plaintiff, v. TOWN OF VAN BUREN, COUNTY OF ONONDAGA, et al., Defendants.

Supreme Court, Onondaga County.

Sept. 29, 1975.

Michael J. Brown, Buffalo, Frank A. Gualtieri, Syracuse, for plaintiff.

Alexander J. Hersha, Camillus, for defendants.

DECISION

STEWART F. HANCOCK, Jr., Justice:

In this declaratory judgment action the Court is confronted with a pure question of law, viz.: is the ordinance of May 12, 1975 of the Town of Van Buren--enacted for the stated purpose of regulating the amount of clothing to be worn in certain public places such as restaurants and bars--unconstitutional on its face and therefore invalid in view of recent United States Supreme Court and other controlling federal decisions pertaining to similar 'anit-topless' ordinances? ¹ See particularly Salem Inn, Inc. v. Frank, (2nd Cir., 1975) 522 F.2d 1045, affg. 381 F.Supp. 859 (E.D.N.Y.1974); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) affg. Salem Inn, Inc. v. Frank, (2 Cir.) 501 F.2d 18, affg. 364 F.Supp. 478 (E.D.N.Y. 1973) ².

In this Court's opinion he ordinance--although undeniably well-intentioned--must be found invalid under existing precedents on two grounds:

1) It is overbroad in its scope and would, as drawn, control or prohibit actions protected as expression under the 1st Amendment of the United States Constitution. Doran v. Salem Inn, Inc., ('Salem I') 422 U.S. 922, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975); Lewis v. City of New Orleans, 415 U.S. 130, 134, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Thornhill v. Alabama, 310 U.S. 88, 97, 98, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975); Salem Inn, Inc. v. Frank, ('Salem II') (2nd Cir. Aug. 28, 1975), 174(55) NYLJ (9--17--75) 1, Col. 6, 2 Col. 4; California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975).

2) Since it prohibits non-obscene topless or nude performances in restaurants, bars and discotheques but not in theatres, out-door or drive-in theatres, burlesque halls or other places of entertainment with no showing of any justification for such distinction, the ordinance is discriminatory and violates plaintiff's rights under the equal protection clause of the 14th Amendment. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Salem Inn, Inc. v. Frank, ('Salem II') (2nd Cir., 1975) 522 F.2d 1045.

Despite the Town's insistence in its briefs that the ordinance was passed solely for the purpose of controlling the amount of clothing worn in public places and that it did not at all intend to prohibit or control nude or topless dancing, there can be no doubt that the ordinance is sufficiently broad to proscribe totally such performances in restaurants and bars, including plaintiff's. ³ If an ordinance, while lawfully prohibiting or controlling conduct Which is not protected as expression by the 1st Amendment, also unlawfully prohibits or controls acts or performances Which are constitutionally protected--even if not so intended--it must fall. Doran v. Salem Inn, Inc., ('Salem I'), supra; Lewis v. City of New Orleans, supra; Thornhill v. Alabama, supra. Such is the case here. For while the ordinance might have been more narrowly drawn so as only to control or prohibit--within permissible constitutional limits--certain undesirable actions by patrons or lewd and obscene performances by entertainers, it is not so drawn. Instead, it includes within the area of its prohibition or control non-obscene performances or dances which have been held to be a form of expression protected by the 1st Amendment of the United States Constitution. Salem Inn, Inc. v. Frank, ('Salem II'), (2nd Cir. 1975) 522 F.2d 1045, affg. 381 F.Supp. 859 (E.D.N.Y. 1974); Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975); California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); Erznoznik v. City of Jacksonville, --- U.S. ---, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975).

On August 28, 1975 in 'Salem II', the Second Circuit affirmed District Court Judge Bartels' clear-cut holding that a virtually identical ordinance ⁴ enacted by the Town of North Hempstead was overbroad and unconstitutional since it prohibited non-obscene dancing. As the 2nd Circuit stated: '. . . recognize that there is only a modicum of expression involved in the conduct of appellee's dancers. But that modicum is one of constitutional significance . . .' 522 F.2d at 1048.

While the Supreme Court of the United States has not yet passed on the ordinance in 'Salem II,' it has had before it in 'Salem I' an ordinance identical in all respects except that by its terms, in addition to bars, restaurants and similar establishments, it applied to 'any public place.' In 'Salem I' the Supreme Court affirmed the granting of the preliminary injunction against enforcement of the ordinance holding that there had been, at least for purposes of the preliminary injunction, 'a sufficient showing of the likelihood of ultimate success on the merits.' 95 S.Ct. 2561, 2568.

Of equal effect in this case is the 2nd Circuit's holding that the 'Salem II' ordinance offends the constitution in that it is discriminatory and, thus, deprives plaintiff of its rights under the equal protection clause of the 14th Amendment. The Second Circuit in 'Salem II' held: 'We agree with Judge Bartels, however, that the modicum of expression involved in topless dancing puts this case into the other 'tier' of equal protection, where 'strict scrutiny' of the ordinance must be made. Since the Town has shown no compelling justification for differentiating between one interest in expression (topless dancing in a bar) and another (topless dancing in the 'legitimate' theater), the burden on the interest of expression implicit in the commercial distinctions in this ordinance makes the Town's scheme constitutionally impermissible.' 522 F.2d at 1049.

Defendants' reliance on Crownover v. Musick, 9 Cal.3d 405, 107 Cal.Rptr. 681, 509 P.2d 497 (1973) cert. denied 415 U.S. 931, 94 S.Ct. 1443, 39 L.Ed.2d 489, Brandon Shores, Inc. v. Village of Greenwood Lake, 68 Misc.2d 343, 325 N.Y.S.2d 957 (Sup.Ct., Orange Cty. 1971) and People v. Moreira, 70 Misc.2d 68, 333 N.Y.S.2d 215 (Dist.Ct., Suffolk Cty. 1972) is misplaced. The Crownover reasoning was explicitly rejected in 'Salem II' by Judge Bartels as being contrary to the Second Circuit's holding that dancing, even nude dancing, may fall within the purview of 1st Amendment protection. 381 F.Supp. 859, 862. In neither Moreira nor Brandon Shores is the 1st Amendment issue discussed in depth in the light of then applicable Supreme Court decisions. Both cases predate all of the 'Salem I' and 'Salem II' decisions as well as current pronouncements by the Supreme Court on 1st Amendment protection in Southeastern Promotions, Ltd. v. Conrad, supra, concerning the musical 'Hair', and Erznoznik v. City of Jacksonville, supra, relating to an ordinance prohibiting the showing of nude scenes visible from the street by outdoor drive-in theatres. Moreover, in 'Salem I' Judge Bartels pointedly disapproved of the Brandon Shores rationale. 364 F.Supp. 478, 482.

Nor is the Supreme Court's holding in California v. LaRue, supra, helpful to defendants, since the Van Buren ordinance does not purport to regulate the places...