Muchmore's Cafe, LLC v. City of N.Y., 14-CV-5668 (RRM) (RER)

• Decision Date: 29 September 2016
• Docket Number: 14-CV-5668 (RRM) (RER)
• Parties: MUCHMORE'S CAFE, LLC, Plaintiff, v. THE CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Eastern District of New York

MUCHMORE'S CAFE, LLC, Plaintiff, v. THE CITY OF NEW YORK, Defendant.

14-CV-5668 (RRM) (RER)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 29, 2016

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, United States District Judge.

Plaintiff Muchmore's Cafe, LLC ("Muchmore's") brings this action against the City of New York ("the City"), challenging the constitutionality of the New York City Cabaret Law, N.Y.C. Admin. Code 20-359, et seq. (the "Cabaret Law") under the First and Fourteenth Amendments to the United States Constitution. (Compl. (Doc. No. 1); Am. Compl. (Doc. No. 4).) Under the Cabaret Law, the City requires a license for dancing in bars and restaurants, as well as, subject to certain exceptions, any other room, space, or place in the City that is open to the public where dancing occurs. Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("Rule") 12(c). (Pl.'s Mot. J. Pleadings (Doc. No. 14); Def.'s Cross Mot. J. Pleadings (Doc. No. 18).) For the reasons discussed below, the cross-motions are denied, with the exception of the City's motion to dismiss Muchmore's substantive due process claim, which is granted.

BACKGROUND

Muchmore's is a cafe and bar located in Williamsburg, Brooklyn that hosts many types of live entertainment, including live music, stand-up comedy, theater, art openings, debates, and lectures, in addition to serving food and drinks. (Am. Compl. at ¶¶ 42-43.) In 2013, Muchmore's received a citation for violating the Cabaret Law for alleged unlawful dancing on its premises. (Id. at ¶ 45.) Although the citation was dismissed due to a defect on the face of the summons, "it has caused Muchmore's to experience reasonable concern that it could be subject to penalties under the Cabaret Law in the future, even if it takes reasonable measures to avoid dancing on the part of its customers." (Id.)

I. The Cabaret Law

The Cabaret Law provides in part:

It shall be unlawful for any person to conduct, maintain or operate, or engage in the business of conducting, maintaining or operating, a public dance hall, cabaret or catering establishment unless the premises wherein the same is conducted, maintained or operated are licensed in the manner prescribed herein.

N.Y.C. Admin. Code § 20-360.

"Cabaret" is defined as:

Any room, place or space in the city in which any musical entertainment, singing, dancing or other form of amusement is permitted in connection with the restaurant business or the business of directly or indirectly selling to the public food or drink, except eating or drinking places, which provide incidental musical entertainment, without dancing, either by mechanical devices, or by not more than three persons.

Id. at § 20-359.

The Cabaret Law also applies to "public dance halls," defined as:

Any room, place or space in the city in which dancing is carried on and to which the public may gain admission, either with or without the payment of a fee.

Id. In addition, the Cabaret Law applies to a wide variety of other City establishments.¹

The Cabaret Law was passed in 1926 during the Harlem Renaissance and prohibition,when jazz in the City was predominantly played at speakeasies controlled by racketeers. Paul Chevigny, Gigs: Jazz and the Cabaret Laws in New York City 54-57 (1991); see also New York's Ill-Tuned Cabaret Law, N.Y. TIMES, June 26, 1986 ("Cabaret licenses were first required in 1926 to control 'wild' behavior at Prohibition speakeasies."). In recommending approval of the Cabaret Law in 1926, the Committee on Local Laws explained:

These night clubs are simply dance halls, where food is served at exorbitant prices to the tune of jazz and tabloid entertainments. A very frank opposition was voiced by one of the licensees, on the ground that when strangers came to New York City they wanted to "run wild." Well, there has been altogether too much running "wild" in some of these night clubs and, in the judgment of your Committee, the "wild" stranger and the foolish native should have the check-rein applied a little bit. . . . Your Committee believes that these "wild" people should not be tumbling out of these resorts at six or seven o'clock in the morning to the scandal and annoyance of decent residents on their way to daily employment.

Recommendation No. 10, Proceedings of Board of Alderman and Municipal Assembly of City of New York (Dec. 7, 1926), at 572.

The Cabaret Law has remained in force for nearly nine decades in largely the same form. One major change to the statute was prompted by judicial action. Until the 1980's, the Cabaret Law limited the number of musicians that could play in a Cabaret to three and specified the types of instruments that could be played in a Cabaret. These provisions were held unconstitutional in 1986 and 1988, although the language relating to the three-musician rule remains in the Law to this day. See Chiasson v. New York City Dep't of Consumer Affairs (Chiasson I), 132 Misc. 2d 640 (N.Y. Sup. Ct. 1986) (striking down the Cabaret Law's prohibition on percussion, wind and brass instruments being used to play incidental music in unlicensed clubs); Chiasson v. New York City Dep't of Consumer Affairs (Chiasson II), 138 Misc. 2d 394 (N.Y. Sup. Ct. 1988) (striking down the Cabaret Law's provision that limits the number of musicians to three).

Pursuant to zoning regulations, only establishments within certain zones of the City maybe issued licenses pursuant to the Cabaret Law. "Eating or drinking establishments . . . of any capacity with dancing" are categorized as "Use Group 12." N.Y.C. Zoning Resolution § 32-21. This group consists primarily of "fairly large entertainment facilities that: (1) have a wide service area and generate considerable pedestrian, automotive or truck traffic; and (2) are, therefore, appropriate only in secondary, major or central commercial areas." Id.

Applying for a license pursuant to the Cabaret Law is an extensive process. With limited exception, all applicants for licenses must be fingerprinted. N.Y.C. Admin. Code § 20-360. Applicants must also make numerous disclosures regarding, inter alia, ownership of the establishment, prior convictions for certain offenses, financial records, and compliance with health, fire, building, zoning, water, gas, and electricity safety requirements and standards. Id. at § 20-361. There is also a licensing fee with the amount to be paid determined by the size of the establishment. Id. at § 20-363.

Licensed cabarets and dance halls must comply with numerous security, surveillance, operational, and record keeping requirements. Unless the establishment operates primarily as a restaurant, all entrances and exits used by patrons must be equipped with digital video surveillance cameras and such cameras must comply with specific statutory provisions, including making surveillance recordings available "to the police department and other government agencies, acting in furtherance of a criminal investigation or a civil or administrative law enforcement purpose." Id. at § 20-360.2. In addition, licensed establishments are subject to periodic inspections to ensure compliance. Id. Premises licensed under the Cabaret Law must remain closed between 4 a.m. and 8 a.m., unless the establishment is frequented by minors, in which case it must be closed between 1 a.m. and 8 a.m. Id. at § 20-367. Cabarets and public dance halls are required to provide itemized lists of prices for food and drink on a printed menuor on conspicuous signs. Id. at § 20-368. Those establishments that employ security guards must have those guards' registrations available during hours of operation, the guards on duty must carry their registrations on their persons, and the establishments must maintain a roster of the guards working at any given time. Id. at § 20-360.1.

According to the City, at the time that it answered the Amended Complaint, "[t]here [were] currently 118 cabaret licenses issued by the Department of Consumer Affairs of the City of New York ('DCA') and an additional 15 cabaret license renewal applications pending, as well as approximately 25,100 food service establishment licenses issued by the Department of Health and Mental Hygiene of the City of New York, many of which have not sought a DCA cabaret license." (Answer Am. Compl. (Doc. No. 8) at ¶ 24.)

II. Muchmore's Claims

Muchmore's principally argues that the Cabaret Law is unconstitutional as it unduly abridges freedom of speech and freedom of assembly, is vague, and denies performers, prospective performers, and patrons of Muchmore's due process and equal protection under the law. (Am. Compl. at ¶¶ 53, 56.) Muchmore's claims that the sweep of the Law is so broad that it encompasses a wide range of conduct that is protected under the First Amendment. Principal among those activities that Muchmore's claims are protected are "dance performance" and "social dancing." Although the parties largely focus on dancing in their briefing, Muchmore's also points to other language in the statute that amplifies the Law's broad sweep, including the prohibition on "other form[s] of amusement," and the statute's applicability to covered establishments located in any "room, place or space" in the City. Muchmore's "requests that this Court issue an Order declaring the New York City Cabaret Law unconstitutional on its face and/or as applied, and to the extent it is found to be unconstitutional, enjoining its enforcement."(Id. at 13 (ECF pagination).)

Muchmore's also claims that the Cabaret Law's prohibition on dancing effectively bars its right to play, and its patrons' right to hear, certain types of music in violation of the First Amendment. In particular, Muchmore's "avoids hosting dance-oriented genres of music, such as hip hop, salsa or merengue, and instead limits musical entertainment to folk music, rock music, experimental electronic music, jazz and other music forms that are not conducive to dancing" and also...