Nakatomi Inv., Inc. v. City of Schenectady, 96-CV-1226.

• Decision Date: 07 January 1997
• Docket Number: No. 96-CV-1226.,96-CV-1226.
• Citation: 949 F.Supp. 988
• Parties: NAKATOMI INVESTMENTS, INC., and AEB Enterprises, Inc., Plaintiffs, v. CITY OF SCHENECTADY; Albert Jurczynski, Mayor of Schenectady; James Kalohn, Zoning Officer; James Pone, Building Inspector; and Michael Moffitt and Gregory T. Kaczmarek, Police Chiefs, Defendants.
• Court: U.S. District Court — Northern District of New York

949 F.Supp. 988

NAKATOMI INVESTMENTS, INC., and AEB Enterprises, Inc., Plaintiffs, v. CITY OF SCHENECTADY; Albert Jurczynski, Mayor of Schenectady; James Kalohn, Zoning Officer; James Pone, Building Inspector; and Michael Moffitt and Gregory T. Kaczmarek, Police Chiefs, Defendants.

No. 96-CV-1226.

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

January 7, 1997.

Office of David Brickman (David Brickman, of counsel), Albany, for Plaintiffs.

Corporation Counsel for the City of Schenectady (L. John Van Norden, of counsel), Schenectady, for Defendants.

MEMORANDUM-DECISION & ORDER

McAVOY, Chief Judge.

I. BACKGROUND

This is a case about non-obscene nude dancing. At issue is Plaintiffs Nakatomi Investments and AEB Enterprises' desire to operate clubs, within the City of Schenectady, that feature nude and topless dancers.

The City of Schenectady ("City") has two local laws that govern Plaintiffs' business activities. The City's Public Amusement Law regulates specific entertainment businesses and prohibits any person from exposing certain portions of the human body. See Schenectady City Code § 128-8.¹ In addition, the City Zoning Law requires that all "adult entertainment businesses" must be established, subject to the issuance of a Special Permit, solely within two designated zoning districts — districts G and H — as defined by the City Zoning Law. See Schenectady City Code § 264-91.

In early 1996, the City began an investigation into several business that were believed to be operating in violation of the City Zoning and Public Amusement laws. As a result of this investigation, various principals and employees of the Plaintiffs were arrested and charged with violating Sections 128-8 and 264-91 of the City Code.

On July 31, 1996, Plaintiffs brought this action under 42 U.S.C. §§ 1983 and 1985, claiming, inter alia, that the City's Zoning and Amusement laws violated their rights under the First and Fourteenth Amendments to the United States Constitution. Presently before the Court is Plaintiffs' Motion for a Preliminary Injunction seeking to enjoin Defendants from enforcing the above referenced ordinances during the pendency of this case, as well as Defendants' Cross-Motion for Summary Judgment.

II. DISCUSSION

A. Preliminary Injunction Standard

In this Circuit, the standard for obtaining a preliminary injunction is well established. In order to obtain a preliminary injunction, the movant must make an affirmative showing of: (1) irreparable harm; and either (2) likelihood of success on the merits; or (3) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in favor of the movant. See, e.g., Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir.1992); Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). The Second Circuit, however, has also held that "where the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the district court should not apply the less rigorous fair-ground-for-litigation standard and should not grant the injunction unless the moving party establishes, along with irreparable injury, a likelihood that he will succeed on the merits of his claim." Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989); see also Union Carbide Agricultural Products Co. v. Costle, 632 F.2d 1014, 1018 (2d Cir. 1980).

Courts in this circuit have repeatedly stated that "`[p]erhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.'" Borey v. National Union Fire Ins. Co., 934 F.2d 30, 34 (2d Cir.1991) (quoting Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.1983)). Moreover, the party seeking the preliminary injunction must demonstrate that "it is likely to suffer irreparable harm if equitable relief is denied." Borey, 934 F.2d at 34 (quoting JSG Trading Corp. v. Tray-Wrap Inc., 917 F.2d 75, 79 (2d Cir.1990)) (emphasis in original). Hence, a mere possibility of irreparable harm is insufficient to justify the drastic remedy of a preliminary injunction. Borey, 934 F.2d at 34. It must be noted that "irreparable injury means injury for which a monetary award cannot be adequate compensation." Jackson Dairy, 596 F.2d at 72 (citing Studebaker Corp. v. Gittlin, 360 F.2d 692, 698 (2d Cir.1966) and Foundry Srvs., Inc. v. Beneflux Corp., 206 F.2d 214, 216 (2d Cir.1953)).

Turning our attention to the first prong of this test, it is clear that if the City's enforcement will deprive Plaintiffs of their First Amendment right of expression, this constitutes per se irreparable injury to Plaintiffs. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In Elrod v. Burns, the Supreme Court instructed that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." 427 U.S. at 373, 96 S.Ct. at 2690; see also Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir. 1991) (stating that even a temporary abridgment of the First Amendment right to free expression constitutes irreparable injury).

Accordingly, inasmuch as the City's enforcement of its ordinances against Plaintiffs for even one day would result in a loss of First Amendment rights, that enforcement constitutes irreparable injury to these plaintiffs. Thus, Plaintiffs have satisfied the first of the two elements required for a preliminary injunction.

Having found that Plaintiffs will suffer irreparable harm in the absence of injunctive relief, the Court must determine whether Plaintiffs are likely to succeed on the merits of their constitutional challenge. Contrary to the position asserted by the City, the burden rests squarely on the City to justify its infringement of Plaintiffs' rights. Indeed, it has long been axiomatic that once a party shows that a regulation deprives them of a protected First Amendment interest, the burden shifts to the Government to justify the infringement. See, e.g., Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 803 n. 22, 104 S.Ct. 2118, 2127 n. 22, 80 L.Ed.2d 772 (1984); City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496, 106 S.Ct. 2034, 2038-39, 90 L.Ed.2d 480 (1986). The Supreme Court reiterated this burden shifting in Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981). In Schad, after reaffirming that nude dancing is expressive conduct within the scope of the First Amendment, the Supreme Court shifted the burden to the government to justify "its substantial restriction of protected activity." 452 U.S. at 66, 72, 101 S.Ct. at 2181, 2184. Ultimately, the Schad Court invalidated the anti-nudity statute because the government could not justify the infringement. 452 U.S. at 72, 101 S.Ct. at 2184-85; cf. Travis v. Owego-Apalachin School Dist., 927 F.2d 688, 694 (2d Cir.1991) (invalidating statute because defendant school district failed to justify its restriction on speech and religion).

Here, it is not unreasonable to expect that a City purporting to infringe upon a First Amendment right be prepared to defend that infringement; if the City cannot adequately justify its encroachment, then the restriction is rightfully unconstitutional. See O'Malley v. City of Syracuse, 813 F.Supp. 133, 141 (N.D.N.Y.1993); cf. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843-44, 98 S.Ct. 1535, 1543-44, 56 L.Ed.2d 1 (1978) (initial burden is on government to justify restriction; defendant then has opportunity to challenge the government's proffered justification).

Here, Plaintiffs are challenging the constitutionality of two City ordinances. The Court will review these challenges seriatim.

B. Likelihood of Success on the Merits

In a republic founded on a democratic ideal, there is perhaps no greater safeguard of freedom than the unfettered exchange of ideas. The First Amendment protects the expression of ideas, especially unpopular ideas. See, e.g., Texas v. Johnson, 491 U.S. 397, 404, 414, 109 S.Ct. 2533, 2539-40, 2545, 105 L.Ed.2d 342 (1989); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55-56, 108 S.Ct. 876, 881-82, 99 L.Ed.2d 41 (1988); Federal Communications Comm'n v. Pacifica Foundation, 438 U.S. 726, 745-46, 98 S.Ct. 3026 3038-39, 57 L.Ed.2d 1073 (1978). "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...." Johnson, 491 U.S. at 414, 109 S.Ct. at 2545 (citations omitted); see also Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365-66, 22 L.Ed.2d 572 (1969). The fact that the expression is not in the form of verbal communication is irrelevant. It is now settled, for example, that performances in theatres are entitled to First Amendment protection even though they do not square with the traditional definition of speech because such performances "may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression." California v. LaRue, 409 U.S. 109, 129, 93 S.Ct. 390, 403, 34 L.Ed.2d 342 (1972) (Marshall, J., dissenting); see also Johnson, 491 U.S. at 404-06, 109 S.Ct. at 2539-41 (First Amendment protection is not limited to the spoken word but extends to the expression of ideas).

Not surprisingly, an individual's interest in freedom of expression sometimes clashes with the government's interest in societal order so directly that the two positions are irreconcilable. In these cases, one interest must give way to the other. See, e.g., International Soc'y for...