Plaza Health Clubs, Inc. v. City of New York
| Decision Date | 14 August 1980 |
| Citation | 76 A.D.2d 509,430 N.Y.S.2d 815 |
| Parties | PLAZA HEALTH CLUBS, INC., Plaintiff-Appellant, v. CITY OF NEW YORK, The Mayor of the City of New York, The City Planning Commission, The Board of Estimate of the City of New York, The Commissioner of Buildings of the City of New York, and The Department of Buildings of the City of New York, Defendants-Respondents. PHOENIX LEISURE, INC., Plaintiff-Appellant, v. CITY OF NEW YORK, The Mayor of the City of New York, The City Planning Commission, The Board of Estimate of the City of New York, The Commissioner of Buildings of the City of New York, and The Department of Buildings of the City of New York, Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
J. Jeffrey Weisenfeld, New York City, for plaintiff-appellant.
John W. Russell, of counsel, L. Kevin Sheridan, Asst. Corp. Counsel, with him on the brief; Allen G. Schwartz, Corp. Counsel, New York City, for defendants-respondents.
Before FEIN, J. P., and SANDLER, SULLIVAN, ROSS and CARRO, JJ.
FEIN, Justice Presiding.
Plaintiffs, respective operators of Manhattan premises known as "Tahitia" at 829 Third Avenue, and The Harem" at 835 Third Avenue, appeal from orders of Supreme Court, Special Term, which denied preliminary injunctive relief against enforcement of zoning resolution amendments prohibiting adult physical culture establishments, and which granted defendants' cross-motions to dismiss the complaints for failure to state a cause of action.
In its continuing battle to stamp out the urban blight wrought by prostitution and the pornography industry, the City of New York, through its Planning Commission and the Department of Buildings, has embarked upon a program aimed at closing down sex-oriented massage parlors. Interim amendments to the Zoning Resolution, adopted by the Board of Estimate in 1976, were relied upon in closing down a number of these establishments in Manhattan's midtown theater district, as well as the west side Clinton district, on the basis of nonconforming use. The procedure adopted in 1976 was to serve notice of a one-year amortization period on existing establishments charged with nonconforming uses. Premised upon admission of nonconforming use, the restraints withstood constitutional challenge. (Commissioner of Dept. of Bldgs. v. Bocchino, 59 A.D.2d 1069, 399 N.Y.S.2d 829 and Commissioner of Dept. of Bldgs. v. Carpenter, 61 A.D.2d 898, 402 N.Y.S.2d 701.)
Encouraged by the success of this effort, the Board of Estimate expanded the program in November 1978 by adopting permanent, uniform, city-wide zoning regulations proscribing adult physical culture establishments (APCEs), defined (with certain limited exceptions) as "any establishment, club or business by whatever name designated which offers or advertises or is equipped or arranged so as to provide as part of its services, massages, body rubs, alcohol rubs, baths or other similar treatment by members of the opposite sex." (Amended Zoning Resolution § 12-10.)
These actions were commenced in October 1979, seeking declaratory judgments that the zoning resolution was unconstitutional. The two establishments, with common ownership, are equipped with mirrored cubicles and advertise themselves as "leisure spas for men", offering the patron a choice of female companionship. Plaintiffs insist that they do not engage in forbidden activities, but rather are "subject to being defined as an adult physical culture establishment only because these premises are 'equipped or arranged' to provide 'as part of its services, massages, body rubs, alcohol rubs, baths or other similar treatment, by members of the opposite sex.' " (emphasis supplied)
A statute or ordinance proscribing designated activities must clearly define the activity so as to leave as little discretion as possible to the agency charged with its enforcement (People v. Illardo, 48 N.Y.2d 408, 423 N.Y.S.2d 470, 399 N.E.2d 59; People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625, 399 N.E.2d 513). Failure so to draft a law lays it open to constitutional attack for vagueness on the principle that it invites arbitrary or discriminatory enforcement. Here the zoning resolution proscribes operation of all premises "equipped or arranged" for cross-sexual physical services. What constitutes such equipment or arrangement is not clear. Without more specific details, the description of premises merely as "equipped or arranged" for cross-sexual activity could conceivably apply to a wide variety of otherwise legal business and residential premises. No presumption of prohibited activity arises from the mere presence of mirrored cubicles, pillow beds, sinks, jacuzzi bath, sauna and water-pik showers.
However the resolution does not rest the proscription on the mere presence of such equipment. It describes the prohibited use as follows:
"An 'adult physical culture establishment' is any establishment, club or business by whatever name designated which offers or advertises or is equipped or arranged so as to provide as part of its services, massages, body rubs, alcohol rubs, baths or other similar treatment, by members of the opposite sex." (Emphasis supplied)
It goes on to exclude a variety of establishments or uses, which may have such equipment but which are manifestly not engaged in the business of providing massages, etc., by persons of the opposite sex. The plain design and purpose of the resolution is to preclude offering, advertising and providing cross-sexual massages, body rubs, alcohol rubs or other similar treatment. So read, the resolution is facially constitutional.
(Wigginess Inc. v. Fruchtman, 482 F.Supp. 681, 687 (S.D.N.Y.), affd. w/o opn., --- F.2d ---- (2d Cir., No. 80-7116, Apr. 28, 1980).)
In this light our first inquiry is whether there is a justiciable controversy and whether plaintiffs have standing to request a preliminary injunction and a declaratory judgment declaring the resolution unconstitutional. Plaintiffs' complaints and affidavits sufficiently raise their contentions that they did not advertise, provide or offer forbidden services, but that they were still subject to the zoning restriction due to the potentially broad scope of the "equipped or arranged" language of the resolution. Plaintiffs insisted, on their submissions at Special Term and in their briefs and oral argument in this court that they do not advertise, offer or provide cross-sexual massages, or related services. We must take them at their word. Although not properly submitted for consideration on a CPLR 3211 motion, not being pleaded or otherwise submitted, it is now asserted by plaintiffs that they employ only licensed male masseurs, thus bringing themselves within the most recent amendment to the resolution, excluding from the proscription premises used or operated by licensed masseurs and massagers (Deans v. Minkin, New York County Index No. 16581/79). If so, plaintiffs would be operating a lawful establishment under the most recent exception to the APCE definition. There would be no justiciable controversy.
A declaratory judgment action to declare a statute or regulation or resolution unconstitutional lies where a plaintiff concedes his activity is proscribed by the statute, regulation or resolution as written or as it appears to be or is threatened to be interpreted and enforced (cf. DeVeau v. Braisted, 5 A.D.2d 603, 606-7, 174 N.Y.S.2d 596, affd. 5 N.Y.S.2d 236, 183 N.Y.S.2d 793, 157 N.E.2d 165, affd. 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 109). The rule is otherwise where plaintiff specifically denies his activity is with the proscribed parameters. (See Dun & Bradstreet Inc. v. City of New York, 276 N.Y. 198, 206, 11 N.E.2d 728; St. Aubin v. Biggane, 51 A.D.2d 1054, 381 N.Y.S.2d 533; Wein v. City of New York, 47 A.D.2d 367, 370-371, 366 N.Y.S.2d 885).
It appears, therefore, that plaintiffs lack the standing to raise the constitutional issue. In the affirmations in support of motions for declaratory and injunctive relief, plaintiffs' attorney stated that plaintiffs are not presently advertising or...
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