Time Square Books, Inc. v. City of Rochester

• Citation: 223 A.D.2d 270,645 N.Y.S.2d 951
• Parties: TIME SQUARE BOOKS, INC., d/b/a Time Square Books, et al., Appellants, v. CITY OF ROCHESTER and William A. Johnson, Jr., as Mayor of City of Rochester, Respondents.
• Decision Date: 12 July 1996
• Court: New York Supreme Court Appellate Division

Page 951

645 N.Y.S.2d 951

223 A.D.2d 270

TIME SQUARE BOOKS, INC., d/b/a Time Square Books, et al., Appellants, v. CITY OF ROCHESTER and William A. Johnson, Jr., as Mayor of

City of Rochester, Respondents.

Supreme Court, Appellate Division,

Fourth Department.

July 12, 1996.

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria by Paul Cambria, Jr., Buffalo, for appellants.

Linda A. Kingsley, Corp. Counsel by Jeffrey Eichner, Rochester, for respondents.

Before GREEN, J.P., and LAWTON, FALLON, DOERR and BOEHM, JJ.

GREEN, Justice Presiding.

Defendant City of Rochester (City) amended its Municipal Code to regulate public entertainment establishments providing booths for the private viewing of motion pictures or "adult entertainment." ¹ Effective February 1, 1996, the ordinance provides:

"No person shall own, operate, manage or control or cause or permit the establishment, operation or use of a booth provided or used for the private viewing of motion pictures or adult entertainment unless the booth is physically constructed and arranged in such a manner that the entire interior portion of the booth is clearly visible to persons in an adjacent public area of the premises.

Visibility into such booths shall not be blocked or obscured by doors, curtains, partitions, drapes or any other obstruction whatsoever. * * * All such booths shall be separated from adjacent booths and any nonpublic areas by a wall. All such walls shall be solid and without any openings, [and] shall extend from the floor to a height of not less than six (6) feet * * * Windows may be provided in the walls for viewing live entertainment as long as the windows are solid and cannot be opened to allow for contact between the patron and entertainer.

* * * * * *

"No person shall allow or permit the use of a booth provided or used for the private viewing of motion pictures or adult entertainment to be occupied by more than one (1) person at a time, nor shall more than one (1) person occupy any such booth at a time" (Municipal Code of City of Rochester § 29-15[I][2], [3].

Those amendments were prompted by the City's concern with the spread of AIDS and other sexually transmitted diseases. The regulations governing the operation and use of booths were enacted by the City Council "to assure that entertainment centers are not used in a manner that can facilitate the transmission of such diseases through high-risk sexual contact with multiple partners" (Municipal Code of City of Rochester § 29-15[I][1]. The Council found that closed booths are used by patrons of adult entertainment centers for sexual activity and that the presence of doors or other obstructions on those booths encourages such activity and thereby facilitates the transmission of disease (Municipal Code of City of Rochester § 29-15[I][1][b], [c].

Plaintiffs, owners of retail stores selling books and video tapes, previously offered enclosed booths for the private screening of sexually explicit motion pictures. Prior to the effective date of the ordinance, plaintiffs commenced the instant action, challenging that part of the amended ordinance requiring open booths. Plaintiffs seek judgment declaring that the open booth requirement violates the free speech guarantees of the State and Federal Constitutions. Plaintiffs also seek judgment permanently enjoining the City from enforcing that portion of the ordinance. Plaintiffs moved for a preliminary injunction against the enforcement of the open booth requirement during the pendency of the action. Supreme Court denied plaintiffs' motion and this appeal ensued.

CPLR 6301 authorizes a preliminary injunction to be granted in any action where a permanent injunction is sought. To be entitled to a preliminary injunction, plaintiffs were required to demonstrate (1) the likelihood of ultimate success on the merits; (2) irreparable injury if the preliminary injunction is not granted; and (3) a balancing of the equities in their favor (see, Niagara Recycling v. Town of Niagara, 83 A.D.2d 316, 324, 443 N.Y.S.2d 939; Gambar Enters. v. Kelly Servs., 69 A.D.2d 297, 306, 418 N.Y.S.2d 818). In denying plaintiffs' motion for a preliminary injunction, the court determined that plaintiffs failed to establish a likelihood of success on the merits of their constitutional challenges to the ordinances. From that determination, the conclusion followed that plaintiffs also failed to demonstrate irreparable injury or a balancing of the equities in their favor.

In our view, plaintiffs made a sufficient showing to warrant preliminary injunctive relief. Our analysis begins with the premise that the sexually explicit but nonobscene entertainment displayed in booths at plaintiffs' establishments is a protected form of expression under the First Amendment of the Federal Constitution (see, Barnes v. Glen Theatre, 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504; Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671; City of New York v. S & H Book Shop, 41 A.D.2d 637, 341 N.Y.S.2d 292) and article I, section 8 of the State Constitution (see, Town of Islip v. Caviglia, 73 N.Y.2d 544, 556, 542 N.Y.S.2d 139, 540 N.E.2d 215; People ex rel. Arcara v. Cloud Books, 68 N.Y.2d 553, 557, 510 N.Y.S.2d 844, 503 N.E.2d 492; Bellanca v. New York State Liq. Auth., 54 N.Y.2d 228, 234-235, 445 N.Y.S.2d 87, 429 N.E.2d 765, cert. denied 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300). There is no dispute that the amended ordinance implicates both constitutional guarantees in its regulation of plaintiffs' presentation of that expression. Plaintiffs' ultimate success on the merits, however, clearly hinges upon the level of protection afforded by the State Constitution. Legislative enactments similar to the amended Rochester ordinance, requiring that booths used for viewing adult entertainment be open, have thus far withstood every challenge made under the Federal Constitution (see, Matney v. County of Kenosha, 887 F.Supp. 1235 [E.D.Wis.], affd. 86 F.3d 692 [7th Cir.]; Spokane Arcade v. City of Spokane, 75 F.3d 663 [9th Cir.]; TK'S Video v. Denton County, 24 F.3d 705 [5th Cir.]; Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123 [3rd Cir.]; Bamon Corp. v. City of Dayton, 923 F.2d 470 [6th Cir.]; Postscript Enters. v. City of Bridgeton, 905 F.2d 223 [8th Cir.]; Singer v. Town of East Hartford, 901 F.2d 297 [2nd Cir.]; Doe v. City of Minneapolis, 898 F.2d 612 [8th Cir.]; Berg v. Health & Hosp. Corp., 865 F.2d 797 [7th Cir.]; Wall Distribs. v. City of Newport News, 782 F.2d 1165 [4th Cir.]; Ellwest Stereo Theatres v. Wenner, 681 F.2d 1243 [9th Cir.]; Libra Books v. City of Milwaukee, 818 F.Supp. 263 [E.D.Wis.]; Movie & Video World v. Board of County Commrs., 723 F.Supp. 695 [S.D.Fla.]; Ellwest Stereo Theater v. Boner, 718 F.Supp. 1553 [M.D.Tenn.]; Suburban Video v. City of Delafield, 694 F.Supp. 585 [E.D.Wis.]; Broadway Books v. Roberts, 642 F.Supp. 486 [E.D.Tenn.]; see also, Deluxe Theater & Bookstore v. City of San Diego, 175 Cal.App.3d 980, 221 Cal.Rptr. 100; County of Sacramento v. Superior Ct., 137 Cal.App.3d 448, 187 Cal.Rptr. 154; DeMott v. Board of Police Commrs., 122 Cal.App.3d 296, 175 Cal.Rptr. 879; EWAP, Inc. v. City of Los Angeles, 97 Cal.App.3d 179, 158 Cal.Rptr. 579; City of Colorado Springs v. 2354 Inc., 896 P.2d 272 [Colo.]; City of Ramsey v. Amusement Ctr., 498 N.W.2d 25 [Minn.App.]; City of Lincoln v. ABC Books, 238 Neb. 378, 470 N.W.2d 760; City of Cleveland v. Fisher, 62 Ohio Misc.2d 792, 611 N.E.2d 1016; Commonwealth ex rel. Preate v. Danny's New Adam & Eve Bookstore, 155 Pa.Commw. [223 A.D.2d 274] 281, 625 A.2d 119; Martinez v. State of Texas, 744 S.W.2d 224 [Tex.App.]; Adult Entertainment Ctr. v. Pierce County, 57 Wash.App. 435, 788 P.2d 1102, review denied 115 Wash.2d 1006, 796 P.2d 725; City News and Novelty v. City of Waukesha, 170 Wis.2d 14, 487 N.W.2d 316, review denied 491 N.W.2d 768).

Nevertheless, the courts of this State have emphasized that the Federal Constitution fixes only minimum standards and that "matters of free expression in books, movies and the arts generally, are particularly suited to resolution as a matter of State common law and State constitutional law" (Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 248, 566 N.Y.S.2d 906, 567 N.E.2d 1270, cert. denied 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 713; see, O'Neill v. Oakgrove Constr., 71 N.Y.2d 521, 531, 528 N.Y.S.2d 1, 523 N.E.2d 277 [Kaye, J., concurring], mot to amend remittitur denied 72 N.Y.2d 910, 532 N.Y.S.2d 758, 528 N.E.2d 1231; People ex rel. Arcara v. Cloud Books, supra, at 557-558, 510 N.Y.S.2d 844, 503 N.E.2d 492).

"It is often forgotten that diversity is the essence of federalism and that the Federal Constitution only guarantees minimum protections, leaving to the States the task of affording additional or greater rights under their Constitutions, tailored to the special needs and traditions of the various States (People v. Adams, 53 N.Y.2d 241, 250 [440 N.Y.S.2d 902, 423 N.E.2d 379]). There is probably no area in which State attitudes are more diverse, and thus where independent State constitutional rights serve their intended purposes, than in the area dealing with freedom of expression (e.g., Miller v. California, 413 U.S. 15 [93 S.Ct. 2607, 37 L.Ed.2d 419])" (Matter of Beach v. Shanley, 62 N.Y.2d 241, 255, 476 N.Y.S.2d 765, 465 N.E.2d 304 [Wachtler, J., concurring].

Historically, New York has assumed a preeminent position in the Federal system through its tradition of providing "a hospitable climate for the free exchange of ideas" (Immuno AG. v. Moor-Jankowski, supra, at 249, 566 N.Y.S.2d 906, 567 N.E.2d 1270). That tradition of protecting free expression includes "tolerance of the unconventional and of what may appear bizarre or even offensive" (People v. Scott, 79 N.Y.2d 474, 488, 583 N.Y.S.2d 920, 593 N.E.2d 1328). Indeed, "New York is a State where freedom of expression and experimentation has not only been tolerated,...