Toback v. City of Long Beach

• Decision Date: 03 October 1996
• Docket Number: No. 96-CV-3322 (JS).,96-CV-3322 (JS).
• Citation: 948 F.Supp. 167
• Parties: Jack S. TOBACK, Plaintiff, v. CITY OF LONG BEACH, Defendant.
• Court: U.S. District Court — Eastern District of New York

948 F.Supp. 167

Jack S. TOBACK, Plaintiff, v. CITY OF LONG BEACH, Defendant.

No. 96-CV-3322 (JS).

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

October 3, 1996.

Kevin J. McGill, Clifton Budd & DeMaria, New York City, for Plaintiff.

Corey E. Klein, Corporation Counsel, Long Beach, NY, for Defendant.

ORDER

SEYBERT, District Judge:

Upon reviewing the Report and Recommendation of Magistrate Judge Michael L. Orenstein made on August 8, 1996, plaintiff's objections to the Report and Recommendation and defendant's opposition to the objections, and after hearing the parties oral arguments on October 3, 1996, the Court adopts the Report and Recommendation in its entirety and dismisses the case.

SO ORDERED.

REPORT AND RECOMMENDATION

ORENSTEIN, United States Magistrate Judge:

Plaintiff commenced this action pursuant to 42 U.S.C. § 1983, seeking, inter alia, to enjoin the City of Long Beach (hereinafter "City") from enforcing certain sections of its newly-revised noise ordinance. By Order dated July 12, 1996, District Judge Joanna Seybert directed the City to show cause before this Court why a preliminary injunction should not issue. After hearing oral argument on this matter and carefully considering the parties' submissions, the Court respectfully reports and recommends that the District Court deny the application for a preliminary injunction and abstain under the doctrine enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

BACKGROUND

Plaintiff is a religious proselytizer who conducts an outreach ministry during the summer months on the Long Beach boardwalk. His utilization of amplified sound in connection with his preaching of the Christian Gospel has generated much publicity in both Long Beach and the local media. See, e.g., Barbara Chai, Sound and Fury, Loud beach preacher attacked, arrested, Newsday, July 8, 1996; Evelyn Nieves, At Boardwalk, Battle Stations Over Decibels, N.Y.Times, Aug. 4, 1996, at 33.

This is the second action in which the present parties have appeared before this Court. On July 14, 1995, after a non-jury trial, this Court held that certain of the City's permit provisions and procedures set forth in both the noise code and park regulations sections of the Long Beach Code of Regulations, with which the City had required Plaintiff to comply in order to conduct his religious activities on the boardwalk, were facially invalid, as well as unconstitutionally applied to him. See Opinions, Findings of Fact and Conclusions of Law, dated July 15, 1995, Orenstein, M.J., attached as Toback Aff.Ex. 1. In reaching its decision, the Court found the Long Beach boardwalk to be a traditional public forum. Id. at 9. Plaintiff, however, withdrew his challenge to those sections of the noise code that provided certain maximum sound levels. Id. at 6 n. 2.

On May 21, 1996, the City amended Chapter 16 of the noise code. Eaton Aff. ¶ 5; "Chapter 16 — Noise," attached as Eaton Aff. Ex. B; Toback Aff. Ex. 2. Newly-enacted Section 16-7 provides that "[n]o person shall cause, ... or permit the operation of any source of sound ... in such a manner as to create a sound level that exceeds the particular continuous sound level limits set forth in table 1." Table 1 fixes a maximum permissible continuous sound level of 65 decibels ("dBA") at Ocean Beach Park, which encompasses the Long Beach boardwalk.

On June 9, 1996, the City issued Plaintiff two summonses for violations of Section 16 of the Long Beach noise ordinance; the City issued Plaintiff a third summons on June 16, 1996. On June 19, 1996, Plaintiff appeared in Long Beach City Court to answer the summonses. At that time, the prosecution superseded the summonses with informations; the Court adjourned Plaintiff's arraignment for one week to enable Plaintiff to obtain counsel. Def.'s Mem. of Law in Support of Younger Abstention Ex. 1. On June 26, 1996, Plaintiff appeared with counsel for arraignment on the three informations. Plaintiff pleaded not guilty and the court, at counsel's request, granted Plaintiff forty-five days for the purpose of serving motions. The matter was adjourned to August 13, 1996.

On July 4, 1996, Plaintiff returned to the Long Beach boardwalk with a sound amplification system. The City served him with a summons for exceeding 65 dBA. On July 5, 1996, the City issued five summonses to Plaintiff for similar conduct. The sound was measured at various places as it projected from the boardwalk and at different times from 12:50 p.m. to 3:03 p.m. On July 6, 1996, Plaintiff again returned to the boardwalk with a sound amplification system. This time, Plaintiff was arrested and charged with disorderly conduct, pursuant to N.Y.Penal Law Section 240.20, subd. 2.¹ The following day, the City served Plaintiff with another two summonses for violation of Section 16 of the Long Beach noise ordinance, and again charged him with disorderly conduct under the New York State Penal Law.

Meanwhile, on July 5, 1996, Plaintiff filed his complaint in this action, challenging the constitutionality of that portion of the noise code which prohibits excessive noise, including the 65 dBA sound level limit set for Ocean Beach Park. He asserts that the noise code is unconstitutional on its face and as applied to him. Plaintiff seeks, inter alia, an injunction permanently enjoining the City from enforcing the noise ordinance, a judgment declaring the challenged sections — Sections 16-6K, 16-7 and 16-11I — to be unconstitutional under the First and Fourteenth Amendments to the United States Constitution, and nominal damages in the amount of $10.00.

The City opposes the application for a preliminary injunction and urges this court to abstain from hearing the instant case.

DISCUSSION

I. Requirements for a Younger Abstention

In Younger v. Harris, 401 U.S. 37, 44, 53-54, 91 S.Ct. 746, 754-55, 27 L.Ed.2d 669 (1971), the United States Supreme Court held that, absent extraordinary circumstances, principles of federalism and judicial comity require federal district courts to abstain from enjoining pending state criminal proceedings. See also Rizzo v. Goode, 423 U.S. 362, 379-80, 96 S.Ct. 598, 608, 46 L.Ed.2d 561 (1976) ("`[A] major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this court has recognized....'" (quoting O'Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 679, 38 L.Ed.2d 674 (1974))). In addition to preventing disruption of state court proceedings, the Younger doctrine is designed to protect the vital role of the state courts in the enforcement of federal law. In a companion case to Younger, the High Court extended the abstention principle to actions seeking declaratory relief. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). "Younger abstention is appropriate when: 1) there is an ongoing state proceeding; 2) an important state interest is implicated; and 3) the plaintiff has an avenue open for review of constitutional claims in the state court." Hansel v. Town Court for Town of Springfield, New York, 56 F.3d 391, 393 (2d Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 572, 133 L.Ed.2d 496 (1995); see Doe v. Connecticut Dept. Of Health Servs., 75 F.3d 81, 85 (2d Cir.1996).

The three requirements of a Younger abstention set forth in Hansel clearly are met in the instant case. First, Plaintiff's criminal prosecution was proceeding when he commenced this action. As a result of his alleged activities on the Long Beach boardwalk on June 9 and June 16, 1996, Plaintiff was arraigned on three charges; informations were filed and he pleaded not guilty. Cf. Agriesti v. MGM Grand Hotels, Inc., 53 F.3d 1000, 1001-02 (9th Cir.1995) (finding no ongoing judicial proceeding where district attorney's office never filed citations in court; under Nevada Law, "a misdemeanor complaint issues when the misdemeanor citation is filed with a Court of competent jurisdiction").

As to the second requirement, it is beyond cavil that the City has an important interest at stake simply by virtue of the ongoing criminal prosecution. See Hansel, 56 F.3d at 393; Davis v. Lansing, 851 F.2d 72, 76 (2d Cir.1988) ("There is no question that [an] ongoing prosecution implicates important state interests: Younger itself settled the importance of the state's interest in criminal proceedings.")

Likewise, the third requirement of the Younger abstention rule also is met. Initially, the Court points out that "a federal court should assume that state procedures will afford an adequate remedy [to possible federal constitutional violations], in the absence of unambiguous authority to the contrary." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15, 107 S.Ct. 1519, 1528, 95 L.Ed.2d 1 (1987). Here, however, the Court need not employ such a presumption because Plaintiff has ample opportunity for review of his federal constitutional claims in the Long Beach City Court, a New York State court of record. See N.Y.Jud.Law § 2 (McKinney 1983 and Supp.1996). Even prior to becoming a New York State court of record, the Long Beach City Court passed upon constitutional claims in criminal proceedings. See, e.g., People v. Davis, 38 Misc.2d 771, 238 N.Y.S.2d 981 (Long Beach City Ct.1963) (dismissing information based upon defendant's claim that city ordinance prohibiting hand billing unconstitutionally interfered with his First Amendment rights). Moreover, Plaintiff is guaranteed the right to appeal in the event he is convicted. See N.Y.Crim.Proc.Law § 450.10 (McKinney 1994). In sum, Plaintiff will be able to raise all of his federal claims in the state court proceeding and may utilize state and federal appellate processes for judicial review, if convicted.

II. Exceptions to the Rule of Younger

The satisfaction of the three requirements necessary to invoke the rule of Younger does not end the Court's analysis, because Younger and its...