Town of Islip v. Caviglia

• Decision Date: 26 September 1988
• Parties: TOWN OF ISLIP, Respondent, v. Frank CAVIGLIA & Steven Weinkselbaum d/b/a Happy Hour Bookstore, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 783

532 N.Y.S.2d 783

141 A.D.2d 148

TOWN OF ISLIP, Respondent, v. Frank CAVIGLIA & Steven Weinkselbaum d/b/a Happy Hour Bookstore, Appellants.

Supreme Court, Appellate Division Second Department.

Sept. 26, 1988.

Bernard Fromartz, Brooklyn, for appellants.

Guy W. Germano, Town Atty., Islip (Michael J. Cahill and Doris E. Roth, of counsel), for respondent.

Before THOMPSON, J.P., and SPATT, SULLIVAN and HARWOOD, JJ.

SPATT, Justice.

The issue on this appeal is the constitutionality of an ordinance of the Town of Islip that relegates the location of an adult bookstore to the Town's Industrial I zoning district. Since we find that this ordinance is not aimed at the content of the books sold but is in the nature of a time, place and manner restriction, we hold that the ordinance is constitutionally permissible.

I

In 1978, the respondent Frank Caviglia (d/b/a Happy Hour Bookstore) opened an adult bookstore (hereinafter the bookstore) at 30 West Main Street, Bay Shore, in the Town of Islip in Suffolk County. Thereafter, the Town of Islip Community Development Agency condemned the building in which the bookstore was located. As a consequence, on June 12, 1980, the bookstore was moved across the street to its present location at 33 West Main Street. The latter parcel of real property is owned by the appellants Caviglia and Steven Weinkselbaum ¹. The bookstore was then and is now situated in an area zoned Business I as defined in the Islip Town Code.

In 1980, the Town of Islip (hereinafter the town), in response to a public outcry opposed to so-called "adult businesses", conducted a study on the effects of such establishments upon surrounding residential and commercial areas. This study consisted of an individual site analysis of "adult businesses" throughout the town, including the subject bookstore, and a review of studies and ordinances of other jurisdictions which utilized zoning ordinances to regulate adult businesses. Following the research period, it was determined that the town would base its adult-use ordinance on rulings by the United States Supreme Court and other courts and on the Detroit Anti-Skid Row Ordinance which dispersed so-called "sex-related businesses" (see, Young v. America Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310, reh. denied 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155).

On September 23, 1980, a public hearing was held to consider the addition to the Islip Town Code of an adult-use ordinance ². At the hearing, the proposed ordinance (§ 68-341.1) was detailed by Eugene Murphy, a planner in the Town Department of Planning and Development. Mr. Murphy explain that the purpose of the ordinance was "to reduce the destructive impact of adult uses on neighborhoods and prevent further ones". He also discussed the prospective location of "adult businesses", as follows:

"We feel the proper zone is an Industrial one, after special exception of the Board of Appeals. The reason for 'Industrial' is that it should be generally removed from residences because it has an adverse effect on residential and business as well.

"With a Shopping Center, it tends to attract a wide marginal use such as: Bars, Lodging Houses, and Porno Book Stores. What we have seen is * * * these uses tend to pull together so that the overall effect is much worse. It is not the Use, itself, but what it attracts, and you get Skid Row effect in a business area".

Regarding the definition of "adult uses", Murphy explained that in formulating similar ordinances, other legislative bodies throughout the nation had experienced difficulty in defining "sex" and "adult" uses. A decision was eventually made to define an "adult use" establishment as one which excludes "any minor by reason of age", and thereby avoid making difficult determinations as to what is pornographic and what is not pornographic. Following the hearing on September 23, 1980, the Islip Town Board unanimously approved the enactment of § 68-341.1. After the passage of this ordinance, the bookstore continued to operate as a legal nonconforming adult use subject to the amortization provisions of the ordinance (see, Islip Town Code § 68-341.1[F] which established a five-year graduated termination date for nonconforming adult uses, depending upon the amount of capital investment).

More than four years later, on February 21, 1985, William Heffernan, an investigator in the Law Enforcement Division of the office of the Town Attorney of the Town of Islip, visited the Happy Hour bookstore. As he approached the premises, Mr. Heffernan observed a prominently displayed sign stating, "You must be 21 years or older to enter". In the store, he observed a quantity of books and periodicals of a sexually-oriented nature offered for sale.

Following this inspection, in March of 1985, the Town commenced this suit to permanently enjoin the appellants from operating the subject premises as an adult bookstore. In the interim, the town sought a preliminary injunction precluding such use of the premises. Its petition alleged the following:

1. The bookstore was an "Adult bookstore" within the meaning of § 68-341.1(B) of the Town Code;

2. The bookstore was being operated in an area zoned "Business I", which was violative of Town Code § 68-271; and

3. The appellants' pre-existing right to a legal non-conforming adult use had terminated pursuant to § 68-341.1(F) as of January 15, 1985, if not sooner.

Both the town and the appellants moved for summary judgment. In support of their motion, the appellants argued that:

1. The bookstore was being operated pursuant to a valid non-conforming use which predated the ordinance.

2. The zoning ordinance was vague and contravened N.Y. Constitution article I, § 6 and § 8.

3. The ordinance constituted a prior restraint in violation of the State Constitution with regard to the bookstore.

In an order dated June 26, 1985, the Supreme Court, Suffolk County (Balletta, J.), denied the town's motion for a preliminary injunction and denied both the motion and the cross motion for summary judgment, finding that "[n]either party [had] presented sufficient evidence to direct judgment in their favor". Justice Balletta went on to dismiss the appellants' "void for vagueness" defense, stating "[s]ince the [appellants] admit that [t]he[y] [are] operating an adult bookstore in violation of the ordinance, it is clear that the ordinance applies to [them] and [t]he[y] may not challenge it on the basis of vagueness. Neither [do they] have standing to challenge it on behalf of third persons (Wigginess, Inc v [Fruchtman], 482 FSupp 681, affd 628 F2d 1346[, cert denied 449 U.S. 842] [101 S.Ct. 122, 66 L.Ed.2d 501 ])". By notice of appeal dated July 23, 1985, the appellants appealed from so much of Justice Balletta's order as denied their motion for summary judgment "and [did] not appeal from any other part of the [order] except as herein specifically set forth". That appeal was never perfected.

The parties then sought a determination, based upon stipulated facts submitted pursuant to CPLR 3222, as to the constitutionality of the subject zoning ordinance. In a decision dated July 29, 1987, the Supreme Court, Suffolk County (Saladino, J.), found that the ordinance was constitutionally valid on its face and represented a proper exercise of the Town of Islip's zoning power. The court declined to address the appellants' claim that the statute was "void for vagueness", stating that Justice Balletta's June 26, 1985, decision was the law of the case. In addition, the court rejected the appellants' challenge to the five-year amortization clause contained in the ordinance.

On September 15, 1987, an order and judgment (one paper) was made permanently enjoining the appellants from operating the Happy Hour Bookstore as an "adult bookstore" as defined in § 68-341.1(B) of the Islip Town Code. This court granted a stay of the order and judgment pending the outcome of this appeal.

II

The crux of the appellants' argument on appeal is that the subject adult-use ordinance is constitutionally infirm, in that the ordinance constitutes a content-based prior restraint upon free speech in violation of N.Y. Constitution, article I, § 8. In opposition, the Town contends that, based upon the test set forth by the United States Supreme Court in Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, the ordinance is a valid time, place and manner restriction which is violative of neither the Federal nor the State Constitutions.

The issue presented must be resolved within the context of three pertinent decisions of the United States Supreme Court. In Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310, reh. denied 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155, the court upheld as constitutional an "Anti-Skid Row Ordinance" which provided, inter alia, that an adult theater could not be located within 1,000 feet of any two other "regulated uses," or within 500 feet of a residential area. "Regulated uses" included adult bookstores and theaters, cabarets, bars, dance halls and hotels which were restricted to adults. Reasoning that the lines drawn by the ordinance were justified by the city's interest in preserving the character of its neighborhoods and that ultimately what was at stake was "nothing more than a limitation on the place where adult films may be exhibited", the court held that the ordinance was not violative of the Equal Protection Clause of the Fourteenth Amendment (Young v. American Mini Theatres, Inc., supra, at 71-73, 96 S.Ct. at 2453).

In Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671, the court struck down, as violative of the First and Fourteenth Amendments, an ordinance prohibiting all live entertainment in a commerci zone. Pursuant to this ordinance, the borough sought to preclude live nude dancing at an establishment where adult films were viewed. Distinguishing Schad from ...