Turley v. Giuliani

• Decision Date: 15 February 2000
• Docket Number: No. 99 Civ. 3381(SAS).,99 Civ. 3381(SAS).
• Citation: 86 F.Supp.2d 291
• Parties: Robert TURLEY and Tyrone Hamlette, Plaintiffs, v. Rudolph GIULIANI, in his official capacity as Mayor of the City of New York and in his individual capacity; Howard Safir, in his official capacity as Police Commissioner of the City of New York and in his individual capacity; Joel Miele, in his official capacity as Commissioner of the Department of Environmental Protection of the City of New York; Thomas Purtell and Diane O'Connor, in their official and individual capacities; and the City of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

86 F.Supp.2d 291

Robert TURLEY and Tyrone Hamlette, Plaintiffs, v. Rudolph GIULIANI, in his official capacity as Mayor of the City of New York and in his individual capacity; Howard Safir, in his official capacity as Police Commissioner of the City of New York and in his individual capacity; Joel Miele, in his official capacity as Commissioner of the Department of Environmental Protection of the City of New York; Thomas Purtell and Diane O'Connor, in their official and individual capacities; and the City of New York, Defendants.

No. 99 Civ. 3381(SAS).

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

February 15, 2000.

Robert T. Perry, Brooklyn, New York, for Plaintiff.

Dana H. Biberman, Corporation Counsel for the City of New York, New York, NY, for Defendant.

OPINION AND ORDER

SCHEINDLIN, District Judge.

Plaintiffs, Robert Turley and Tyrone Hamlette, are professional street musicians who perform in and around the Times Square area. They bring this action to vindicate their First Amendment right to play reasonably amplified music on the sidewalks and traffic islands which comprise Times Square. Plaintiffs have moved for a preliminary injunction enjoining and restraining the defendants (collectively, the "City") from: (1) enforcing a decibel ceiling of 85-dB(A)-at-10 feet; (2) specifying a decibel ceiling lower than 95-dB(A)-at-15 feet on their sound device permits; (3) charging plaintiffs with making "unreasonable noise" or exceeding the allowable decibel level based on arbitrary sound measurement practices; (4) imposing restrictions on plaintiffs' amplified music from which corporate-sponsored amplified events are exempt; (5) favoring certain Fifth Avenue business entities in the processing and issuance of sound device permits for the area in front of Trump Plaza at 5th Avenue and 58th Street; and (6) granting such entities "sham" permits in order to limit plaintiffs' opportunities for sound device permits at that location. The first three demands are referred to as the "sound level demands" while the latter three demands are referred to as the "preferential treatment complaints." For the reasons that follow, plaintiffs' motion is granted in part and denied in part.

I. Facts

A. The Music

Plaintiffs are street musicians who earn their living by performing music on sidewalks and traffic islands in and near Times Square. Affidavit of Robert Turley in Support of Plaintiffs' Motion for a Preliminary Injunction, sworn to November 2, 1999 ("Turley Aff."), ¶ 2. Turley plays the electric bass and the TrebleBass, which is a combined electric bass and guitar, while Hamlette plays a portable drum kit. Id. Neither of Turley's instruments can be heard without a sound amplifier. Id. In order to earn a living, plaintiffs typically perform an eclectic mix of soul and jazz six to eight hours a day, five days a week. Id., ¶ 3. They usually play at a volume of 95 dB(A)-at-15 feet, which they contend is just loud enough to be heard above the ambient noise. Id. In good weather, plaintiffs attract between 15 and 20 people who typically stand 15 to 20 feet away from them. Id.

B. The City's Sound Device Permit Scheme

To obtain a sound device (amplification) permit, an applicant must apply at least five days prior to the proposed use to the police precinct covering the area in which the sound device is to be used. See N.Y.C. Admin. Code § 10-108(e). The applicant must state the exact time, date and location where he or she proposes to use a sound device. Id. Each sound device permit must specify the exact time, date and location where the sound device may be used. N.Y.C. Admin. Code § 10-108(f). Each sound device permit must specify the "maximum volume of sound which may be employed in [the] use or operation" of the sound device. Id.

Turley typically applies for at least one five-day permit at either Mid Town North Police Precinct ("MTN"), which serves Times Square and the vicinity above West 45th Street, or Mid Town South Police Precinct ("MTS"), which serves Times Square and the vicinity below West 45th Street. Id., ¶ 5.

Prior to March 1998, both MTN and MTS specified a 75-dB(A)-at-6 feet decibel level. Declaration of Robert T. Perry, plaintiffs' attorney, in Support of Plaintiffs' Motion for a Preliminary Injunction, sworn to November 3, 1999 ("Perry Decl."), ¶ 6. In March of 1998, in response to earlier litigation brought by Turley contesting the 75-dB(A)-at-6 feet decibel level, MTN began specifying an 85-dB(A)-at-6 feet decibel ceiling on sound device permits. Turley Aff., ¶ 8. At about the same time, MTS began specifying an 85-dB(A)-at-10 feet decibel ceiling. Id. On July 31, 1999, MTN raised the decibel ceiling to 85-dB(A)-at-10 feet. Id., ¶ 16. The Department of Environmental Protection ("DEP"), however, has adopted the permissive policy of not pursuing enforcement¹ unless the measured sound level exceeds the permissible sound level limit by more than 3 decibels. Thus, a violation will not issue unless the sound level is at least 88-dB(A)-at-10 feet. See Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary Injunction ("Opp. Memo") at 9.

C. The City's Noise Code

The New York City Noise Code, Title 24, Chapter 2, §§ 24-201 et seq. of the Administrative Code, was enacted in 1972 to "reduce the ambient noise level in the city, so as to preserve, protect and promote the public health, safety and welfare, and the peace and quiet of the inhabitants of the city ..." N.Y.C. Admin. Code § 24-202. The Noise Code is primarily enforced by the DEP. Perry Decl., ¶ 8 (citing N.Y.C. Admin. Code § 24-204). Section 24-218 of the Noise Code prohibits the making of "unreasonable noise," a term defined to mean:

any excessive or unusually loud sound that disturbs the peace, comfort or repose of a reasonable person of normal sensitivities or injures or endangers the health or safety of a reasonable person of normal sensitivities, or which causes injury to plant or animal life, or damage to property or business.

N.Y.C. Admin. Code § 24-203(ccc).

Furthermore, § 24-220(a) provides that "[e]xcept as provided in section 10-108 of the [Administrative] code, no person shall operate or use or cause to be operated or used any sound reproduction device in such a manner as to create any unreasonable noise." Plaintiffs note that the City of New York has previously taken the position that a street musician will not be charged with making "unreasonable noise" unless the sound device is being operated at a level in excess of the allowable decibel ceiling and at least 10dB(A) above the ambient noise level. Perry Decl., ¶ 10 (citing Turley v. New York City Police Dep't, 988 F.Supp. 675, 679-80 (S.D.N.Y.1997) ("Turley I"), aff'd. in part, rev'd in part, 167 F.3d 757 (2d Cir.1999)).

II. Discussion

A. Standard for Preliminary Injunctive Relief

A preliminary injunction generally may not be issued unless the plaintiff demonstrates that it is necessary to prevent irreparable harm and either (1) a likelihood of success on the merits, or (2) 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. Polymer Tech. Corp. v. Mimran, 37 F.3d 74, 77-78 (2d Cir.1994); Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir.1994). However, when the "moving party seeks a preliminary injunction to stay government action taken in the public interest pursuant to a statutory or regulatory scheme," a preliminary injunction should only be granted if the movant meets the more rigorous "likelihood of success" standard. Latino Officers Ass'n v. City of New York, 196 F.3d 458, 462 (2d Cir.1999) (internal quotation marks and citations omitted).

Plaintiffs argue that because there are public interest concerns on both sides of this case, they may rely on the less rigorous "fair ground for litigation" standard. Plaintiffs cite Time Warner Cable of New York City v. Bloomberg L.P., 118 F.3d 917, 923 (2d Cir.1997) in support of this proposition. However, in Time Warner plaintiff did not seek to enjoin the exercise of governmental regulatory authority. Id. at 923-24. Rather, plaintiff, a cable operator, sought to enjoin New York City from using channels reserved for public, educational or governmental ("PEG") purposes for two 24-hour news programs produced by commercial television programmers. Id. at 919. In weighing the public interest concerns on both sides, the court noted that "the proposed action of the City in deciding what programming to place on one of its reserved PEG channels is more akin to ... proprietary action." Id. at 923. In issuing the injunction, the court held that the public interest in maintaining PEG channels for their intended use outweighed the needs of the viewing public for a diversified range of traditional commercial programming, a need adequately met by numerous non-PEG channels. Id. at 929. There is no proprietary action at issue here — plaintiffs are seeking to prevent the City from exercising its regulatory authority by enforcing the current decibel ceiling. See id. at 923-24 (higher standard applies where plaintiff seeks "to prevent the exercise of governmental regulatory authority"). Accordingly, the likelihood of success standard will apply here as it did when Turley previously sought preliminary injunctive relief. See Turley v. New York City Police Dep't, 93 Civ. 8748, 1996 WL 93726, at *3 (S.D.N.Y. Mar. 5, 1996).

It is well established that "`the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable harm.'" Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir.1991) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). Because the violation of a constitutional right is the irreparable harm asserted here, the two prongs of the preliminary injunction threshold merge into one: in order to show irreparable injury, plaintiff must show a...