Petition — Wigginess, Inc. v. Fruchtman

In The

October Term, 1979

Misc. No. : g 0 4 3

WIGGINESS, INC., SPARTACUS SPA, INC., LEA

FACILITIES, INC., AL SIGELOW, d/b/a GREENWOOD

ENTERPRISES, NEW WAVE SOCIAL CLUB, INC.,

PRIMERO CONSTRUCTION CORP.,

Petitioners,

— against —

IRWIN FRUCHTMAN, INDIVIDUALLY AND AS

COMMISSIONER OF THE DEPARTMENT OF BUILDINGS

OF THE CITY OF NEW YORK, ALLEN SCHWARTZ,

INDIVIDUALLY AND AS CORPORATION COUNSEL OF

THE CITY OF NEW YORK, ROBERT MCGUIRE,

INDIVIDUALLY AND AS POLICE COMMISSIONER OF

THE CITY OF NEW YORK, AND EDWARD TRICOMI,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

HERBERT S. KASSNER

122 East 42nd Street

New York, NY 10168

Counsel for Petitioners

Printinghouse Press -. Bar Ass’n Steno Serv. ( Appeals Section) 212-840-1891

TABLE OF CONTENTS

page

<p pio Bek, PS ne oe ek:

GE LEE 6k es kD Se RCE RER RR

QUESTION PRESENTED... -eese-eeneceeeed

CONSTITUTIONAL

PROVISIONS INVOLVED.........+.+3

ORDINANCE WHICH IS THE

SUBJECT OF THIS ACTION.........3

STATEMENT OF FACTS

eke teas uss cenane

REASONS FOR GRANTING

THE WRIT

eveceweseetaceseteesewem

CONCLUSION 23

Pg gS Ee re aap. ama ere:

APPENDIX A, ORDER OF THE

UNITED STATES COURT OF

APPEALS FOR THE SECOND

CT MCULS ..c 6 6.0% 66k 6 a HS be OBE 6 ce vee“

APPENDIX B, OPINION OF THE

UNITED STATES DISTRICT

COURT FOR THE SOUTHERN

DISTRICT OF NEW YORK...........3a-ola

APPENDIX C, AMENDED

ZONING ORDINANCE OF THE

Clan OF NEW 0) es

ii page

Cantwell v. Connecticut,

Dt a. Oe Shee) soctcecenvveche

Coates v. Cincinnati,

SE Sb 5 re © ee

Connally v. General Construction Co.

269 = a a LN. eee © Oa

Dombrowksi v. Pfister,

a Sr re CEPOS ceccccccscceed

Evans V. Newton,

i ie en CPO D peo ccceeecceee

Gibson v. Florida Legislative

Investiaation Committee,

372 U.S. 539 (1963) ccrccccccercd2Z

Grayned v. City of Rockford,

408 U.S. 104 (1972) ....0200000.16

Griswold v. Connecticut,

nr ea. MP AROS) ciecccccccresad

Louisana v. NAACP, .

NS 8 ek | 4) erry 2

Moose Lodge v. Irbis,

407 ¥.8. 163 ae tin os oboe vee

NAACP v. Alabama, 357

Beate rr aa Pe

NAACP v. Button,

371 U.S. 415 Dt! cbbs saeeecceae

Papachristou v. City of

Jacksonville, 405 U.S.

156 EE SE are 9 ee a ies

—_

ESE

id3 page

People v. Dobbs Ferry

Medical Pavillon, Inc.

33 N.Y. 2d 584, 347

WES 2G 452. CASTS) ccccccvcccsccvbaps?

People v. Illardo,

48 N.Y. 2d 408, 423

N.Y.S. 2d 470 (1979) ...eeoeeee dl

People v. Munoz, 9 NY 2d

Das. gaa eee 26 146 (1961) .eccecdd

People v. Scott, 26 N.Y.

2d 286, 309 NYS 2d

919 (1970) .c cece cocese Terre. .

Smith v. Goguen, 415 U.S.

566 (1974) wcccccccccvccccccccec enh, b6,19

Thornhill v. Alabama, 310

U.S. 88 CT his Ceci cade wh ere’ th trae

Wigginess Inc. v. Fruchtman,

79 Civ 5675 (RIW) . cccccccescee edd

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

Misc. No.

WIGGINESS, INC., SPARTACUS SPA, INC.,

LEA FACILITIES, INC., AL SIGELOW,

d/b/a GREENWOOD ENTERPRISES, NEW WAVE

SOCIAL CLUB, INC., PRIMERO CONSTRUCTION

CORP.,

Petitioners,

~against-

IRWIN FRUCHTMAN, INDIVIDUALLY AND AS

COMMISSION OF THE DEPARTMENT OF

BUILDINGS OF THE CITY OF NEW YORK,

ALLEN SCHWARTZ, INDIVIDUALLY AND AS

CORPORATION COUNSEL OF THE CITY OF

NEW YORK, ROBERT MCGUIRE, INDIVIDUALLY

AND AS POLICE COMMISSIONER OF THE CITY

OF NEW YORK, AND EDWARD TRICOMI,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners respectfully pray a writ

of certiorari issue to review the judgment

and order of the United States Court of

Appeals for the Second Circuit decided

April 28, 1980.

?; >

OPINION BELOW

The judgment and order of the United

States Court of Appeals for the Second

Circuit in this case is not yet reported

and is set forth herein in full in the

Appendix A. The said judgment affirmed,

with one minor reservation hereinafter

referred to, a judgment of the United

States District Court for the Southern

District of New Yr -k denying Petitioners'

application for picliminary injunction

and granting Respondents' cross motion

to dismiss with respect to virtually

all of Petitioners' claims. The opin-

ion of the District Court, Honorable

Robert J. Ward, rendered December 28,

1978 is annexed hereto as Appendix B.

The said judgment of the United States

Court of Appeals for the Second Circuit

directed the lower court to retain juris-

diction over claims of Petitioner Primero

Construction Corp., pending a reasonable

Opportunity for a State Court adjudica-

tion, said claim having been dismissed

by the District Court.

JURISDICTION

The judgment of the United States Court

of Appeals for the Second Circuit was de-

cided and filed on April 28, 1980. This

Petition for a writ of certiorari was

filed within 90 days of that date. Juris-

diction in invoked under 28 U.S.C. 1254

(1). .

QUESTIONS PRESENTED

1. Whether the ordinance in question is

not so overbroad and vague in its proscrip-

tion as to fail to give adequate warning

of the acts proscribed thereby and as to

vest unlimited discretion in the hands of

law enforcement officials to pick and choose

the targets of proscription under the or-

dinance in violation of the due process

provisions of the Fourteenth Amendment of

the United States Constitution.

2. Whether the ordinance in question is

so overbroad in its scope as to chill and

inhibit the exercise of First Amendment

rights of assembly, association and priv-

acy without the justification of a compel-

ling government interest, in violation of

the First and Fourteenth Amendments of

the United States Constitution.

CONSTITUTIONAL PROVISIONS INVOLVED

The provisions of the United States Con-

stitution involved are the First and Fourth-

eenth Amendments.

ORDINANCE WHICH IS THE SUBJECT

OF THIS ACTION

On or about November 23, 1978, the City

of New York promulgated an amendment to

the New York City Zoning Resolution which

purports to outlaw the establishment of

an "Adult Physical Culture Establishment"

within the City of New York and which re-

quires the "amortization" of any existing

"Adult Physical Culture Establishment"

within one year of the adoption of the

>.

4

said ordinance, i.e., in November 1979.

A copy of the ordinance is set forth as

Appendix C.

The aforesaid amendment defines "Adult

Physical Culture Establishment" (herein-

after referred to as APCE) as follows:

"Adult Physical Culture Establish-

ment is any club or business by

whatever name designated which of-

fers or advertises or is equipped

Or arranged so as to provide as

part of its' services, massages,

body rubs, alochol rubs, baths

or other similar treatment, by

members of the opposite sex..."

The following uses shall not be in-

Cluded within the definition of an

Adult Physical Culture Establish-

ment:

(1) Establishments which routinely

provide such services by a

licensed physician, a licensed

Chiropractor, a licensed

Osteopath, a licensed Pract-

ical Nurse or a Registered

Professional Nurse;

(2) Electrolysis treatment by a

licensed operator of electro-

lysis equipment;

(3) Continuing instruction in

Martial or performing arts or

in organized athletic activi-

ties;

(4) Hospitals, Nursing Homes,

Medical Clinics or Medical

offices; and

5

(5) Barber Shops or Beauty Parlors

which offer massages to the

scalp, the face, the neck or

shoulders only.

A sixth exception has been added since

the adoption of the ordinance by excluding

licensed masseurs and masseuses from the

proscription of the ordinance.

‘“

STATEMENT OF FACTS

The underlying facts in the instant case

are indisputable. Each of Petitioners

was either subjected to the enforcement of

the ordinance in question prior to the com-

mencement of this action or has been sub-

jected to its enforcement thereafter. With

exception of Petitioner Primero, each is

threatened with criminal and civil sanc-

tions for alleged violation of the ordin-

ance. Petitioner Primero has been denied

a building permit to construct three apart-

ments in a building which it leases on the

grounds that in the opinion of the Building

Department of the City of New York, the

apartments proposed to be constructed, as

set forth in the plan, appeared to be,

"equipped or arranged" as an APCE. Peti-

tioner New Wave Social Club, Inc., is a

non-profit social club organized under

the Not-For-Profit Corporation Law of the

State of New York, whose two employees, a

receptionist and a locker room attendant,

do not come in contact with the club mem-

bers. Petitioner Lea Facilities, Inc.,

is a not-for-profit social club organized

under the Not-For-Profit Corporation Law

of the State of New York, which offers

Manicures and other such services to its

members by employees of the opposite sex.

6

The other three Petitioners are leisure

spas which have male members and female

employees who act as manicurists, sun

lamp attendants, bath attendants, etc.

Each and all of the Petitioners have

denied that they offer body rubs, alcohol

rubs, or massages to their patrons or mem-

bers, and the record below reveals no evi-

dence whatsoever of such conduct. Each

Petitioner, however, clearly falls within

the ordinance.

It has been customary for officials ot

the City of New York to summarily close

down premises which the said City alleges

are occupied in violation of certificates

of occupancy or zoning resolutions. The

method utilized by officials of the City

of New York is to secure ex parte tempor-

ary restraining orders followed by pre-

liminary injunctions granted without evi-

dentiary hearings notwithstanding the ex-

istance of opposing sworn affidavits ex-

pressly contradicting and denying the alle-

gations of the moving papers. By the time

the case comes on for a hearing such prem-

ises and establishments are no longer in

occupancy, tenants being unable to meet

such expenses as rent while being closed.

The foregoing scenario is called for by

the New York City Nuisance Abatement Law,

which is not subject to attack in the in-

stant proceeding but which clearly justi-

fies the fear of Petitioners that they will

meet the same fate as dozens of tenants

subjected to the foregoing charade over

the past few years.

Petitioners are also faced with crim-

inal sanctions of up to one year in jail

and $5000 fine for violation of the zoning

-

resolution of the City of New York.

By reason of the foregoing, Petitioners

brought this proceeding prior to the ef-

fective date of the one year amortization

called for by the ordinance. There was

never any question below that not only

the two establishments that were served

under the ordinance prior to the commence-

ment of the action, but the other four as

well, some of which have since been served,

were regarded as Adult Physical Culture

Establishments by the City of New York

and would be subject to enforcement under

the ordinance.

With respect to Petitioner Primero, it

has been unable to obtain approved plans

and a permit to construct three apart-

ments for well over a year. It is suf-

fering daily with the three vacant floors

in the building.

This action for declaratory judgment

and injunctive relief against the ordin-

ance came on for hearing on a motion for

preliminary injunction in the United

States District Court for the Southern

District of New York before the Honorable

Robert J. Ward who, without taking testi-

mony, denied Petitioners motion for pre-

liminary injunction and granted Respondents

motion to dismiss with respect to all of

Petitioners' claims except the due process

attack upon the one year amortization,

which it agreed to hear as to all Peti-

tioners except Primero.

The Court of Appeals for the Second

Circuit corrected the Pullman Absention

dismissal by the Court below by ordering

that Court to retain jurisdiction over the

claim of Primero pending State Court con-

8

struction of the ordinance. With that ex-

ception, it affirmed the decision below in

all respects.

REASONS FOR GRANTING THE WRIT

The District Court treated the ordinance

as if it were a cross sexual massage ordin-

ance, erroneously stated that all Peti-

tioners with the exception of Primero had

admitted that they offered massage services

on the premises, and concluded that those

five Petitioners could not complain of

the vagueness or overbreadth of the ordin-

ance. The District Court abstained as tc

Primero on Pullman grounds. In view of

the foregoing determinations of the Dis-

trict Court, it did not find it necessary

to analyze either the vagueness and over-

breadth arguments relating to First Amend-

ment rights of privacy and association.

The District Court, having treated the

instant ordinance as if it were a cross

sexual massage ordinance, rested its deter-

mination on a series of decisions of this

Court which have held that various equal

protection and due process attacks on

cross sexual massage laws did not set forth

substantial federal questions.

As has been noted heretofore, the Court

of Appeals for the Second Circuit did not

see fit to write an opinion.

It is respectfully submitted to this

Court that the ordinance in question is

not a cross sexual massage ordinance of

the kind this Court has ever considered,

is not even a cross sexual touching ordin-

ance, but is merely a blank check which

9

authorizes law enforcement officials of

the City of New York by any person as to

whom the speculation of indecent or unlaw-

ful motivation is attributed. The enforce-

ment of the ordinance with respect to

Primero is the clearest example of the

scope thereof. Enforcement of the ordin-

ance with respect to a private social club

which has absolutely no touching between

members and employees is a further indica-

tion of the scope of the ordinance.

The definition of "Adult Physical Culture

Establishment" is:

"Any establishment, club or busi-

ness by whatever name designated

which offers or advertises or is

equipped or arranged so as to pro-

vide as part of its services, mass-

ages, body rubs, alcohol rubs,

baths or other similar treatment

by members of the opposite sex.”

Lest there by any doubt as to the all en-

compassing scope of the definition, the

Ordinance goes on to itemize various ex-

clusions from the foregoing definiton,

which exclusions clearly signify the scope

of the definition. These exclusions are

as follows:

(1) Establishments which roucinely

provide such services by a lic-

ensed physician, a licensed

Chiropractor, a licensed Osteo-

path, a licensed Practical

Nurse or a Registered Profes-

sional Nurse;

(2) Electrolysis treatment by a

licensed operator of electro-

lysis equipment;

10

(3) Continuing instruction in Martial

or performing arts or in organ-

ized athletic activities;

(4) Hospitals, Nursing Homes, Medical

Clinics or Medical Offices;

(5) Barber shops or Beauty Parlors

which offer massage to the scalp,

the face, the neck or shoulders

only; and

(6) Licensed masseurs and masseuses.

The exclusion of electrolysis treatment

makes it abuntantly clear that any touching

by members of the opposite sex, even with

the intervention of an instrument, brings

the act within the meaning of the ordinance.

The ordinance itself outlaws premises which

could be used for cross sexual baths whether

for a fee or not since the word business

is set forth in the disjunctive with re-

spect to "club" or "establishment". Fur-

ther, the words of the ordinance as well

as its enforcement with respect to Peti-

tioner, Primero Construction Corp., esta-

blishes that the premises need not be used

in the manner proscribed by the statute but

need only be “equipped or "arranged" in

such a manner as to permit its use in

the proscribed manner. The words "other

similar treatment" make the scope of the

ordinance all encompassing.

Five Petitioners admit that their prem-

ises are equipped or arranged so as to be

usable for cross sexual baths and the sixth

seeks a building permit for construction

which would make it usable for such pur-

pose, a purpose explicitly proscribed by

the ordinance in the clearest most unequi-

vocal terms.

ll

Clearly, a Manicurist, Pedicurist, Bath

Attendant, Dental Technician, Dentist,

Registered Professional Nurse who is not

then in an establishment which routinely

provides such services, a person engaged

in practice of any performing art or or-

ganized athletic activity as opposed to a

person involved in continuing instruction

in such activity, etc. are covered by the

Ordinance in whatever premises they may

be "by whatever name designated", includ-

ing but not limited to their own homes.

There is no premises in the City of New

York which is not "equipped or "arranged"

for the rendition of the proscribed acts.

With respect to any such premises, the

Respondents can outlaw its use based upon

their notion of its intended use.

Perhaps the greatest evil of the ordinance

is its vesting in the hands of administra- ,

tive officials such as Respondents herein

the standardless and unlimited right to

determine which premises they will close

and which premises they will allow to re-

main open, which people they will permit

cross sexual touching and which people will

be forbidden such touching. The breadth

of the ordinance is so great as to set

virtually no standards for the exercise of

such discretion. The two attempts at en-

forcement of the ordinance clearly illus-

trate the foregoing.

The ordinance does not deal with proscrip-

tions of either illegal or immoral conduct.

The ordinance covers virtually any premises

in which there could be conducted any acti-

vity or occupation which involves the touch-

ing by one person of another whether through

the use of an intervening instrument or

Otherwise. The exemption of electrolysis

12

7”

makes this abundantly clear. The mind

boggles at the overbreadth of the ordinance.

We are dealing here with proscription upon

the common and customary activities, pract-

ices and occupations of society which can-

not be impeded or proscribed without a com-

pelling governmental interest. Surely it

cannot be the position of the defendants

that the only way prostitution can be de-

terred in the City of New York is by pro-

hibiting premises to exist in which people

of the opposite sex could touch each other.

This, however, must be their position if

they are to claim that the ordinance has

any rational nexus at all.

While the City of New York has been

known to attempt to burn down the house

to roast the pig, this ordinance reaches

the epitome of the practice.

Would a woman be permitted to tatoo a man

under this ordinance? Would a Registered

Nurse be permitted to give a patient a

massage in the patient's home under this or-

dinance? Would a dance hostess be permitted

to dance with a customer under this ordin-

ance? Would a woman be permitted to give

a man a manicure under this ordinance?

Would any of Petitioners' female bath at-

tendants be permitted to towel dry a pat-

ron in any of Petitioners' premises?

Would a wife or girlfriend be permitted to

give her husband or boyfriend an alcohol

rub in any of Primero Construction Corp's

three apartments if it were permitted to

construct such apartments? The examples

are myriad; the overbreadth and vagueness

of the ordinance astounding.

It cannot be overemphasized that the

evil of the ordinance herein is not tradi-

tioral concept of vagueness,i.e., that its

13

proscription cannot be understood, it is

in its overbreadth, i.e., in that it is so

all encompassing that it covers any prem-

ises which is not "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". Each of the Peti-

tioners herein has a premises in which

there are baths and which is equipped or

arranged for the use of such baths by mem-

bers of any sex including members of the

opposite sex. It cannot be the subject

of dispute that each of the Petitioners

fall squarely within the proscription of

this ambiguous but overbroad ordinance.

This is so notwithstanding the fact that

there is no evidence whatsoever on the

record that any of the premises offer

cross sexual massages.

By virtue of the foregoing, nothing could

be clearer than the fact that the ordin-

ance in question is not a cross sexual

Massage Ordinance but is rather an ordin-

ance which allows administrative and other

law enforcement officials of the City of

New York to prohibit and punish by means

of civil and criminal sanctions any person

whom they feel fit to so sanction merely

because that person is connected with a

premises within the City of New York which

is deemed undesirable by such administra-

tive or law enforcement agents.

It is apparent from the papers of Respond-

ents below that the evil sought to be ex-

tinquished through the use of this overbroad

ordinance is prostitution under the guise

of massage. The zoning resolution, however,

neither directs itself against prostitution

nor limits its proscription to massage.

No comparable ordinance has ever been ad-

opted anywhere, and no case has been or

14

could be cited to uphold such a zoning re-

solution.

Confronted with the ordinance, the man of

ordinary intelligence cannot possibly re-

ceive fair notice of what is prohibited.

Although the ordinance clearly states that

every premises in New York City which is

equipped so as to offer a bath or alcohol

rub is unlawful, it is apparent to anyone

of normal intelligence that the ordinnace

cannot mean what it states, because such

a broad prohibition would make every per-

son in the City of New York subject to

criminal prosecution.

An overbroad law, like the APCE ordin-

ance, is void because it "simply has no

core" in that it lacks "any ascertainable

standard for inclusion and exclusion" of

what is covered by the statute, Smith

v. Goguen, 415 U.S. 566, 578 (1974).

The APCE ordinance is void

"not in the sense that it requires

a person to conform his conduct to

an imprecise but comprehensible

standard, but rather in the sense

that no standard of conduct is

specified at all. As a result,

men of common intelligence must

necessarily guess at its meaning.'

Connally v. General Construction

CO., 269 U.S. 385." Coates v.

Cincinnati, 402 U.S. 611, 614 (1971)

There is nothing imprecise or indefinite

about the ordinance's language which a state

Court can refine into a comprehensible stand-

ard. On the contrary, the language of the

Ordinance ("equipped or arranged so as to

provide...alcohol rubs, baths...") is clear

15

and specific in its indication that the or-

dinance applies to every establishment in

New York City in a standardless and over-

broad manner.

That the APCE ordinance may deter some

criminal behavoir does not excuse its over-

breadth. A law which sweeps in a great

variety of conduct under a general and in-

definite characterization cannot be sus-

tained under the due process clause.

Cantwell v. Connecticut, 310 U.S. 296 (1940),

People v. Dobbs rere Medical Pavillon,

inc., N.Y. ’ N.Y.S. 2

(1973). A statute may not be worded over-

broadly so that courts may pick and choose

those whom they will prosecute or so that

police may have a large arsenal for enforc-

ing the law. Legislatures cannot set

nets large enough to catch all possible

offenders and leave to law enforcers the

task of selecting targets for enforce-

ments. A law is only valid if it is

fenced in with narrow and definite langu-

age that gives notice of the kind of con-

duct to be avoided. Papachristou v. City

of Jacksonville, 405 U.S. 156 (1972).

The net cast by the APCE ordinance is

unlimited, thus allowing police and judges

unlimited discretion to crush all kinds of

behavior. By casting such a large net,

however, the APCE ordinance provides,

without warning, a trap for the innocent

who are engaged in the exercise of their

constitutional rights. For this reason,

the APCE ordinance is void.

The APCE ordinance also offends the second

requirement of the vagueness doctrine, that

law enforcement officials and triers of

fact be given clear guidelines for enforc-

ing the law.

16

The second requirement has been called

the most meaningful aspect of the doctrine,

Smith v. Goguen, 415 U.S. 574. Under the

second requirement, legislatures are re-

quired to establish minimal standards for

law enforcement. When legislatures abdic-

ate this basic responsibility and enact

statutes of a standardless sweep, select-

ive law enforcement results. Policemen,

prosecutors and juries are allowed to pur-

sue their personal predilections. Law

making is entrusted to the moment to mom-

ent judgment of the policeman on his beat.

Smith v. Goguen, 415 U.S. 574, 76. The

Waunfettered latitude thereby accorded law

enforcement officials and triers of fact"

is violative of due process. Smith v.

Gougen, 415 U.S. 574, 578.

How can police enforce and juries apply

a law which declares every premises in

New York City unlawful? The obvious ans-

wer is that they cannot, unless they pick

and choose those whom they will prosecute.

Clearly, the APCE Ordinance "impermissibly

delegates basic policy matters to police-

men, judges and juries for resolution on

an ad hoc and subjective basis, with the

attendant dangers of arbitrary and discrim-

inatory application." Grayned v. City of

Rockford, 408 U.S. 104, 109 (1972)

The danger presented by the APCE ordin-

ance's unfettered grant of power of law

enforcement officials is frightening.

Lacking the guidance of a clear and narrow

legislative mandate, police and triers of

fact are free to vent their anger and pre-

judices on whomever they fancy. The fol-

lowing language could well describe the

APCE ordinance:

17

"(T]here are nce standards governing

the exercise of the discretion

granted by the ordinance, the

scheme permits and encourages an

arbitrary and discriminatory en-

forcement of the law. It furnishes

a convenient tool for ‘harsh and

discriminatory enforcement by local

prosecuting officials, against part-

icular groups deemed to merit their

displeasure,' Thornhill v. Alabama,

310 U.S. 88, 97-98." Papachristou

v. City of Jacksonville, 405 U.S.

170 ones

The classic example of law enforcement

officials utilizing the APCE ordinance as

a harsh tool against a group meriting their

displeasure occurs in the case of Peti-

titioner Primero Construction Corporation.

In the District Court opinion below, Judge

Ward described Primero's position as follows:

"Primero Construction Corporation

('Primero') is a New York corpora-

tion which holds a lease on prem-

ises at West Forty-Fourth Street

in Manhattan. The City Buildings

Department has refused to issue

Primero a building permit to con-

struct what Primero claims will

be residential apartments on the

third, fourth and fifth floors

of the premises. The Buildings

Department claims...that one

reason [why the permit was denied]

is the expectation on city offi-

cials part that the premises

would not be used for residential

apartments but for an APCE.

Apparently the first two floors

of the building currently house a

Swingers club known as Xtazy, which

18

the city believes is run by Fred

Fredericks, the president of

Primero." Wigginess, Inc. v.

Fruchtman, 79 Civ 5675 (RJW), p.

2-3

In a footnote, Judge Ward adds that "the

city has not said whether it believes Xtazy

to be an APCE."

In sum, because the city suspects that

Fred Fredericks is currently operating an

APCE and therefore might open another APCE,

his company, Primero, has been denied a

permit for residential apartments. Judge

Ward's words show beyond a doubt that the

APCE ordinance can be used, as a harsh tool

Outlawing private residences, against in-

dividuals, like Fred Fredericks, who have

been deemed to merit the arbitrary dis-

approval of local prosecuting officials.

In Papachristou v. City of Jacksonville,

405 U.S. 156 (1972), the Court voided a

municipal ordinance which, among other

things, prohibited "persons wandering or

strolling around from place to place with-

out any lawful purpose or object", on the

grounds that the ordinance's breadth made

criminal activities which by modern stand-

ards are normally innocent.

Similarly, in Coates v. Cincinnati, 402

U.S. 611 (1971), the Court voided an ordin-

ance making it a criminal offense for three

or more people to assemble on a sidewalk

and there conduct themselves in a manner

annoying to persons passing by; the Court

said the ordinance was unconstitutionally

broad, because it authorized the punish-

ment of constitutionally protected activity.

19

In Smith v. Goguen, 415 U.S. 566 (1972),

the Court voided a statute imposing criminal

liability on one who publicly "treats con-

temputously” the United States flag. The

Court said that the language under which

the defendant was charged failed to draw

reasonably clear lines between the kinds

of nonceremonial treatment that were crim-

inal and those that were not. In other

words, the statute was overbroad in its

inclusion of innocent conduct.

The three laws discussed above, prohibit-

ing wandering about from place to place,

assembling on a public sidewalk in groups,

and debasing the flag in a nonceremonial

manner, are far less broad than the APCE

Oordinance's prohibition of all homes and

businesses in New York City.

The New York Court of Appeals has often

voided statutes which were far narrower

than the APCE ordinance.

In People v. Dobbs Ferry Medical Pavillon,

33 NY 20 584, 347 N.Y.sS. 13 (1973), the

Court of Appeals ruled that a law outlawing

the existence of an unlicensed abortion

clinic was void for overbreadth: "The

applicable statute and regulations govern-

ing the requirement of a license for an

enterprise engaged in institutional medical

care and treatment are entirely too broad,"

33 NY 2d 584, 347 N.Y.S. 2d 452.

The broadness problem centered on the

use of the words "facility" and "clinic":

"The terms 'facility' and 'clinic',

most often used, are inclusive of

many kinds of individual, partner-

ship, and group medical practice,

which concededly are not subject

29

to or intended to be subject to

licensing." 33 NY 2d 584,347 N.Y.S.

2d 452.

In People v. Scott, 26 N.Y. 2d 286, 309

NYS 2d 33 (1970), the New York Court of

Appeals held that a town ordinance prohibit-

ing the open storage of one or more inoper-

able vehicles was unconstitutional. The

Court objected to the ordinance on the

ground that it was so broad that it would

prohibit a land-owner from maintaining a

single antique for his own reasons:

",...the town here would punish the

owner who stores one vehicle.

Such a Draconian penalty seems un-

reasonable and, in addition, to

a degree so vast as to cast doubt

on its validity....Indeed, the pro-

hibition, against inoperable veh-

icles is too broad. The modifying

language,' for legal use on the

public highways', is so comprehen-

sive as to include in its prohibi-

tions the storage of a 1970 auto-

mobile in perfect functional condi-

tion but which may not be used on

the public highways because it does

not have a validated inspection

sticker." 26 NY 2d 292, 309 NYS

2d 923

In discussing the manner in which the town

ordinance violated due process, the Court of

Appeals stressed that because failure to

comply with the ordinance.could involve penal

sanctions, the ordinance had to meet the rig-

Orous tests which have been established for

criminal enactments. Where criminal penal-

ties are involved, a law must not only be

strictly construed but must be also be rea-

sonable and pellucid.

21

In People v. Munoz, 9 NY 2d 51, 211 NYS

2d 146 (1961), the Court of Appeals in-

validated a section of the New York City

Administrative Code, making it unlawful

for persons under twenty-one years of age

to have possession of knives and sharp

pointed or edged instruments because

there was "no boundary excluding from the

section's coverage the most commonly used

and innocently possessed devices of every-

day life." 9 NY 2d 57, 211 NYS 2d 150.

The Court found the code section so broad

that possession of "penknives, knitting

needles, fountain pens and the like" was

made into a criminal offense.

The APCE ordinance is similarly broad in

that it outlaws all "commonly used and in-

nocently possessed" establishments in New

York City.

Although the following has been stated

many times in many ways by the highest

Courts of New York State and the United

States, it cannot be overemphasized that

"As common sense and experience both

tell us, unless by its terms a law

is clear and positive, it leaves

virtually unfettered discretion in

the hands of law enforcement offi-

cials and thereby may encourage

arbitrary and discriminatory ad-

ministration." People v. Illardo,

48 N.Y. 2d 408, 423 N.Y.S. 2d 470

at 472 (1979) .

The enforcement of the instant ordinance

against Primero is the classic example of

the evils of the instant ordinance.

How much more so do the foregoing princi-

ples affect the First Amendment activities

22

of Petitioners Lea Facilities, Inc., and

New Wave Social Club, Inc., two non profit

social clubs.

It not longer can be doubted that the

First Amendment protects rights of associa-

tion as surely as it protects rights of

speech and religion. NAACP v. Alabama,

357 U.S. 449; Louisana v. NAACP, 366 U.s.

293 (1961), Gibson v. Florida Legislative

Investigation Committee, 372 U.S. 539 (1963).

This freedom of association includes social

clubs and social intercourse just as much

as it does political association. Griswold

v. Connecticut, 381 U.S. 479 (1965); Evans

v. Newton, 382 U.S. 296 (1966); Moose Lodge

v. Irbis, 407 U.S. 163 (1972).°

First Amendment principles differ markedly

from other constitutional principals in

numerous respects. One such respect is the

right to assert first amendment rights of

others in an attack upon an overbroad stat-

ute which inhibits or could inhibit the

exercise of First Amendment rights. Dom-

browski v. Pfister, 380 U.S. 479 (1965);

Thornhill y. Alabama, 310 U.S. 88, 97-98;

NAACP v. Button, 371 U.S. 415, 423-3. In

the words Of Dombrowski, at 486:

"For example, we have consistently

allowed attacks on overly broad

statutes with no requirement that

the person making the attack demon-

strate that his own conduct could

not be regulated by a statute drawn

with the requisite narrow specificty."

This doctrine of overbreadth applies to

First Amendment activity, be it the right

to disseminate expression, the right to

practice one's religion, or the right to

associate with people of one's choice.

23

Thus, as to the two social clubs involved

in the instant case, even if they had son-

ceded that their members engage in cross-

sexual massage (which they have not), they

would have the requisite standing to attack

the overbreadth of this ordinance.

CONCLUSION

Petitioners respectfully submit that the

instant ordinance is violative of funda-

mental concepts of due process and chills

the exercise of First Amendment rights of

association to an extent that were such

legislative draftsmanship to be upheld it

would convert this land from a land of

laws to a land of men in direct contra-

vention of our must fundamental legal

principle.

DATED: New York, New York, June 12, 1980.

Respectfully submitted,

HERBERT S. KASSNER

Attorney for Petitioners

la

APPENDIX A

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States

Court of Appeals for the Second Circuit

held at the United States Courthouse in

the City of New York, on the twenty-eighth

day of April nineteen hundred and eighty.

HONORABLE IRVING R. KAUFMAN,

Chief Judge.

HONORABLE JAMES L. OAKES,

Circuit Judge.

HONORABLE CHALRES H. TENNEY,

District Circuit Judge, sitting by designa-

tion.

WIGGINESS, INC., SPARATCUS SPA, INC., LEA

FACILITIES, INC., AL SIGELOW, d/b/a GREEN-

WOOD ENTERPRISES, NEW WAVE SOCIAL CLUB,

PRIMERO CONSTRUCTION CORP.,

Plaintiffs-Appellants,

Ve

IRWIN FRUCHTMAN, INDIVIDUALLY AND AS

COMMISSIONER OF THE DEPARTMENT OF

BUILDINGS OF THE CITY OF NEW YORK, ALLEN

SCHWARTZ, INDIVIDUALLY AND AS CORPORATION

COUNSEL OF THE CITY OF NEW YORK, ROBERT

MCGUIRE, INDIVIDUALLY AND AS POLICE

COMMISSIONER OF THE CITY OF NEW YORK,

AND EDWARD TRICOMI,

Defendants~-Appellees.

2a

Appeal from the United States District

Court for the Southern District of New

York.

This cause came to be heard on the tran-

script of record from the United States

District Court for the Southern District

of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that

the District Court is directed to retain

jurisdiction over the claims raised by

appellant Primero Construction Corp. pend-

ing a reasonable opportunity for a state

court adjudication. See Railroad Commis-

sion v. Pullman Co., 312 U.S. 496 (1941);

Bellotti v. Baird, 428 U.S. 132, 146-47

(1976). The judgment is otherwise affirmed.

IRWIN R. KAUFMAN, Chief Judge.

JAMES L. OAKES, Circuit Judge.

CHARLES H. TENNEY, District

Judge.

3a

APPENDEX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

WIGGINESS, INC., SPARTACUS

SPA, INC., LEA FACILITIES

INC., AL SIGELOW d/b/a :

GREENWOOD ENTERPRISES, NEW

WAVE SOCIAL CLUB, INC., :

and PRIMERO CONSTRUCTION

CORP., :

Plaintiffs. OPINION

-~against- "79 Civ.5675(RJW)

IRWIN FRUCHTMAN, individ- :

ually and as COMMISSIONER

OF THE DEPARTMENT OF :

BUILDINGS OF THE CITY OF

NEW YORK, ALLEN SCHWARTZ, :

individually and as

CORPORATION COUNSEL OF

THE CITY OF NEW YORK,

ROBERT MCGUIRE, individ-

ually and as POLICE

COMMISSIONER OF THE CITY

OF NEW YORK, and EDWARD

TRICOMI,

Defendants.

4a

APPEARANCE

KASSNER & DETSKY, P.C.,

122 East 42nd Street

New York, New York 10168

Attorneys for Plaintiffs

HERBERT S. KASSNER, ESQ.

Of Counsel

ALLEN G. SCHWARTZ

Corporation Counsel

100 Church Street

New York, New York 10007

Attorney for Defendants

JOHN W. RUSSELL, ESQ.

Of Counsel

5a

WARD, J.

In this action, plaintiffs seek to

enjoin certain officials of the City of

New York from enforcing the city's zoning

ordinance regulating adult physical cul-

ture establishments. They also ask this

Court to declare the ordinance invalid as

violating the United States Constitution,

title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. Sections 2000a et.

seg., and the Human Rights Law of the State

Of New York, N.Y. Exec. Law Sections 290-

301. Jurisdiction is based on 28 U.S.C.

Section 1331 and 1343(3) and the doctrine

of pendent jurisdiction.+

Plaintiffs now move pursuant to Rule

65 Fed. R. Civ. P., for a preliminary in-

junction enjoining enforcement of the adult

physical culture establishment ("APCE")

ordinance pending the outcome of this

litigation. Defendants, opposing plain-

tiffs' motion, cross-move under Rule 12

6a

(b) (6), Fed. R. Civ. P., to dismiss plain-

tiffs' action for failure to state a claim

upon which relief can be granted. For

the reasons hereinafter stated, plaintiffs'

motion is denied and defendants' cross-

motion is granted in part and denied in

part.

Wigginess Inc., ("Wigginess"), and

Spartacus Spa, Inc. ("Spartacus"), two New

York corporations, operate “leisure spas"

on East Thirty-sixth and East Fifty-fifth

Streets, respectively, in New York City's

Borough of Manhattan. These two spas are

staffed by "hostesses" and "attendants,"

nearly all of whom are female, and cater

solely to a male clientele. The Wigginess

and Spartacus spas offer sauna and bath

facilities.

Lea Facilities, Inc. ("Lea"), a

not-for-profit corporation organized under

New York law, operates a "health club"

on East Twenty-second Street in Manhattan.

7a

Catering primarily to males, Lea employs

women exclusively as the hostesses and

bath attendants in its health club. The

only male employees at the Lea club are

management personnel. This plaintiff's

Club has a gym, a swimming pool, sauna

facilities, locker rooms and showers. Al

Sigelow, the president of Lea, also oper-

ates a “leisure spa" on Manhattan's West

Forty-sixth Street. This spa is equipped

with showers and baths and, like Lea, em-

ploys only women as hostesses and bath

attendants.

New Wave Social Club, Inc. ("New

Wave"), like Lea a not-for-profit corpor-

ation organized under New York law, is a

"swingers club" located on West Fifty-

fifth Street in Manhattan. New Wave claims

to have only two employees, a receptionist

and a locker room attendant, and describes

itself as a private club where "members

8a

exercise a minimum of sexual self-restraint

in pursuit of a common desire to enjoy

themselves and each others [sic] company

without repressions or inhibitions."

Primero Construction Corporation

("Primero") is a New York corporation

which holds a lease on premises at West

Forty-fourth Street in Manhattan. The

City Buildings Department has refused to

issue Primero a building permit to con-

struct what Primero claims will be resi-

dential apartments on the third, fourth

and fifth floors of the premises. The

Buildings Department claims that there

are a number of reasons why this permit

was denied but admits that one reason is

the expectation on city officials' part

that the premises would not be used for

residential apartments but for an APCE.

Apparently the first two floors of the

building currently house a swingers club

9a

known as Xtazy, which the City believes

is run by Fred Fredericks, the president

of Primero.?

New Wave has been issued two orders

by the Buildings Department alleging vio-

lations of the APCE ordinance. The other

five plaintiffs, with the above-noted ex-

ception of Primero, have as yet received

no notification from city officials that

the city considers them in violation of

the ordinance.

The named defendants are the New

York City officials charged with enforcing

the APCE zoning ordinance. Defendant

Edward Tricomi is a City Buildings Inspec-

tor assigned to the Buildings Department's

Midtown Manhattan Enforcement Unit.

On November 16, 1978, the New York

City Board of Estimate enacted into law

the City Planning Commission's proposal

to amend the City's Zoning Resolution to

10a

prohibit future APCEs in the entire City

of New York and to require the amortiza-

tion of all existing APCEs within one

year. Section 12-10 of the amended Zon-

ing Resolution defines APCE as follows:

An "adult physical culture estab-

lishment, club or business by

whatever name designated which

offers oradvertises 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.

The following uses shall not be

included within the definition

of an adult physical culture estab-

lishment:

(1) establishments which rou-

tinely provide such services

by a licensed physician, a

licensed chiropractor, a

licensed osteopath, a lic-

ensed practical nurse or a

registered professional

nurse;

(2) electrolysis treatment by a

licensed operator of electro-

lysis equipment;

(3) continuing instruction in

martial or performing arts

or in organized athletic

activities;

lla

(4) hospitals, nursing homes,

medical clinics or medical

offices; and

(5) barbershops or beauty par-

lors which offer massage to

the scalp, the face, the neck

or shoulders only.

Section 52-76 of the Resolution requires

that:

In all districts [i.e., the entire

city] any adult physical culture

establishment, unless subject to

an earlier termination requirement

contained in this Resolution, shall

terminate not later than one year

after the effective date of this

provision and thereafter the space

formerly occupied by such use shall

be used only for a conforming use.

Plaintiffs claim the APCE defini-

tion is vague and overbroad. They contend

that in prohibiting APCEs the zoning ordin-

ance effectively “proscribes crossexual

[sic] touching in the entire City of New

York" and thus violates constitutionally

protected rights of privacy and associa-

tion.

Plaintiffs also argue that the or-

dinance violates the due process clause by

12a

interfering with the allegedly fundamental

right of plaintiffs and their employees

to work in the common occupations of the

community. Maintaining that the require-

ment that no establishment offer massages

or similar treatment to members of the op-

posite sex would force them to hire and

discharge employees on the basis of sex,

plaintiffs Wigginess, Spartacus, Lea and

Sigelow claim the ordinance violates the

equal protection clause and stands in con-

travention of federal statutory provisions

prohibiting sex-based employment discrim-

ination. The Court finds that each of the

above contentions is without merit.

In addition, plaintiffs argue that

the one-year amortization period prescribed

by the ordinance for termination of all

nonconforming APCE uses is so unreasonably

short that it constitutes a taking of

private property without just compensation

13a

in violation of the Fifth Amendment. Al-

though the Court entertains serious doubt

that plaintiffs will be able to succeed

on the merits of this argument, the ques-

tion ‘whether it is reasonable to allow a

maximum of only one year to APCEs to con-

tinue their nonconforming uses involves

issues of fact and should not be decided

On a motion to dismiss. Provided plain-

tiffs Wigginess, Spartacus, Lea, Sigelow

and New Wave establish the standing to

challenge the amortization period, 4 the

Court will determine after appropriate

fact-finding proceedings whether the amcer-

tization period can be constitutionally

applied.”

Article III of the Constitution

limits the jurisdiction of federal courts

to cases Or controversies.

14a

Federal courts have no power per

se to declare statutes unconstitu-

tional. .. . The constitutional

requirement of a justiciable contro-

versy is met only where [a] plain-

tiff has sustained, or is in imme-

diate danger of sustaining, some

direct injury, as a result of which

there arises an honest and active

antagonistic assertion of rights.

- « « There must be a genuine

threat of enforcement of a disputed

state ... statute before a case or

controversy involving that statute

may be said t@ exist.

t

St. Martin's Press, Inc. v. Carey, 605 F.

2d 41, 44 (2d Cir. 1979) (citations omitted).

Only plaintiffs New Wave and Primero have

alleged that the City has taken some en-

forcement action against them. New Wave

has been issued two violation orders, and

Primero has been denied a building permit

because, inter alia, the city suspects

Primero's proposed building renovation is

for the purpose of establishing an APCE.

The other plaintiffs' only "injury in fact,"

Association of Data Processing Service

Organizations, Inc. v. Camp, 397 U.S. 150,

15a

152 (1970), is the fear that they will be

closed after summary proceedings in the

courts of New York State. They have been

issued no notice of violations and have

wensivet no threats of prosecution from

city officials.

Defendants have moved to dismiss

plaintiffs' complaint for failure to state

a claim upon which relief can be granted.

In reviewing the sufficiency of a complaint

in the context of such a motion, the Court

must “treat all of the well-pleaded allega-

tions of the complaint as true," Miree v.

DeKalb County, 433 U.S. 25, 27 n.2 (1977),

and give plaintiffs the benefit of any

facts that could possibly be proved to

support their claims. George C. Frey Ready

Mixed Concrete, Inc. v. Pine Hill Concrete

Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977).

Viewing the face of the complaint and re-

sOlving all doubts in plaintiffs' favor,

the Court finds that the establishments

l6a

run by plaintiffs Wigginess, Spartacus,

Lea and Sigelow fall within the definition

of APCE and are thus subject to prosecu-

tion for zoning violations under the or-

dinance. The City gives no indication

that it does not intend to enforce the

APCE prohibition vigorously. It is at

least arguable, therefore, that each of

the plaintiffs here has alleged "Such a

personal stake in the outcome" of

this action to warrant the invocation

of federal court jurisdiction. Warth v.

Seldin, 422 U.S. 490, 498 (1975) .®

Fe

The Court need not determine at

this juncture whether plaintiffs have con-

Clusively established standing to chall-

enge the APCE zoning ordinance. Even

assuming plaintiffs have standing to liti-

gate this challenge, all of plaintiffs'

Claims, with the exception of the conten-

4

17a

tion that the APCE amortization period

violates the taking clause of the Fifth

Amendment, must be dismissed on the mer-

its. Moreover, as none of the claims

raised by Primero can withstand defend-

ants' motion to dismiss, Primero's action

is dismissed in its entirety.

A

Primero does not now operate an

APCzt and thus is not affected by the one-

year amortization requirement for noncon-

forming uses. The City Building Depart-

ment's denial of Primero's permit is sub-

ject to administrative review and, if nec-

essary, judicial scrutiny under Article 78

of the N.Y. CPLR. This Court can only

assume the administrative agencies of the

City of New York and the courts of New

York State will apply the zoning ordinance

in accordance with the United States Con-

stitution. The ordinance is not unconsti-

18a

tutional on its face and, this Court be-

lieves, can be construed by the state

courts to eliminate any constitutional

issue. District Court "abstention is

appropriate where an unconstrued state

statute is susceptible of a construction

by the state judiciary ‘which might avoid

in whole or in part the necessity for

federal constitutional adjudication,

or at least materially change the nature

of the problem.'" Bellotti v. Baird, 428

U.S. 132, 146-147 (1976). See also St.

Martin's Press, Inc. v. Carey, supra, 605

F.2d at 44 n. 2. It is not this Court's

role to review zoning decisions made by

local administrative officials.

This litigation is not the first

instance in which constitutional claims

have been made against ordinances and

19a

statutes prohibiting massages and similar

treatment administered to persons of the

Opposite sex. Statutory proscriptions

outlawing opposite-sex massages have been

enacted by both state and local govern-

ments and, with no significant exception,

have all withstood constitutional attack.

On four recent occasions lower court rul-

ings upholding such laws have been ap-

pealed to the Supreme Court and on each

of these occasions the Court has dismissed

the appeals because the cases failed to

raise a substantial federal question.

City of Indianapolis v. Wright, 371 N.E.

2d 1298 (Ind.), appeal dismissed for want

of substantial federal question, 439 U.S.

804 (1978); Smith v. Keator, 285 N.C. 530,

206 S.E.2d 203, appeal dismissed for want

of substantial federal question, 419 U.S.

1043 (1974); Rubenstein v. Township of

Cherry Hill (N.J. Sup. Ct., unreported,

20a

Jan. 29, 1974); appeal dismissed for want

of substantial federal question, 417 U.S.

963 (1974); Kisley v. City of Falls Church,

262 Va. 693, 187 S.E.2d 168, appeal dis-

missed for want of substantial federal

question, 409 U.S. 907 (1972).

The Supreme Court in Hicks v.

Miranda, 422 U.S. 332, 344 (1975), ex-

plained that its dismissal of an appeal

for want of a substantial federal ques-

tion is an adjudication on the merits.

It is for the lower courts to ascertain

"the reach and content of [these] summary

actions," id. at 345 n.14, keeping in mind

that summary affirmances and dismissals by

the Supreme Court "must in each case be

analyzed carefully in order to discover

what issues were actually before the

Court." Mercado v. Rockefeller, 502 F.

2d 666, 673 (2d Cir. 1974), cert. denied,

420 U.S. 925 (1975). Although such sum-

2la

Mary actions "reject the specific chal-

lenges presented in the statement of jur-

isdiction and. ... prevent lower courts

from coming to opposite conclusions on

the precise issues presented and neces-

sarily decided" below, they do not adopt

the reasoning of the decision from which

appeal to the Supreme Court is taken.

Mandel v. Bradley, 432 U.S. 173, 176

(1977) (per curiam).

City of Indianapolis v. Wright,

Supra, is the most recent case challeng-

ing the constitutionality of an ordinance

prohibiting opposite-sex massages to be

dismissed by the Supreme Court for want of

a substantial federal question. The

Indiana Supreme Court in Wright had re-

jected the contention that an Indianapolis

Ordinance prohibiting, inter alia, the ad-

ministering of any massage to a person of

the opposite sex violated the due process

22a

and equal protection clauses of the Four-

teenth Amendment. The Wright court con-

sidered the earlier Supreme Court dismis-

sals in Smith v. Keator, supra, Rubenstein

v. Township of Cherry Hill, supra, and

Kisley v. City of Falls Church, supra,

dispositive of all Wright plaintiffs'

claims that the similar Indianapolis or-

dinance prohibiting opposite-sex massages

was unconstitutional. ’

The North Carolina court in Smith

v. Keator saw no unconstitutional sex dis-

crimination in Fayetteville's ordinance

making it unlawful for any massagist to

treat a person of the opposite sex. When

asked on appeal to review that determina-

tion, the Supreme Court agreed, implicitly

ruling in its dismissal for want of a sub-

stantial federal question that the ordin-

ance did not unconstitutionally discrim-

inate on the basis of sex in violation

23a

of the equal protection clause. ®

The appeals from the New Jersey

decision in Rubenstein v. Township of

Cherry Hill, supra, and from the Virginia

ruling in Kisley v. City of Falls Church,

supra, had also presented the Court with

equal-protection questions regarding the

constitutionality of proscriptions against

opposite-sex massages. As noted above,

the Supreme Court saw no substantial fed-

eral question raised by either the Ruben-

stein or the Kisley appeal. The appeal

in Rubenstein raised the statutory ques-

tion whether the Cherry Hill ordinance

was "repugnant" to the Civil Rights Act

of 1964,” and the Kisley appeal putting

Massage establishments out of business,

constituted an unconstitutional depriva-

tion of property without due process of

10

law.

Other courts have followed these

24a

summary decisions and rejected constitu-

tional challenges to similar ordinances

prohibiting opposite-sex massages. See

Tomlinson v. Mayor of Savannah, 543 F.2d

(5th Cir. 1976); Hogge v. Johnson, 526 F.

2d 833 (4th Cir. 1975), cert. denied, 428

U.S. 913 (1976); Colorado Springs Amuse-

ments, Ltd. v. Rizzo, 524 F.2d 571 (3d

Cir. 1975), cert. denied, 428 U.S. 913

(1976); Stratton v. Drumm, 445 F. Supp.

1305 (D. Conn. 1978). Cf. Pollard v.

Cockrell, 578 F.2d 1002, 1010-1011 (5th

Cir. 1978) (city ordinance regulated but

did not prohibit opposite-sex massages).

For example, the Fifth Circuit in Tomlin-

son found that the Supreme Court's summary

ruling foreclosed any challenge to a

Savannah Ordinance prohibiting opposite-

sex massages. The plaintiffs in Tomlinson

had challenged the Savannah ordinance

25a

as an abuse of the police power,

as an arbitrary restriction of a

supposedly due process-protected

right to operate a legitimate

business, and as a violation of

equal protection in that it (1)

"irrationally" distinguishes be-

tween heterosexual massages and

rub-downs where the customer

and massagist are the same sex,

and (2) unnecessarily burdens

their constitutionally "funda-

mental" right to engage ina

legitimate business.

543 F.2d at 571. The Tomlinson plaintiffs

also argued that they had

standing to assert their employ-

ees' and customers' alleged

rights of privacy impaired by the

Ordinance, and their employees'

potential equal protection claim

that the ordinance establishes

a gender-dependent classifica-

tion that cannot withstand the

intensive, albeit not "strict,"

scrutiny to which sex-specific

statutes are subjected.

Id. Passing on a similar ordinance, the

Fourth Circuit in Hogge v. Johnson found

that the Court's dismissal in Kisley v.

City of Falls Church, supra, precluded

any claim that the ordinance violated

26a

the Fourteenth Amendment's equal protec-

tion clause. Hogge v. Johnson, supra,

526 F.2d at 835. And in Colorado Springs

Amusements, the Third Circuit, like the

Fifth Circuit in Tomlinson, saw no room

for argument that a Philadelphia ordinance

prohibiting opposite-sex massages uncon-

stitutionally discriminated on the basis

of sex and unreasonably abridged the right

to pursue a lawful occupation. Colorado

Springs Amusements, Ltd. v. Rizzo, supra,

524 F.2d at 576.

The binding precedents established

by the Supreme Court's summary actions up-

holding ordinances prohibiting opposite-

sex massages require this Court to dismiss

plaintiffs' claims that the New York City

Ordinance violates the due process clause

by interfering with the right to work and

discriminate on the basis of a How-

ever, the Supreme Court has yet to be pre-

sented directly with a challenge to the

27a

constitutionality of an ordinance such

as this where, as here, the parties claim

violations of rights of privacy and asso-

Ciation. It could be argued that in up-

holding ordinances prohibiting opposite-

sex massages in the face of broadside

attacks on their constitutionality the

Court necessarily decided such ordinances

present no constitutional problems what-

soever. This Court, however, believes

that to accept that argument would be to

give far too expansive an effect to sum-

mary dispositions. Summary actions taken

by the Supreme Court should be given the

narrowest possible interpretation consis-

tent with the Supreme Court's disposition

of the case in the context of the issues

raised on appeal.

Turning, then, to plaintiffs' pri-

vacy and association claims, the Court

28a

notes first, without so deciding, that as

Owners and operators of establishments

allegedly prohibited by the City ordin-

ance plaintiffs may well have standing to

assert that the ordinance violates pri-

vacy and associational rights of their

customers and club members. Craig v.

Boren, 429 U.S. 190, 194-97 (1976). Even

assuming standing, however, plaintiffs'

privacy and association arguments raise

no claims upon which relief can be granted.

The Supreme Court has never recog-

nized a right of privacy for activities

such as those carried on in plaintiffs'

leisure spas, swingers club and health

Clubs. In Paris Adult Theatre I v. Slaton,

413 U.S. 49, 65 (1973), the Court ex-

pressly refused to extend the privacy

rights it had recognized in Griswold v.

Connecticut, 381 U.S. 479 (1965) (martial

procreation decisions), and Stanley v.

Georgia, 394 U.S. 557 (1969) (possession

29a

of allegedly obscene material in one's

own home), to commercial enterprises.

The Court's reasoning in Paris Adult

Theatre I applies equally to Wigginess,

Spartacus and Sigelow's leisure spas, to

Lea's health club and to New Wave's swing-

ers club. The services of each of these

establishments are open by individual pur-

chase or by membership to the general

public.

It is also clear that freedom of

association does not apply to the acti-

vities in question here. That constitu-

tional guarantee has been judicially de-

rived by implication from the express

guarantees of the First Amendment and is

therefore limited to activities involving

speech, press, petition and assembly.

See, e.g., Buckley v. Valeo, 424 U.S. l,

15 (1976), NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449, 460 (1958); and

L. Tribe, American Constitutional Law

30a

Section 12-23 (1978).

IIl

In contrast to the many ordinances

prohibiting opposite-sex massages enacted

elsewhere, the New York City ordinance

uses zoning to prohibit the operation of

establishments offering or equipped to

offer opposite-sex massages rather than

directly proscribing such massages. Al-

though plaintiffs contend that this dis-

tinguishes the instant case, the Court

finds this to be a distinction without a

difference. Land-use regulation to pro-

tect the health, safety, morals or wel-

are of a community is a constitutionally

valid use of states police power. Village

of Euclid v. Ambler Realty Co., 272 U.S.

365 (1926). It makes no constitutionally

significant difference that New York City

has chosen to prohibit opposite-sex mas-

sages through land-use regulation instead

3la

of some other regulatory means. The City's

regulatory scheme need only bear some

rational relation to the City's legiti-

mate interest in regulating massage estab-

lishments.

Subject to the specified exceptions

noted above, the zoning ordinance pro-

hibits the operation of any establishment

"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."

The definition of APCE, plaintiffs argue,

is so broad that it renders the ordinance

unconstitutional. To illustrate their

contention, plaintiffs maintain that the

breadth of the APCE definition enables

the City to block even the construction

of residental apartments (as allegedly

done in Primero's case) because apartments

can conceivably house aPcEs.?7 The Court

recognizes that without a limiting con-

se.

32a

struction the ordinance could possibly

be read to apply to establishments in

which there would be none of the opposite-

sex massaging the City seeks to prohibit.

Arguably this would subject the ordinance

to constitutional attack as irrational.

But that situation is not before this

Court. The Wigginess, Spartacus, Sigelow

and Lea operations admit that they pro-

vide opposite-sex massages, and New Wave

by design offers facilities for possible

massaging by club members of the oppo-

site sex. The ordinance can constitu-

tionally regulate the activities of the

plaintiffs in this ae:*” Plaintiffs

here have no standing to claim the ordin-

ance unconstitutionally governs the con-

duct of others .t4

IV

Plaintiffs Wigginess, Spartacus, Lea

and Sigelow claim the APCE zoning ordinance

33a

will require them to discriminate in em-

ployment on the basis of sex. Because

nearly all of their patrons are male, they

argue, they will be forced to discharge

female massagists and thereby subject

themselves to liability under Title VII

of the Civil Rights Act of 1964 ("the

Act"), as amended, 42 U.S.C. Sections

2000a et. seg. This inconsistency be-

tween the local enactment and federal

statutory law, these plaintiffs contend,

requires the Court to declare the city

ordinance invalid under the supremacy

LS

clause. The Court cannot agree.

Section 703 (a) of the Act, 42

U.S.C. Sections 2000e-2(a), makes it un-

lawful for an employer

{1) to fail or refuse to hire to

discharge any individual, or

otherwise to discriminate

against any individual with

respect to his compensation,

terms, conditions, or privi-

leges of employment, because

of such individual's race,

34a

color, religion, sex, or

national origin; or

(2) to limit, segregate, or class-

ify his employees or applic-

ants for employment in any

way which would deprive or

tend to deprive any individual

of employment opportunities or

otherwise adversely affect his

status as an employee, because

of such individual's race,

color, religion, sex, or na-

tional origin.

Apparently it is plaintiffs' argument that

the facially neutral city ordiance bann-

ing opposite-sex massages in fact conflicts

with Section 703(a) because its effect

wili be to discriminate against female

, 16

massagists.

Plaintiffs argue that because their

clientele is almost exclusively male the

Ordiance will force them to "refuse to

hire [and] to discharge" female massa-

gists, in violation of Section 703(a) (1).

The ordinance, however, requires plain-~

tiffs neither to discharge nor to refuse

to hire anyone. It only makes it unlawful

35a

to operate certain establishments. The

result of plaintiffs' ceasing an unlaw-

ful operation may be to curtail employ-

ment opportunities for female massagists,

but this surely does not preclude the

City's exercising its police power to

prohibit practices it finds harmful to

the public's health, safety, welfare or

morals. Aldred v. Duling, 538 F.2d 637,

638 (4th Cir. 1976) (per curiam).

Although Wigginess, Spartacus,

Sigelow and Lea do not specifically con-

tend that the City ordinance conflicts

with the Section 703(a) (2) of the Act, any

argument they might make under this Sec-

tion would have to be similar to their

contentions under Section 703(a) (1) and,

in this Court's opinion, would warrant

the same response. The Court in Stratton

v. Drumm, supra, 445 F. Supp. at 1312,

addressing an East Hartford, Connecticut,

ordinance prohibiting opposite sex

oe

.

36a

massages, saw this differently. Opera-

tors of East Hartford massage establish-

ments would have "to limit, segregate, or

classify [their] employees or applicants

for employment" to ensure no massagist

treated someone of the opposite sex, the

Stratton court reasoned, and as a result

prevent male and female massagists from

competing for the same work opportunities.

The court in Stratton concluded that this

would amount to a violation of Section

703(a) (2). Accord, Ciancolo v. Members

of City Council of Knoxville, 376 F.

Supp. 719, 722 (E.D. Tenn. 1974). This

Court respectfully disagrees. Ordinances

prohibiting opposite-sex massages make

it unlawful to provide such treatment and

thus eliminate altogether the employment

opportunity of massaging persons of the

opposite sex. Section 703(a) (2) "cannot

be read to foreclose the enactment of or-

dinances which have the effect of making

37a

unlawful conduct which may not have been

unlawful when Title VII was enacted."

Aldred v. Duling, supra, 538 F.2d at 638.

This is not a situation where em-

ployment standards such as height and

weight requirements, though facially neu-

tral, have the effect of bringing about a

discriminatory pattern of hiring and fir-

ing because of physiological differences

between men and women. Cf. Dothard v.

Rawlinson, 433 U.S. 321, 329 (1977). Nor

can plaintiffs argue, as they attempt to

do, that female massagists are discrimina-

ted against because their male clientele

prefers to receive treatment from women.

Employers may not discriminate on the

basis of their customers' preferences.

Diaz v. Pan American World Airways, Inc.,

442 F.2d 385, 389 (5th Cir.), cert. denied,

404 U.S. 950 (1971). See 29 C.F.R. Section

1604.2(a) (1) (444) (1979) 2?

38a

V

Plaintiffs have not demonstrated

that preliminary injunctive relief is

appropriate in this instance. Not having

established that they will suffer irre-

parable injury from denial of provisional

injunctive relief, plaintiffs cannot sat-

isfy either the Second Circuit's two

alternative tests.

Preliminary injunctive relief in

this Circuit calls for a showing

of "(a) irreparable harm and (b)

either (1) 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 to-

ward the party requesting the

preliminary relief."

Jack Kahn Music Co. v. Baldwin Piano &

Organ Co., 604 F.2d 755, 758 (2d Cir.

1979).

It is asserted by plaintiffs that

39a

their business will be closed by injunc-

tion proceedings instituted by defendants

in the Courts of New York State unless de-

fendants are enjoined from proceeding to

enforce the APCE ordinance. If they are

closed in this manner, plaintiffs claim,

they will be driven into insolvency and

their operations will be fatally and irre-

parably injured. Plaintiffs, however,

have presented nothing to this Court to

support these contentions. Unsubstan-

tiated allegations of injury cannot pro-

vide the basis for establishing the irre-

parable harm required for an injunction

to issue.

The Court, moreover, does not be-

lieve plaintiffs are likely to succeed

on the merits of their one claim now re-

maining for trial. It is unlikely that,

given the nature of APCE operations and

the city's strong interest in regulating

40a

these establishments, plaintiffs will be

able to demonstrate that the one-year

amortization period is unreasonable, es-

pecially since the prohibition of APCEs

does not amount to a deprivation of all

reasonable uses of plaintiffs' property.

VI

The Court has not considered

plaintiffs' claims under the New York

Human Rights Law, N.Y. Exec. L. Sections

290-301, and does not have before it any

claims plaintiffs might make under the

New York State Constitution. Having dis-

missed all but one of plaintiffs' federal

claims, the Court, in exercising its dis-

cretion under United Mine Workers of

America v. Gibbs, 383 U.S. 715, 726

(1966), believes it best to léave plain-

tiffs' state claim to the New York Court

to adjudicate.

4la

Accordingly, plaintiffs' application

for a preliminary injunction is denied,

and defendants' cross-motion to dismiss

is granted with respect to all of plain-

tiffs' claims except those of Wigginess,

Spartacus, Sigelow, Lea and New Wave

alleging the one-year amortization period

for APCEs is an unconstitutional taking

of property with compensation. These

five plaintiffs and the City defendants

are to prepare to proceed to trial on this

issue. All of Primero's claims are dis-

missed.

Settle order on notice.

DATED: New York, New York

December 28, 1979

ROBERT J. WARD

U.S -D.J.

*'

42a

FOOTNOTES

Plaintiffs also claim jurisdic-

tion under the Declaratory Judg-

ment Act, 28 U.S.C. Sections

2201-2202, and Section 701 of the

Civil Rights Act, 42 U.S.C. Sec-

tion 2000e. The Declaratory

Judgment Act, however, does not

confer subject matter jurisdic-

tion on the District Courts but

Only provides a remedy where

jurisdiction exists independently.

Skelly Oil Co. v. Phillips Petro-

leum Co., 339 U.S. 667, 671-672

(1950). Moreover, Civil Rights

Act Section 701 has nothing to do

with jursidiction; it merely de-

fines terms for the purposes of

title VII. Although Section 706

(£) (3) of the Act, 42 U.S.C.

Section 2000e-5(f) (3), gives the

district courts jurisdiction

over actions brought under title

VII by aggrieved persons alleging

employment discrimination, it does

not establish district court jur-

isdiction over suits such as this

to declare state statutes invalid

under title VII's preemption pro-

vision, Section 708, 42 U.S.C.

Section 2000e-7.

Plaintiffs ask the Court to strike

down a New York City ordinance,

but they have not named the city

as a defendant. In Ellentuck v.

Klein, 570 F.2d 414, 428 (2nd

Cir. 1978), the Court of Appeals

found itself without subject mat-

ter jurisdiction to consider a

43a

Claim seeking to annul a city en-

actment because the City of New

York W&S not named as a defendant.

The Court recognizes, however, that

Ellentuck was decided before the

Supreme Court in Monell v. Department

of Social Services of the City of N.Y.,

436 U.S. 658 ~34 r

held that a local government can be

sued directly under 42 U.S.C. Section

1983 for declaratory relief where

action under a municipal ordinance is

alleged to be unconstitutional. It

would have done the Ellentuck plain-

tiffs no good to amend their complaint

to name New York City as a defendant

because under pre-Monell law a local

government could not sued directly

under Section 1983. However, because

Monell authorizes Section 1983 ac-

tions against substate government

entities for declaratory relief,

plaintiffs need only amend their com-

plaint and name the city as a defend-

ant to cure this technical pleading

deficiency. To enable plaintiffs to

pursue their one constitutional claim

that has withstood defendants’ motion

to dismiss, plaintiffs will be given

leave to amend their complaint to add

the city as a named defendant.

Pendent jurisdiction provides the

basis for the Court's jurisdic-

tion over plaintiffs' title VII and

state-law claims. Regarding the

availability in this case of federal-

question jurisdiction under 28 U.S.C.

Section 1331, see n.15 infra.

>

44a

Affidavit of Edward Sommerfeld,

p.2 (October 15, 1979).

See affidavits of John W. Russell,

Paragraphs 42-44 (November 9,

1979), and Fred Fredericks

(October 16, 1979). The City has

not said whether it believes Xtazy

to be an APCE.

For the reasons noted infra.

Primero's claims aré dismissed

in-their entirety.

The use of the police power to

terminate nonconforming used has

long been recognized as constitu-

tionally permissible. Hadacheck

v. Sebastian, 239 U.S. 395 (1915).

"In ascertaining the reasonable

period during which an owner of

property must be allowed to con-

tinue a nonconforming use, a bal-

ance must be found between the

social harm [of a continued use]

and private injury." Harbison

v. City of Buffalo, 4 N.Y. 2d 553,

562, 176 N.Y.S. 2d 598, 152 N.E.

2d 42 (1958). See also Modjeska

Sign Studios, Inc. v. Berle, 43

ar 2d 468, 479, 402 N.Y.S. 2d

359, 373 N.E. 2d 255 (1977), dis-

missed for want of substantia

federal question, 439 U.S. 809

- The Court is not unmind-

45a

ful that the New York courts have

on two occasions upheld the one-

year amortization period for

APCEs. Commissioner of Dep't of

Buildings of City of N.Y. v.

Bocchino, N.Y.L.J., June 29, 1977,

at 14, Gol. 1 (Sup. Ct. N.¥. CoO-),

aff'd mem., 59 A.D. 2d 1069, 399

N.Y.S.2d 829 (lst Dept. 1977);

Commissioner of Dep't of Build-

ings of City of N.Y. v..

Carpenter, N.Y.L.J., June 30,

i377, at 12, col. 5 (Sup. Ct. N.Y.

Co. 1977),aff'd mem., 61A.D. 2d

598, 402 N.Y.S. 2d 701 (lst Dept.

1978). Both Bocchino and Carpen-

ter, however, involved the issu-

ance of preliminary injunc-

tions, and none of the plaintiffs

here was a party in those cases.

Accordingly, the Court is not

prepared at this stage to give

any collateral estoppel effect to

those decisions. However, defend-

ants are free to plead the defense

of collateral estoppel in their

answer and pursuant to 28 U.S.C.

Section 1738 to argue this defense

in further proceedings.

Plaintiffs also satisfy the require-

ment that their interest lie "with-

in the zone of interest to be...

regulated by the statute...in

question." Association of Data

Processing Service Organizations,

Inc. v. Camp, supra 397 U.S. at

>

7 eS

46a

The Supreme Court was also pre-

sented by the appeal in Wright

with the question whether an or-

dinance outlawing opposite-sex

massages creates an unconstitu-

tional irrebuttable presumption

that such massages lead to illicit

sexual relations. See Statement

of Jurisdiction, summarized in

47 U.S.L.W. (BNA) 3157 (1978).

By dismissing the appeal for want

of a substantial federal ques-

tion the Court ruled there was no

such constitutional infirmity.

Statement of Jurisdiction, sum-

marized in 42 U.S.L.W. (BNA)

974).

Statement of Jurisdiction, sum-

marized in 42 U.S.L.W. (BNA)

). The precedential

effect of the Rubenstein dis-

missal on plaintiffs’ federal

statutory sex-discrimination

Claims is discussed at greater

length below. See n.16 infra.

Statement of Jurisdiction, sum-

marized in 41 U.S.L.W. (BNA)

3123 (1972).

Even in the absence of the pre-

cedents established by the Sup-

reme Court's summary actions,

this Court would find no reason

to permit plaintiffs to pursue

these constitutional claims on

the merits. The New York ordin-

47a

ance creates no invidiously dis-

criminatory sex-based classifica-

tion. Nor would the Court be pre-

pared to recognize any constitu-

tionally guaranteed fundamental

right to work in the common occupa-

tions of the community. Any such

fundamental right that may have been recog-

nized earlier "was derived solely

from substantive due process ca.es

which have been either discred-

ited or overruled." Pollard v.

Cockrell, supra, 578 F.2d at 1012.

State statutes regulating busi-

ness activity need only be ration-

ally related to a legitimate state

objective. This ordinance creates

no suspect classification and

affects no fundamental right, and

thus need not withstand strict

scrutiny. Williamson v. Lee

Optical of Oklahoma, Inc., 348

U.S. 483, 488 (1955). It would

not have been irrational for the

New York City Board of Estimate

to conclude that opposite-sex

massages lead to immoral conduct

or that such massages themselves

offend the public morality. MThis

Court will not substitute its

judgment for that of the city's

legislative body.

As noted earlier, the Court has

determined under the abstention

doctrine not to consider Primero's

claims.

13

14

15

48a

It is of course possible that the

City will not move against New

Wave if in fact New Wave does not

offer massages. The Court here

merely has assumed arguendo that

New Wave has standing to raise its

constitutional claims and only

decides that if New Wave's acti-

vities are of the nature described

in the ordinance the ordinance can

be constitutionally applied to New

Wave's establishment.

Cf. Broadrick v. Oklahoma, 413

U.S. OUL, 615 (L973). The over-

breadth doctrine applies only to

the government's regulation of

speech. Whatever else plaintiffs

may Claim this ordinance regulates,

it surely has no effect on freedom

of speech.

The Court questions whether sub-

ject matter jurisdiction under 28

U.S.C. Section 1331 is available

for plaintiffs' preemption claim,

even assuming Wigginess, Spartacus,

Lea and Sigelow could remedy the

complaint's current defect and

each allege a sufficient amount in

controversy. However, even though

plaintiffs' claim for declaratory

relief may not "arise under" the

provisions of title VII for the

purpose of Section 1331 jurisdic-

tion, because 28 U.S.C. Section

1343(3) confers jurisdiction on

the Court to consider plaintiffs'

16

49a

constitutional claims, the Court

can "hear as a matter of pendent

jurisdiction the claim of con-

flict between federal and state

[i.e., city] law." Hagans v.

Lavine, 415 U.S. 528 536 (1974).

Wigginess, Spartacus and Sigelow

have standing to assert their pre-

emption claim. It would appear

that Lea, however, does not, for

if, as Lea alleges, it is a not-

for-profit corporation, it would

not be subject to the requirements

of title VII. See Section 701(b),

42 U.S.C. Section 2000e(b).

Wigginess, Spartacus and Sigelow,

it should be noted, allege that

they regularly employ in excess

of fifteen employees.

In Rubenstein v. Township of Cherry

Hill, supra, the Supreme Court was

presented on appeal with the ques-

tion whether an ordinance prohibit-

ing opposite-sex massages was

"repugnant to [the] 1964 Civil

Rights Act and thus violative of

[the] Supremacy Clause." State-

ment of Jurisdiction, summarized

in 42 U.S.L.W. (BNA) 3637 (1974).

The Court's dismissal for want of

a substantial federal question --

to be given effect as a decision

on the merits under Hicks v.

Miranda, supra -- could be taken

as dispositive of plaintiffs title

VII claim here. -In Rubenstein,

however, the plaintiffs appar-

ently were not "employers" as —

defined in Section 701(b) of

> >

50a

the Act, see Stratton v. Drumm,

supra, 445 F. Supp at 1310, and

thus the federal-state conflict

in issue in Rubenstein could only

have arisen out of Section 1104

of the Act, 42 U.S.C. Section

2000h-4. Section 1104 provides

that no “provision of this Act

shall be construed as invalidat-

ing any provision of State law

unless such provision is incon-

sistent with any of the purposes

of this Act, or any provision

thereof." The csurt's dismissal

in Rubenstein could simply have

been predicated on a finding that

since the Rubenstein plaintiffs

were not Section 701(b) employers

the application of an opposite-

sex massage Ordinance to their

activities did not conflict with

any"purpose”" of the Act i1 vio-

lation of Section 1104. See

Stratton v. Drumm, supra.

For the purposes of this motion

to dismiss the Court has assumed

Wigginess, Spartacus, Sigelow and

Lea are Section 701(b) employers.

Consequently, their preemption

Claim is governed by Section 708,

42 U.S.C. Section 2000e-7, rather

than by Section 1104. Section

708 provides:

Nothing in this subchapter

shall be deemed to exempt or

relieve any person from any li-

ability, duty, penalty, or

punishment provided by any

present or future law of any

State or political subdivision

of a State, other than any such

law which purports to require

17

5la

or permit the doing of any act

which would be an unlawful em-

ployment practice under this

subchapter.

Defendants argue that even if the

ordinance violates Section 703(a)

the requirement that massagists

treat only persons of the same sex

constitutes a bona fide occupa-

tional qualification ("BFOQ")

under Section 703(e) (1), 42 U.S.C.

Section 2000e-2(e) (1). Although

it is recognized that "Section 703

(e) provides only the narrowest of

exceptions of the general rule

requiring equality of employment

Opportunities," Dothard v.

Rawlinson, supra, 433 U.S. at 333,

it is conceivable that the BFOQ

defense would be available to

Wigginess, Spartacus, Sigelow and

Lea in an action under Section

703(a). New York State, for ex-

ample, recognizes that sex may be

a BFOQ under its statutory counter-

part to title VII, N.Y. Exec. Law

Sections 290-301, in instances

"([w]here sex is a bona fide fac-

tor in terms of community stand-

ards of morality, e.g., a man to

work as an attendant in a men's

washroom; a woman to work as a

fitter in a girdle and brassiere

establishment." 3 Empl. Prac.

Guide (CCH) Paragraph 26,052 (B)

(2) (1977).

52a

APPENDIX C

BOARD OF ESTIMATE

CITY OF NEW YORK

Cal. 145.

Resolved, By the Board of Estimate,

pursuant to the provisions of Section 200

of the New York City Charter, that the

resolution of the City Planning Commis-

sion adopted on November 8, 1978 (Cal.

No. 16) reading as follows:

Resolved, By the City Planning

Commission that the Zoning Resolution of

the City of New York, effective as of

December 15, 1961, and as subsequently

amended, is further amended by changes

relating to various Sections concerning

the definition and prohibition of Adult

Physical Culture Establishments and re-

quiring the amortization of existing adult

physical culture establishments, estab-

lishing a new Board of Standards and

53a

Appeals special permit for all other phy-

scial culture or health establishments and

deleting the existing City-wide moratorium

on all physical culture or health estab-

lishments, as follows:

Matter in Bold Type is new:

Matter in brackets [ ], is old,

to be omitted:

Matter in italics is defined in

Section 12-10.

11-50 SEPARABILITY —

[(c) The provisions of amendment CP-23116

affecting Section 32-18, 83-03, 04-061,

94-062, 94-081, 99-031, 101-031, 12-10,

81-021 and 86-524 are an entirety: should

any portion be found unenforceable or in-

valid for any reason then this entire

amendment shall be null and void in its

entirety. No court of competent juris-

diction nor any administrative body may

apply any doctrine of separability or

severability to save any portion of amend-

54a

ment CP-23116 in the event any portion is

found unenforceable or invalid.]

12-10 DEFINITIONS

Adult Physical Culture Establishments

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 is part of if its services,

massages, body rubs, alcohol rubs, baths

Or other Similar treatment, by members

of the opposite sex. The following uses

shall not be included within the defini-

tion of an adult physical culture estab-

lishment:

(1) establishments which routinely

provide services by a licensed

physician, a licensed chiro-

practor, a licensed osteopath,

a licensed practical nurse or

a registered professional

nurse};

(2) electrolysis treatment by a

licensed operator of electro-

lysis equipment;

55a

(3) continuing instruction in

martial or performing arts or

in organized athletic activi-

ties;

(4) hospitals, nursing homes,

medical clinics or medical

offices; and

(5) barbershops or beauty parlors

which offer massage to the

scalp, the face, the neck or

shoulders only.

Chapter 2 Non-Conforming Uses

52-70 TERMINATION OF CERTAIN NON-CONFORMING

USES AFTER AMORTIZATION

52-76

Adult physical culture establishments

In all districts any adult physical culture

establishment, unless: subject to an earl-

ier termination requirement contained in

this Resolution, shall terminate not later

than one year after the effective date of

this provision and thereafter the space

formerly occupied by such use shall be used

only for a conforming use.