Appendix — Amsterdam Video, Inc. v. City of New York
Supreme Court brief1999
Ask Donna
What actually matters in this document.
Text
unreported
RACHEL HICKERSON, DEREK JONES, TY
MCCONNELL, and ELLIOT STAMLER,
Plaintiffs-Appellants,
V.
THE CITY OF NEW YORK, HON. RUDOLPH w.
GIULIANI, as Mayor of the City of New York, JOSEPH B.
ROSE, as Director of City Planning, Department of City
Planning of the City of New York, and GASTON SILVA, as
Commissioner of Buildings, Department of Buildings of the
City of New York, Defendants-Appellees,
TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT,
CENTER FOR THE COMMUNITY INTEREST,
BELLAIRE/BELL-VILL CIVIC ASSOCIATION, BNOS
ISRAEL GIRLS’ SCHOOL, BOWNE PARK CIVIC
ASSOCIATION, BRIARWOOD COMMUNITY
ASSOCIATION, BRONX COMMUNITY BOARD # 12,
BROOKLYN CIVIL COUNCIL, BROOKLYN TENANTS
COUNCIL, CARDINAL SPELLMAN HIGH SCHOOL,
COALITION OF UNITED RESIDENTS FOR A SAFER
ENVIRONMENT, COLLEGE POINT BOARD OF TRADE,
COMMITTEE FOR A BETTER AND SAFER NOSTRAND
AVENUE, COMMUNITIES OF MASBETH AND
DISTRICT 21 PRESIDENTS’ COUNCIL, CONGREGATION
BNAI SHLOIMA ZALMAN, CROWN HEIGHTS
TAXPAYERS AND CIVIC ASSOCIATION, DOUGLASTON
CIVIC ASSOCIATION, EAST MIDWOOD
NEIGHBORHOOD ASSOCIATION, COUNCILMEMBER
ANDREW ERISTOFF, GRAND CENTRAL PARTNERSHIP,
HOLLISWOOD CIVIC ASSOCIATION, HUDDE JUNIOR
HIGH SCHOOL PARENTS ASSOCIATION, JACKSON
la
HEIGHTS COMMUNITY DEVELOPMENT
CORPORATION, KINGS HIGHWAY DISTRICT
MANAGEMENT ASSOCIATION, KINGSWAY JEWISH
CENTER; LAWYERS’ COMMITTEE ON VIOLENCE,
MANHATTAN TERRACE CIVIC ASSOCIATION,
COUNCILMEMBER HELEN MARSHALL, MIDWOOD
CIVIC ACTION COUNCIL INC., NEW NORTHERN
BOULEVARD BUSINESS ASSOCIATION, NORTHERN
BOULEVARD MERCHANTS’ ASSOCIATION, 100-299
EAST 77TH STREET BLOCK ASSOCIATION, PROSPECT
PARK YESHIVA, QUEENS BRADDOCK CIVIC
ASSOCIATION, QUEENS VILLAGE CIVIC
ASSOCIATION, REAL ESTATE BOARD OF NEW YORK,
RESIDENTS AGAINST STREET PROSTITUTION,
ROSEDALE BLOCK ASSOCIATION, ROSEDALE CIVIC
ASSOCIATION, COUNCILMEMBER JOHN SABINI, 34TH
STREET PARTNERSHIP, UNITED CIVIC COUNCIL OF
QUEENS, UNITED COMMUNITY CIVIC ASSOCIATION,
COUNCILMEMBER ANTHONY WEINER, WEST 45TH
STREET BLOCK ASSOCIATION, WEST 47TH/WEST
48TH STREET BLOCK ASSOCIATION and WEST
90°S/WEST 100’S NEIGHBORHOOD COALITION,
Defendants-Respondents-
Intervenors-Appellees.
Docket No. 98-7269
July 9, 1998
A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by the
appellant, Rachel Hickerson, Derek Jones, Ty McConnell and
Elliot Stamler.
Upon consideration by the panel that decided the appeal, it
is Ordered that said petition for rehearing is DENIED.
2a
It is further noted that the suggestion for rehearing in banc
has been transmitted to the judges for the court in regular
active service and to any other judge that heard the appeal and
that no such judge has requested that a vote be taken thereon.
146 F.3d 99"
RACHEL HICKERSON, et al., Plaintiffs-Appellants,
Vv.
THE CITY OF NEW YORK, et al., Defendants-Appellees,
TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT,
CENTER FOR THE COMMUNITY INTEREST, et al.,
Defendants-Respondents-
Intervenors-Appellees.
+ * *
AMSTERDAM VIDEO INC., A & X ENTERTAINMENT
INC., d/b/a Playpen II, ADULT VIDEO, INC., ASCOT
SPACE AMUSEMENT, INC., d/b/a Ascot Theatre, BIG
APPLE CINEMAS INC., d/b/a Show Follies Theater, BRETT
DISTRIBUTORS, INC., d/b/a Media Distributors, CAPRI
CINEMA INC., CAPWELL ENTERTAINMENT, INC., d/b/a
Legz Diamond’s Playhouse, CHURCH STREET CAFE INC.,
d/b/a Baby Doll Lounge, COLLEGE PT. REST. CORP., d/b/a
Gallagher’s Il, CRAZY FANTASY VIDEO, INC., CUPID’S
TREASURES, INC., d/b/a Banana Video and Unicorn, DARA
DISTRIBUTORS INC., d/b/a Love Shack, DESIRE VIDEO
INC., E & A BOOKS, INC., E & A VIDEO AND
MAGAZINE INC., ED-MART BAR & GRILL INC., d/b/a
Penny Whistle, FOR THE PEOPLE THEATRES OF N.Y.,
INC., d/b/a Fair Theatre, FOUR KEYS ENTERPRISES, INC.,
d/b/a Hollywood Peepshows, FOURTEENTH ST.
“ The caption in this case is exactly the same as those of the federal court
cases previously set forth in this appendix, with one exception: this caption
includes the complete caption of the plaintiffs in the Amsterdam Video
matter.
4a
ENTERPRISES INC., d/b/a All Male Adult Video, FUN
CITY VIDEO CORP., G & D MERCHANDISE CORP., d/b/a
Peepland, GOTHAM EXHIBITOR INC., d/b/a Peep O Rama,
HELEN WOLFF LTD., d/b/a Come Again, I.S. SULTARS
INC., J & J TUMMY YUMMIES CORP., d/b/a Naked City,
JGJ MERCHANDISE CORP., d/b/a Peepland/Valentina’s II,
JHM VIDEO CORP., JUM OPERATING CORP., d/b/a
Peepland, JVR VIDEO CENTER INC., d/b/a Playground,
KINEMATICS MERCHANDISING & DISTRIBUTORS,
INC., d/b/a Kinematics, KISMA VIDEO, INC., L & T
VIDEO, INC., d/b/a Badlands Adult Video, MADELINE
D’ANTHONY ENT. INC., d/b/a Harmony Theatre,
MANHATTAN VIDEO INC., MARQUIS VIDEO INC., d/b/a
Marquis Video, MIRAGE PRODUCTIONS INC., d/b/a Love
Shack, MONTANA HOLDINGS INC., d/b/a Runway 69,
NAWAN ENTERTAINMENT INC., d/b/a Euro World,
NILUPUL VIDEO INC., N.R.S. VIDEO INC., NY VIDEO
INC., d/b/a Love Shack, PABON THEATRE CORFP., d/b/a
Eros Theatre, PEREGRINE ENTERPRISES, INC., d/b/a
Paradise Club, R.E.J.M., INC., d/b/a Big Top, RON BOB
PUB INC., d/b/a’ Gallagher’s, SAMI’S VIDEO
WAREHOUSE, d/b/a Warehouse on the Block, LTD,
SERENDIB VIDEO INC., d/b/a Serendib Video, SPH VIDEO
CORP., STAR DISTRIBUTORS, LTD, STATEWIDE VIDEO
INC., STEAM HEAT INC., STS VIDEO INC., d/b/a Adult
Video, SUEMAR VIDEO, INC., d/b/a Goodtime Video,
THIRD AVENUE ENTERTAINMENT INC., d/b/a XXX
Video, THUNDER VIDEO INC., TOWN VIDEO SALES,
INC., d/b/a Les Hommes Book Shop, VIDEO, VIDEO,
VIDEO, INC., VIDEO 30 OF QUEENS INC., d/b/a
Ecsxxxtasy Video, WEST VIDEO INC., ZIDEO VIDEO
INC., 21 ANN STREET CORP., d/b/a Ann Street Adult
Entertainment, 130 C STREET CORP., d/b/a Christopher
Street Book Shop, 155 VIDEO CENTER CORP., d/b/a
Peepworld, 300 BOOK CENTER, 303 W.42ND STREET
ENTERPRISES INC., d/b/a Show World, 323 CANAL ST.
5a
INC., 325 W. 45TH ST. REST. CORP., d/b/a Private Eyes,
35-30 38th St. Corp., d/b/a Cityscape, 412 8TH AVE. CORP.,
d/b/a Nude New York City, 45-08 VERNON BLVD. CORP.,
d/b/a Riverhead Inn, 603 VIDEO INC., 610 VIDEO STORE
INC., 691 8TH AVENUE CORP., 691 VIDEO CENTER
CORP., 693 VIDEO CORP., d/b/a TNL Video, 711
ASSOCIATES LTD., d/b/a Peepland, 729 6TH AVENUE
CORP., d/b/a Billy’s Topless, 733A CORP., d/b/a Video
Palace, 763 VIDEO STORE INC., 777-779 8TH AVE.
CORP., d/b/a Hollywood Twin, 81-22 BAXTER AVE.
LOUNGE INC., d/b/a ILDA’S PLACE Il,
Plaintiffs-Appellants,
v.
THE CITY OF NEW YORK, et al., Defendants-Appellees,
TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT,
CENTER FOR THE COMMUNITY INTEREST, et al.,
Defendants-Respondents-
Intervenors-Appellees.
Nos. 98-7269, 98-7270
UNITED STATES COURT OF APPEALS,
SECOND CIRCUIT
June 3, 1998
HERALD PRICE FAHRINGER, Lipsitz, Green, Fahringer,
Roll, Salisbury & Cambria, LLP, New York, NY (Erica T.
Dubno, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria,
LLP; J. Michael Murray, Berkman, Gordon, Murray & DeVan,
of counsel), for Plaintiffs-Appellants Amsterdam Video, Inc.,
et al.
6a
BETH HAROULES, New York Civil Liberties Union
Foundation, New York, NY (Arthur N. Eisenberg, Norman
Siegel, New York Civil Liberties Union Foundation, of
counsel), for Plaintiffs-Appellants Rachel Hickerson, et al.
LEONARD J. KOERNER, Office of the Corporation Counsel
of the City of New York, New York, NY (Michael D. Hess,
Corporation Counsel of the City of New York, Gabriel
Taussig, Elizabeth S. Natrella, of counsel), for
Defendants-Appellees.
FREDERICK A.O. SCHWARZ, JR., Cravath, Swaine &
Moore, New York, NY, for Defendant-Respondent-
Intervenor-Appellee Times Square Business Improvement
District.
WAYNE A. CROSS, Dewey Ballantine LLP, New York, NY,
for Defendants-Respondents-Intervenors-Appellees Center for
the Community Interest, et al.
Before: VAN GRAAFEILAND, MESKILL, and CABRANES,
Circuit Judges.
JOS A. CABRANES, Circuit Judge:
This case concerns an amendment to the Zoning Resolution
of the City of New York (the "Zoning Amendment")
regulating the zoning of "adult establishments," as defined by
the Zoning Amendment. The principal provisions of the
Zoning Amendment limit the permissible locations of adult
7a
establishments to non-residential districts* and require that
they be located--within the districts in which they are
permitted--at least 500 feet away from any school, day care
center, or house of worship; at least 500 feet from excluded
districts; and at least 500 feet from one another. Plaintiffs in
these consolidated cases are patrons and owners of adult
establishments within New York City who claim that the
Zoning Amendment violates their rights to free expression
under Article I, § 8 of the New York State Constitution and
the First Amendment of the United States Constitution. In a
case involving a different set of plaintiffs, we recently upheld
the Zoning Amendment against facial federal constitutional
challenges under the First Amendment and the Equal
Protection Clause cf the Fourteenth Amendment. See Buzzetti
v. City of New York, 140 F.3d 134, 1998 WL 130866 (2d
Cir. 1998).
The factual background of the Zoning Amendment is
detailed both in Buzzetti and in prior state and federal
decisions arising from the instant litigation, with which we
assume familiarity. See Hickerson v. City of New York, 997
F. Supp. 418, 1998 U.S. Dist. LEXIS 2635, 1998 WL 105583
(S.D.N.Y. 1998); Hickerson v. City of New York, 932 F.
Supp. 550 (S.D.N.Y. 1996); Stringfellow’s of New York, Ltd.
v. City of New York, 171 Misc. 2d 376, 653 N.Y.S.2d 801
(N.Y. Sup. Ct. 1996), aff'd, 241 A.D.2d 360, 663 N.Y.S.2d
812 (1st Dep’t 1997), aff'd, 91 N.Y.2d 382, 1998 N.Y. LEXIS
137, 1998 WL 77749, 671 N.Y.S.2d 406, 694 N.E.2d 407
(N.Y. 1998). The instant appeal is from an order of the United
States District Court for the Southern District of New York
» Even prior to the passage of the Zoning Amendment, New York City’s
Zoning Resolution prohibited new commercial development in residentially
zoned districts. Under the Zoning Amendment, adult establishments are
also barred from certain districts that are zoned for commercial and
manufacturing uses, but that permit new residential development as well.
8a
(Miriam Goldman Cedarbaum, Judge), dated March 6, 1998,
which denied plaintiffs’ motion for a temporary restraining
order and a preliminary injunction to stay the enforcement of
the Zoning Amendment.* Although at the heart of this
litigation is a controversy over free expression, plaintiffs have
already presented their free-speech claims to the New York
courts. The only question before us is whether the New York
courts’ rejection of plaintiffs’ state constitutional claims
forecloses plaintiffs from relitigating, in the form of a First
Amendment claim in federal court, the same issues that were
resolved against them in state court. We agree with the district
court that the "full faith and credit" statute prevents a federal
court from revisiting the same issues that were decided against
plaintiffs by the New York state courts, which provided
plaintiffs with a full and fair opportunity to litigate these
issues. Accordingly, we affirm.
I.
We review the district court’s denial of a preliminary
injunction for an abuse of discretion. See Bery v. City of New
York, 97 F.3d 689, 693 (2d Cir. 1996). "It is by this time
black-letter law that the party seeking a preliminary injunction
must establish that: (1) absent injunctive relief, it will suffer
an irreparable injury; and (2) either (a) a likelihood of success
* During the prior state-court proceedings, the enforcement of the Zoning
Amendment was stayed by court order. The stay was terminated by Judge
Cedarbaum’s March 6, 1998 order denying plaintiffs’ application for a
preliminary injunction. Judge Cedarbaum stayed her order until March 11,
1998, to allow plaintiffs to seek a stay in this Court. Judge Walker
extended the stay to March 11, 1998 so that the issue could be considered
by a three-judge panel, and the panel ordered the appeal to be expedited
and extended the stay through the hearing of the expedited appeal. At oral
argument of this expedited appeal on April 29, 1998, we extended the stay
until further order of this Court.
9a
on the merits or (b) sufficiently serious questions going to the
merits to make them a fair ground for litigation and the
balance of hardships tips in favor of the movant." Alliance
Bond Fund, Inc. v. Grupo Mexicano De Desarrollo, $.A., 143
F.3d 689, 1998 U.S. App. LEXIS 8830, 1998 WL 220954, at
*9 (2d Cir. 1998). "Violations of First Amendment rights are
commonly considered irreparable injuries for the purposes of
a preliminary injunction." Bery, 97 F.3d at 693. Because we
conclude, however, that plaintiffs are collaterally estopped
from relitigating the issues that govern their First Amendment
claim, they can show neither "a likelihood of success on the
merits" nor "sufficiently serious questions going to the merits
to make them a fair ground for litigation."
Under the full faith and credit statute, 28 U.S.C. § 1738,*
"Congress has specifically required all federal courts to give
preclusive effect to state-court judgments whenever the courts
of the State from which the judgments emerged would do so."
Allen v. McCurry, 449 U.S. 90, 96, 66 L. Ed. 2d 308, 101 S.
Ct. 411 (1980); see also Migra v. Warren City Sch. Dist. Bd.
of Educ., 465 U.S. 75, 84, 79 L. Ed. 2d 56, 104 S. Ct. 892
(1984) (noting that § 1738 "embodies the view that it is more
important to give full faith and credit to state-court judgments
than to ensure separate foruxsas for federal and state claims");
see generally Montana v. United States, 440 U.S. 147, 153, 59
L. Ed. 2d 210, 99 S. Ct. 970 (1979) ("A fundamental precept
of common-law adjudication, embodied in the related doctrines
of collateral estoppel and res judicata, is that a ’right, question
or fact distinctly put in issue and directly determined by a
court of competent jurisdiction . . . cannot be disputed in a
subsequent suit between the same parties or their privies . . .
4/
28 U.S.C. § 1738 provides, in pertinent part, that state court
determinations "shall have the same full faith and credit in every court
within the United States . . . as they have by law or usage in the courts of
such State . . . from which they are taken.”
10a
a
.") (quoting Southern Pacific R. Co. v. United States, 168 U.S.
1, 48-49, 42 L. Ed. 355, 18 S. Ct. 18 (1897) (ellipses in
original)). New York law provides that an issue may not be
relitigated if the identical issue was necessarily decided in a
previous proceeding, provided that the party against whom
collateral estoppel is being asserted had a full and fair
opportunity to litigate the issue in the prior action. See, e.g.,
In re Sokol, 113 F.3d 303, 306 (2d Cir. 1997); Ryan v. New
York Tel. Co., 62 N.Y.2d 494, 500-01, 478 N.Y.S.2d 823,
826-27, 467 N.E.2d 487, 490-91 (1984).
We agree with the district court that the issues decided and
the standards applied by the New York state courts in rejecting
plaintiffs’ state constitutional challenge are the same that
would be applicable to plaintiffs’ First Amendment claim.
Under both the federal and state Constitutions, the Zoning
Amendment must: (1) be "content neutral," in the sense that it
is aimed not at the restricted speech itself but at the negative
secondary consequences that flow from it; (2) serve substantial
government interests and be no broader than necessary to serve
these interests; and (3) leave open reasonable alternative
avenues of communication. Compare City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 49-50, 89 L. Ed. 2d 29,
106 S. Ct. 925 (1986), with Stringfellow’s of New York, Ltd.
v. City of New York, 91 N.Y.2d 382, 694 N.E.2d 407, 671
N.Y.S.2d 406, 1998 N.Y. LEXIS 137, 1998 WL 77749, at *5
(N.Y. 1998). The New York Court of Appeals unanimously
held that the Zoning Amendment met these standards--just as
this Court in Buzzetti found the Zoning Amendment
constitutionally unobjectionable on the record then before
us--and this determination is equally dispositive of plaintiffs’
claim under the First Amendment. Cf. Kremer v. Chemical
Construction Corp., 456 U.S. 461, 479-80, 72 L. Ed. 2d 262,
102 S. Ct. 1883 (1982) (holding, in Title VII case, that
"although the claims presented to the NYHRD [New York
State Division of Human Rights} and subsequently reviewed
lla
by the Appellate Division were necessarily based on New
York law, the alleged discriminatory acts are prohibited by
both federal and state laws. The elements of a successful
employment discrimination claim are virtually identical;
petitioner could not succeed on a Title VII claim consistently
| with the judgment of the NYHRD that there is no reason to
| believe he was terminated or not rehired because of age or
religion. The Appellate Division’s affirmance of the NYHRD’s
dismissal necessarily decided that petitioner’s claim under New
York law was meritless, and thus it also decided that a Title
| VII claim arising from the same events would be equally
| meritless." (footnotes omitted)).
Plaintiffs do not deny that the state and federal standards are
nominally the same in all material respects, but rather argue
that the standards are applied differently in state and federal
court. In particular, plaintiffs contend that federal courts
require greater proof from municipalities that the
non-speech-related government interests at stake are substantial
and that reasonable alternative avenues of communication
remain available. We note that this contention is in stark
contrast to plaintiffs’ repeated assertions in earlier stages of
this litigation that New York courts apply more favorable
standards to their free-speech claims than federal courts. In
any event, apart from their recent vintage, plaintiffs’
arguments are mistaken.
A. Substantial Government Interests
With respect to the substantiality of New York’s
non-speech-related interests in the Zoning Amendment, the
New York Court of Appeals observed that "the City Council
assembled an extensive legislative record connecting adult
establishments and negative secondary effects, including
numerous studies on the effects of adult establishments both
within and without New York City." Stringfellow’s, 91 N.Y.2d
12a
BO nial
at 397, 1998 N.Y. LEXIS 137, 1998 WL 77749, at *6. The
court then reviewed in detail this legislative record, which
included studies by the Times Square Business Improvement
District, the Chelsea Action Coalition and Manhattan
Community Board 4, and the Department of City Planning
("DCP"). Each of these studies linked the presence of adult
establishments to increased crime and decreased property
values. See id. at *6-7.% The court also noted that, apart from
the City’s own studies, the legislative record contained the
conclusions of studies conducted by city councils and town
boards throughout the country, which also showed a
correlation between adult establishments and negative
secondary effects such as increased crime, depressed real estate
markets, and an overall decline in the quality and character of
surrounding neighborhoods. See id. Finally, the court rejected
plaintiffs’ complaints about the sufficiency of the evidence,
holding that it was entirely appropriate to rely on studies from
other jurisdictions--particularly in light of the fact that City
officials had considered the comparability and reliability of
these studies--and that the "non-empirical" nature of some of
the City’s evidence (i.e., from surveys of businesses and
real-estate brokers) did not render it valueless or insubstantial.
See id. at *8.
Plaintiffs now raise the same objections to the City’s
* Although plaintiffs argue on appeal that the DCP’s own study suggests
no correlation between adult establishments and the negative secondary
effects identified by the City, the New York Court of Appeals took account
of, and rejected, this very argument, observing that “although the DCP
acknowledged that its analysis of the hard data regarding the relationship
between adult uses and urban ills did not yield conclusive results, a reading
of its report as a whole indicates that the negative perception of adult
enterprises held by the business community and the public itself results in
disinvestment, with the concomitant deterioration in the social and
economic well-being of the surrounding area.” Id. at *7.
13a
|
|
|
|
evidence that were rejected by the New York Court of
Appeals, and despite that court’s thorough review and analysis
of the legislative record, plaintiffs claim that federal law
requires the City to provide greater evidence of negative
secondary effects than the New York courts required.
Accordingly, plaintiffs contend that they are not estopped from
relitigating the sufficiency of the City’s evidence under this
allegedly more stringent federal standard. In arguing that a
more stringent standard exists, plaintiffs rely almost
exclusively on Phillips v. Borough of Keyport, 107 F.3d 164
(3d Cir. 1997) (en banc), a case that provides no support
whatsoever for their position. Phillips was an adult-use zoning
case in which the Third Circuit required additional evidentiary
support for a zoning ordinance that had been upheld by the
district court "(1) without an answer from the defendants
identifying the secondary effects alleged to justify the burden
on expression, and (2) without a record supporting the
reasonableness of any legislative expectations regarding the
likelihood of these secondary effects and the ameliorative
effect of the ordinance." Id. at 173. The Third Circuit noted
that, whereas in Renton the Supreme Court had considered the
City of Renton’s legislative record to be adequate where it
consisted solely of studies from other cities that could
reasonably be deemed relevant, "here, the district court had no
way of knowing what problem or problems the Borough
thought it was facing and there is no study or other evidence
in the record concerning the secondary effects of ‘adult
entertainment uses.’" Id. at 174. In order to avoid "reducing
the First Amendment to a charade in this area," id. at 175, the
Third Circuit required the Borough at least to "identify" the
secondary effects with some particularity, and io "offer some
record support for the existence of those effects," id. Far from
suggesting that federal law would require more exacting
scrutiny of the legislative record than was undertaken by the
New York courts in this case, Phillips stands for nothing more
than the unremarkable proposition that a barren legislative
ee lls a eee ee ees
. . aed a ENE Ses eee he rere
pe ate eae ade cated, Pv RON a OT ee a + a Lan ene ee nyt ST ee kee Oe ~ 7 my - ™
record will not suffice under the First Amendment--a
proposition which is unhelpful to plaintiffs, in light of the fact
that the legislative record in the present case is quite
extensive, as the state courts recognized.
In any event, quite apart from the fact that we find no merit
in plaintiffs’ argument that the federal standard for judging the
substantiality of New York’s non-speech-related interests is
stricter than the state standard, this Court, in Buzzetti, has
already considered and rejected the argument that the
legislative record is inadequate, as a matter of federal law, to
support the City’s legitimate and substantial interests in the
Zoning Amendment. As we stated in Buzzetti:
Renton emphasized that city officials were not required to
make particular findings regarding the secondary effects of
adult entertainment in Renton itself, but rather were "entitled
to rely on the experiences of . . . other cities." Renton, 475
U.S. at 51, 106 S. Ct. at 931; see id. at 51-52, 106 S. Ct. at
931 ("The First Amendment does not require a city, before
enacting such an ordinance, to conduct new studies or produce
evidence independent of that already generated by other cities,
so long as whatever evidence the city relies upon is reasonably
believed to be relevant to the problem that the city
addresses."). Thus, New York City’s reliance on studies from
a variety of other areas of the country was well-placed. But .
. . New York City went beyond this minimal requirement: the
DCP conducted its own detailed study, consulted other studies
conducted in particular neighborhoods of New York City, and
considered testimony given at public hearings in New York.
140 F.3d at 140, 1998 WL 130866, at *7 (first ellipsis in
original). Accordingly, it is clear that there is no basis for
allowing plaintiffs to relitigate this issue in federal court.
15a
B. Alternative Avenues of Communication
Plaintiffs’ argument that federal courts apply a more
stringent standard than the New York courts applied to
determine whether there are "reasonable alternative avenues of
communication" is also unavailing. Indeed, the New York
Court of Appeals summarized the standard that federal courts
have applied, and proceeded to apply that very standard as the
basis for its inquiry under the state Constitution. The court’s
discussion merits quotation at length:
Relying on a formula derived from City of Renton v.
Playtime Theatres . . ., the federal courts have generally
concluded that reasonable alternative avenues of
communication exist if there is sufficient land area open for
use by adult businesses "in all stages of development from raw
land to developed, industrial, warehouse, office and shopping
space that is criss-crossed by freeways, highways and roads"
(id., at 53-54). Under Renton, land that is already occupied by
commercial and manufacturing facilities and undeveloped land
that is not for sale or lease is not to be automatically deemed
unavailable. Further, any reduction in profitability caused by
a forced relocation is not relevant to the availability inquiry
(see, City of Renton v. Playtime Theatres, [475 U.S.] at 53;
Woodall v. City of El Paso, 49 F.3d 1120, 1124-25 [(Sth
Cir.)], cert. denied, 516 U.S. 988, 116 S. Ct. 516, 133 L. Ed.
2d 425 [(1995)]; Grand Brittain, Inc. v. City of Amarillo,
Tex., 27 F.3d 1068, 1070 [(Sth Cir. 1994)]; see also, Town of
Islip v. Caviglia, [73 N.Y.2d 544, 542 N.Y.S.2d 139, 540
N.E.2d 215,}] 555, 560 [(1989)] (areas of a municipality set
aside for adult uses need not be prime locations)). Rather, the
inquiry is limited to the physical and legal availability of
alternative sites within the municipality’s borders and whether
those sites are part of an actual business real estate market
(see, Topanga Press, Inc. v. City of Los Angeles, 989 F.2d
1524, 1530-31 [(9th Cir. 1993)], cert. denied, 511 U.S. 1030,
l6a
128 L. Ed. 2d 190, 114 S. Ct. 1537 [(1994)]; see also,
Woodall v. City of El Paso, supra; Alexander v. City of
Minneapolis, 928 F.2d 278 [(8th Cir. 1991)].
In determining whether proposed relocation sites are part of
an actual business real estate market, the courts have
considered such factors as their accessibility to the general
public, the surrounding infrastructure, the pragmatic likelihood
of their ever actually becoming available and, finally, whether
the sites are suitable for "some generic commercial enterprise"
(see [Topanga], 989 F.2d at 1531). Notably, these
considerations dovetail nicely with Islip’s requirement that
there be "ample space available for adult uses after the
rezoning" and no showing of a substantial reduction in the
total number of adult outlets or the accessibility of those
outlets to their potential patrons (73 N.Y.2d at 555, 560). With
these considerations as a backdrop, we turn now to the specific
facts and contentions presented here.
Stringfellow’s, 91 N.Y.2d at 402, 1998 N.Y. LEXIS 137, 1998
WL 77749, at *9-10. -
Significantly, the two cases most heavily relied upon by
plaintiffs in arguing that federal law imposes more of an
evidentiary burden on the City to prove the availability and
suitability of alternative sites than the New York state courts
imposed--Topanga Press, Inc. v. City of Los Angeles and
Woodall v. City of El Paso--were cited and relied upon by the
New York Court of Appeals. Forced to acknowledge this fact,
which strongly suggests that the state court was not answering
a different question or applying a standard less favorable to
plaintiffs than federal courts would apply, plaintiffs argue that
while "the New York Court of Appeals did refer to the
Topanga and Woodall decisions[, a]nd . . . did suggest that the
City was obligated to demonstrate *the physical and legal
availability of alternative sites . . . . and whether those sites
17a
are part of the actual business real estate market(,]’ . . . there
is a serious analytic gap between this language . . . and the
factual record developed in the state trial court." Brief of
Hickerson Appellants at 31-32. Plaintiffs argue, in other
words, that while the New York Court of Appeals purported
to be making the same determination that a federal court
would make under federal law to determine the availability of
"reasonable alternative avenues of communication," plaintiffs
should not be collaterally estopped from relitigating this issue
because the "serious analytic gap" between the evidence and
the recited standard belies any conclusion that federal
standards were genuinely applied.
We find no such "serious analytic gap,” nor any reason to
doubt that the New York Court of Appeals answered the same
question that would be dispositive under federal law.
Plaintiffs’ primary argument to the contrary is that federal law
requires municipalities to identify the specific physically and
legally available relocation sites. Plaintiffs have produced an
affidavit from a land-use planning consultant, Robert
McLaughlin (the "McLaughlin Affidavit" or "Affidavit"),
which asserts that some of the land identified by the City as
available for relocating adult establishments is not realistically
available, for a variety of reasons--some of the land, for
example, is allegedly occupied by "oil tank farms" and
structures including "numerous and large facilities of the New
York City Sanitation Department." McLaughlin Affidavit at
24, 26. Unless the City can precisely identify the "physically
and legally available" sites to which the approximately 147
adult establishments that will need to relocate can move,
plaintiffs argue, the City has not carried its burden of proving
that "reasonable alternative avenues of communication” exist
under federal law.
Plaintiffs’ argument suffers from several flaws. First, we are
aware of no federal case, and plaintiffs direct our attention to
18a
— —————
none, that requires municipalities to identify the exact
locations to which adult establishments may relocate, as
opposed to identifying the general areas that remain available
and proving that such areas contain enough potential relocation
sites that are "physically and legally available" to
accommodate the adult establishments. This is precisely the
standard of proof to which the New York Court of Appeals
held the City. Clearly then, to second-guess that court’s
determination of this issue would violate the full faith and
credit statute.
After observing that "it is incumbent upon the municipal
defendants to demonstrate that sufficient alternative receptor
sites are available," Stringfellow’s, 91 N.Y.2d at 403, 1998
N.Y. LEXIS 137, 1998 WL 77749, at *10, the New York
Court of Appeals noted the City’s evidence that, after
excluding land identified by the City as being encumbered by
properties unlikely to be developed for commercial use, 4% of
the total land area of the City remained open to adult
establishments. Maps prepared by the City reflected that, after
factoring in the Zoning Amendment’s 500-foot buffer zones,
over 500 potential sites remained available. See id. Further, the
New York Court of Appeals considered the City’s evidence
that the zoning districts left open to adult establishments
"permit a wide mix of commercial, retail, entertainment and
manufacturing uses," id., and that all of these areas in
Manhattan and 80% of the areas in the other boroughs of New
York are within a ten-minute walk from a subway line or
major bus route, see id.”
* The accessibility of potential sites in the so-called "outer boroughs”
disposes of plaintiffs’ argument--which, in any event, is without foundation
and unsupported by case law--that in contrast to the state courts’ analysis,
the First Amendment requires proof of adequate available sites on a
borough-by-borough basis.
19a
The court did not ignore plaintiffs’ evidence--namely, the
McLaughlin Affidavit--that portions of the 4% of
"unencumbered" land identified by the City were not
realistically available, but rather found this evidence
insufficient to raise a material question of fact regarding the
availability of "reasonable alternative avenues of
communication." The court partially discredited the
McLaughlin Affidavit because McLaughlin considered land to
be “unavailable” that, under Renton, is not to be
excluded--such as industrial areas, undeveloped land, and
warehouse areas. See Renton, 475 U.S. at 53-54 (finding
available land to be adequate where it included "acreage in all
stages of development from raw land to developed, industrial,
warehouse, office, and shopping space," and observing that the
fact that the establishments "must fend for themselves in the
real estate market, on an equal footing with other prospective
purchasers and lessees, does not give rise to a First
Amendment violation"); see also, e.g., Grand Brittain, Inc. v.
City of Amarillo, Tex., 27 F.3d at 1069-70 (holding that
adult-use zoning ordinance provided reasonable alternative
avenues of communication even though 90% of prospective
sites were on undeveloped land). The court also recognized
that while the McLaughlin Affidavit identified, within the 4%
of purportedly "unencumbered" land identified by the City,
specific sites that were clearly not realistically available, this
was insufficient to cast doubt upon the availability of
"reasonable alternative avenues of communication" where the
City had produced evidence showing that this land could
accommodate over 500 establishments under the terms of the
Zoning Amendment, approximately three times the number of
establishments that currently exist:
The most significant flaw in McLaughlin's affidavit . . . is
the absence of any attempt to quantify his observations or to
make concrete allegations as to precisely how many of the 500
potential receptor sites identified by defendants were, in his
20a
estimate, unavailable? To be sure, the affidavit lists a
significant number of sites that are pragmatically unavailable
because their current uses are so entrenched that they are
unlikely to become part of the commercial real estate market
in the foreseeable future. Included in this category are such
diverse sites as those that house the northern half of Federal
Plaza in Manhattan, the Clay Pit Ponds State Park Preserve in
Staten Island, a New York City fire house in Brooklyn and a
United Parcel Service facility in Queens. However,
McLaughlin’s criticisms about various individual sites do not
provide an adequate counter to defendants’ supported claim
that within the available acreage as a whole there are more
than enough receptor sites to accommodate the existing adult
entertainment industry.
Stringfellow’s, 91 N.Y.2d at 404, 1998 N.Y. LEXIS 137, 1998
WL 77749, at *11; see also Stringfellow’s, 171 Misc. 2d at
396, 653 N.Y.S.2d at 814 ("Even if the City’s estimate
overstates the number of potentially viable relocation sites,
there still remains ample space for more than the existing
numbers of adult establishments. . . . Nothing in Renton, Islip
or any ex:sting case law requires the City to identify specific
sites that are actually available."); cf. Woodall v. City of El
Paso, 49 F.3d at 1126 (stating, in response to complaints by
” McLaughlin subsequently did quantify, in a new but substantially similar
affidavit submitted to the district court, the number of sites he considered
to be realistically available (90). However, in light of our agreement with
the district court that plaintiffs had a full and fair opportunity to present
evidence in state court, see infra, this belated submission does not affect
our collateral estoppel inquiry. "A party . . . cannot avoid issue preclusion
simply by offering evidence in the second proceeding that could have been
admitted, but was not, in the first." 18 James Wm. Moore, et al., Moore’s
Federal Practice § 132.02(2)(d), at 132-26 (3d ed. 1998); see, e.g., Yamaha
Corp. v. United States, 295 U.S. App. D.C. 158, 961 F.2d 245, 254-55,
257 (D.C. Cir. 1992), cert. denied, 506 U.S. 1078, 122 L. Ed. 2d 353, 113
S. Ct. 1044 (1993).
2la
adult establishments as to the viability of particular sites, that
"even if we agreed that . . . these sites suffered from defects
so severe as to take them out of the commercial real estate
market and render them physically unavailable, there was no
evidence that surrounding sites suffered from the same
impediments so as to render them likewise unavailable").
In sum, there is no reason to doubt that the New York Court
of Appeals applied the same standard and answered the same
questions that apply under federal law in determining whether
the Zoning Amendment provided for "reasonable alternative
avenues of communication." The argument that federal law
would have required the City to identify the precise sites to
which adult establishments could relocate is not only
unsupported by any federal case law, but is belied by our
recent decision in Buzzetti. In Buzzetti, far from suggesting
that the City’s evidence was inadequate because it was not
site-specific, we held that "there can be no doubt on this
record that the Zoning Amendment allows for reasonable
alternative avenues of communication." 140 F.3d at 140, 1998
WL 130866, at *8 (internal quotation marks omitted).
Although we did not have the McLaughlin Affidavit before us
in Buzzetti, the McLaughlin Affidavit is only relevant to
whether plaintiffs have produced enough counter-evidence to
cast doubt on the City’s evidence, and it does not change the
fact that under federal law the City was not required to
identify precise relocation sites in order to prove the existence
of "reasonable alternative avenues of communication." The
state courts’ determination that the McLaughlin Affidavit did
not cast sufficient doubt on the City’s evidence to preclude
summary judgment--based largely on the Affidavit’s failure to
quantify the number of feasible sites, its reliance on premises
that were invalid under Renton, and the persuasiveness of the
City’s own evidence--does not, in short, represent a departure
from federal standards. The full faith and credit statute
therefore bars plaintiffs from relitigating the issue of
22a
alternative sites in federal court.
C. Plaintiffs’ Opportunity to Litigate the Issues in State Court
Collateral estoppel will only apply if plaintiffs had a "full
and fair opportunity" in New York state court to litigate the
issues that they now seek to relitigate in federal court. See In
re Sokol, 113 F.3d at 306; Ryan, 62 N.Y.2d at 501, 478
N.Y.S.2d at 826, 467 N.E.2d at 490. Plaintiffs, as the parties
opposing the application of collateral estoppel, bear the burden
of proving that they were denied this full and fair opportunity.
See In re Sokol, 113 F.3d at 306; Kaufman v. Eli Lilly & Co.,
65 N.Y.2d 449, 456, 492 N.Y.S.2d 584, 588, 482 N.E.2d 63,
67 (1985). Under New York law, "[a] determination whether
the first action or proceeding genuinely provided a full and
fair opportunity requires consideration of the realities of the
[prior] litigation, including the context and other circumstances
which . . . may have had the practical effect of discouraging
or deterring a party from fully litigating the determination
which is now asserted against him." Ryan, 62 N.Y.2d at 501,
478 N.Y.S.2d at 827, 467 N.E.2d at 491 (internal quotation
marks and citation omitted; alterations in original). Included
among the factors to be considered are "the nature of the
forum and the importance of the claim in the prior litigation,
the incentive and initiative to litigate and the actual extent of
litigation, [and] the competence and expertise of counsel." Id.
Substantially for the reasons stated by Judge Cedarbaum, we
believe that plaintiffs have not met their burden of proving
that they were denied a full and fair opportunity to litigate
their claims in state court. See Hickerson, 997 F. Supp. at
___, 1998 U.S. Dist. LEXIS 2635, 1998 WL 105583, at
*5-6.
Accordingly, because the same issues decided by the state
courts are dispositive of plaintiffs’ claims under the First
Amendment, and because plaintiffs had a full and fair
23a
opportunity to litigate these issues in state court, they are
collaterally estopped from relitigating them in federal court.
II.
Plaintiffs argue that they are not precluded from litigating
their First Amendment claim in federal court because they
informed the state court, pursuant to England v. Louisiana
State Board of Medical Examiners, 375 U.S. 411, 11 L. Ed.
2d 440, 84 S. Ct. 461 (1964), that they intended to reserve the
right to litigate their federal claims in federal court. England
held that, after a federal court has abstained under the doctrine
of Railroad Commission of Texas v. Pullman Co., 312 U.S.
496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), in order to obtain
an authoritative interpretation of state law that could
potentially moot or influence the federal constitutional
questions presented, parties who have been remitted to state
court against their will are not forced to litigate their federal
claims there, but may reserve the right to a federal
adjudication of these claims. See 375 U.S. at 421-22. The
Supreme Court in England stated its "fundamental objections
to any conclusion that a litigant who has properly invoked the
jurisdiction of a Federal District Court to consider federal
constitutional claims can be compelled, without his consent
and through no fault of his own, to accept instead a state
court’s determination of those claims." Id. at 415 (emphasis
added).
Consistent with England’s focus on the problem of
depriving a litigant who has "invoked" the jurisdiction of a
federal court from being deprived of that choice "without his
consent and through no fault of his own," the Supreme Court
appeared to suggest in a subsequent case that an England
reservation would only be available when the federal courts
were a litigant’s initial forum of choice. See Allen v.
McCurry, 449 U.S. 90, 101 n.17, 66 L. Ed. 2d 308, 101 S. Ct.
24a
411 (1980) (characterizing England as applying "where a
plaintiff properly invokes federal-court jurisdiction in the first
instance on a federal claim" (emphasis added)). A similar
Suggestion was made in Migra v. Warren City School District
Board of Education, 465 U.S. 75, 84-85 & n.7, 79 L. Ed. 2d
56, 104 S. Ct. 892 (1984). The question in Migra was whether
litigants who could have, but did not, raise certain claims in
their state case were precluded from raising those claims in a
subsequent § 1983 suit in federal court. The Court held that
such litigants were indeed so precluded, and relied heavily on
the fact that such litigants voluntarily chose to proceed initially
in state court. The petitiorier in Migra, the Court observed, did
"not claim that the state court would not have adjudicated her
federal claims had she presented them in her Original suit in
State court. Alternatively, petitioner could have obtained a
federal forum for her federal claim by litigating it first in a
federal court." Id. at 84-85. Having emphasized the
voluntariness of the decision to file suit initially in state court,
the Court then carefully noted that England provides a way for
plaintiffs to return to federal court after a district court has
abstained. See id. at 85 n.7. By contrasting England with the
situation in which a plaintiff has chosen to file suit in state
court even though he could have sought an adjudication of his
federal constitutional claims in federal court, Migra can be
read to suggest that England was not aimed at litigants who
initially brought suit in state court. Cf. Fields v. Sarasota
Manatee Airport Auth., 953 F.2d 1299, 1306 (11th Cir. 1992)
("The Migra Court made clear that England could apply when
a litigar with a federal constitutional claim is involuntarily in
state court." (emphasis added)).
In the instant case, plaintiffs did not invoke the jurisdiction
of the federal court in the first instance, only to have the court
invoke Pullman abstention. Instead, they filed suit in state
court, which they believed would look upon their free-speech
claims more favorably. Moreover, after defendants removed
25a
the case to federal court, plaintiffs moved to remand the case
in its entirety (including their First Amendment claim) to state-
court, arguing that the case was not properly removable and
also vigorously urging that their state constitutional claims
"predominated," while their First Amendment claim was a
mere "adjunct" or "supplement." See Affirmation on Behalf of
Amsterdam Video Plaintiffs, in Support of Motion to Remand,
dated April 26, 1996 (United States District Court for the
Southern District of New York, No. 96 Civ. 2204), in Joint
Appendix at 227. The district court, in response to plaintiffs’
motion, abstained under Puliman and remitted the state claims
to state court, but denied plaintiffs’ request to remand the
federal constitutional claims and instead stayed these claims
pending the outcome of the state litigation. See 932 F. Supp.
at 551. Only then did plaintiffs file an England reservation.
Under these circumstances, plaintiffs cannot meaningfully be
said to have been deprived of a federal forum for their federal
claims "without [their] consent and through no fault of [their]
own." England, 375 U.S. at 415. If defendants had not sought
to avail themselves of a federal forum after plaintiffs filed suit
in state court, plaintiffs would have been held to their choice
of forum and would have been required to submit their First
Amendment claim to the New York state courts. The same
would have been true if plaintiffs had been successful in
moving to remand the entire case to state court. Alternatively,
if plaintiffs’ priority had been to obtain a federal forum for
their First Amendment claim, they could have filed suit in
federal court initially. Cf. Migra, 465 U.S. at 84-85 & n.7. In
light of England’s emphasis on the need to preserve access to
a federal forum for those litigants who have chosen it, and in
light of the suggestive characterizations of England by the
Supreme Court in the later cases of Allen v. McCurry and
Migra, we agree with those courts that have held that England
applies only to litigants who have sought to proceed in federal
court in the first instance, and not to litigants such as the
26a
an
instant plaintiffs who voluntarily chose to file suit in State
court. See Peduto v. City of North Wildwood, 878 F.2d 725,
729 n.5 (3d Cir. 1989) ("As plaintiffs here invoked the
jurisdiction of the state court in the first instance, the
application of England has no relevance here."); Schuster v.
Martin, 861 F.2d 1369, 1373-74 (5th Cir. 1988) (England
"does not apply where the plaintiff voluntarily chooses to
pursue a state action first."); Fuller Co. v. Ramon I. Gil, Inc.,
782 F.2d 306, 312 (1st Cir. 1986) ("In order to make an
England reservation, a litigant must establish its right to have
its federal claims adjudicated in a federal forum by properly
invoking the jurisdiction of the federal court in the first
instance."); cf. Fields v. Sarasota Manatee Airport Auth., 953
F.2d at 1304-05 (considering itself bound by
predecessor-circuit decision, Jennings v. Caddo Parish Sch.
Bd., 531 F.2d 1331, 1332 (5th Cir.), cert. denied, 429 U.S.
897, 50 L. Ed. 2d 180, 97 S. Ct. 260 (1976), allowing
plaintiffs to file England reservation prior to bringing suit in
federal court, but noting that "Jennings effectively abolishes
the first requirement for an England reservation--filing in the
first instance in federal court. Thus, it appears that the
Jennings panel misread England, effectively rewriting the
requirements for a valid England reservation."); see generally
17A Charles Allan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice & Procedure § 4243, at 6 (1998
Pocket Part) ("The England procedure strictly speaking is
applicable only if a case was begun in federal court.").
We are not persuaded that a contrary result is required by
footnote 13 of England, which contains some broad language
seized upon by plaintiffs, but which we read simply to indicate
that an England reservation is available not only to plaintiffs,
but also to defendants who have removed the case to federal
court, only to have the district court abstain. Footnote 13
States:
27a
The reservation may be made by any party to the litigation.
Usually the plaintiff will have made the original choice to
litigate in the federal court, but the defendant also, by virtue
of the removal jurisdiction, 28 U.S.C. § 1441(b), has a right
to litigate the federal question there. Once issue has been
joined in the federal court, no party is entitled to insist, over
another’s objection, upon a binding state court determination
of the federal question. Thus, while a plaintiff who
unreservedly litigates his federal claims in the state courts may
thereby elect to forgo his own right to return to the District
Court, he cannot impair the corresponding right of the
defendant. The latter may protect his right by either declining
to oppose the plaintiff's federal claim in the state court or
opposing it with the appropriate reservation.
England, 375 U.S. at 422 n.13. Despite plaintiffs’ reliance on
the statement that "once issue has been joined in the federal
court, no party is entitled to insist, over another’s objection,
upon a binding state court determination of the federal
question,” we believe that it is clear, in context, that this
footnote was only intended to clarify that England applies to
defendants as well as plaintiffs, and that the particular
language relied upon by plaintiffs was intended simply to
clarify that a plaintiff may not, by fully litigating his federal
claims in state court, deprive a defendant of his right to return
to the federal forum. We do not read this language to render
irrelevant a plaintiff's choice to avail himself of state, rather
than federal, jurisdiction in the first instance, and we believe
such a reading would contravene England’s emphasis on
preserving the federal forum for those who have "invoked" it
but have been deprived of it "through no fault of [their] own."
Id. at 415. Plaintiffs not only voluntarily filed suit in state
court, but sought to remand the entire case to state court after
it had been removed to federal court by defendants; while
footnote 13 of England, under these circumstances, would
have protected aefendants from being deprived of their choice
28a
of a federal forum, it does not allow defendants’ choice of a
federal forum to be preserved by plaintiffs.
Il.
Apart from their reliance on England, plaintiffs raise several
other arguments as to why collateral estoppel does not apply,
each of which is without merit. First, citing Bose Corp. v.
Consumers Union of United States, Inc., 466 U.S. 485, 80 L.
Ed. 2d 502, 104 S. Ct. 1949 (1984), plaintiffs argue that
because their federal claim arises under the First Amendment,
they are entitled to an independent examination of the record.
In First Amendment cases, notwithstanding the "clearly
erroneous" standard of factual review set forth in Fed. R. Civ.
P. 52(a), "we are required to make an independent examination
of the record as a whole without deference to the factual
findings of the trial court." Bery, 97 F.3d at 693 (citing, inter
alia, Bose Corp., 466 U.S. at 499). However, this rule only
concerns the proper level of appellate review, and does not bar
the application of collateral estoppel. See Ferris v. Cuevas, 118
F.3d 122, 125 n.3 (2d Cir. 1997) (citing Bose requirement, but
noting, pursuant to finding plaintiffs’ First Amendment claims
that were not raised in prior state-court proceedings to be
barred by res judicata, that "because our holding today is
procedurally based and does not reach the merits .. . we do
not conduct this higher level of factual review. he
Plaintiffs also rely on the doctrine that "changes in facts
essential to a judgment will render collateral - estoppel
inapplicable in a subsequent action raising the same issues."
Montana, 440 U.S. at 159. They argue that such a change
occurred when Mayor Rudolph W. Giuliani, one of the
defendants in this action, stated at a press conference following
the New York Court of Appeals’ decision that the Zoning
Amendment would "severely limit[]" the places adult
establishments could relocate to, and would "reduce the
29a
number in the city to something like 20 or 30." Text of Mayor
Giuliani’s City Hall Press Conference, February 24, 1998, in
Joint Appendix at 914. Montana makes clear that the exception
to collateral estoppel based on intervening changes in the
factual record applies only when these changes "significantly"
affect the overall complexion of the record. See 440 U.S. at
157; 18 James Wm. Moore, et al., Moore’s Federal Practice §
132.02(2)(e), at 132-27 to -28 (3d ed. 1998) (in order to
render issue preclusion inapplicable, "a difference in pertinent
facts" must be "sufficient to substantially change the issue").
Mayor Giuliani’s statements to the press, particularly when
compared to the extensive legislative record compiled by the
City--whose conclusions actually differ from those stated at
Mayor Giuliani’s press conference--simply do not meet that
standard.
A final point that, in plaintiffs’ view, counsels against the
application of co:'ateral estoppel, is that Supreme Court review
is unavailable witi respect to the New York state courts’
determination of a question of state law. This argument fails
to appreciate that the district court made a determination of
federal iaw--namely, that the issues decided and the standards
applied by the New York courts are the same as those that
would be dispositive under the First Amendment. If the district
court’s interpretation of the governing First Amendment
standards were mistaken, and ii this Court were mistaken in
affirming the district court’s interpretation of federal law, the
Supreme Court would remain free to so find and to order this
case to proceed in district court.
IV.
In sum, under the full faith and credit statute and New
York’s law of collateral estoppel, plaintiffs may not relitigate
their First Amendment claim in federal court because the same
issues that are dispositive of this claim have already been
30a
decided in state court. Plaintiffs had a full and fair opportunity
to litigate these issues in state court, and they raise no valid
ground for barring the application of the doctrine of collateral
estoppel. Accordingly, plaintiffs can show neither "a likelihood
of success on the merits" nor "sufficiently serious questions
going to the merits to make them a fair ground for litigation,"
and the district court’s denial of plaintiffs’ motion for a
preliminary injunction was entirely proper. We have
considered all of plaintiffs’ other arguments, and find them to
be without merit. The stay of Judge Cedarbaum’s March 6,
1998 order is hereby vacated, the judgment of the district court
is affirmed, and the Zoning Amendment may be enforced
forthwith.
997 F. Supp. 418”
RACHEL HICKERSON, et al., Plaintiffs
-against-
THE CITY OF NEW YORK, et al., Defendants
TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT,
CENTER FOR THE COMMUNITY INTEREST, et al.,
Defendants-Intervenors,
* KX
AMSTERDAM VIDEO INC., et al.,
-against-
THE CITY OF NEW YORK, et al.,
Defendants,
TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT,
CENTER FOR THE COMMUNITY INTEREST, et al.,
Defendants-Intervenors.
96 Civ. 2203 (MGC), 96 Civ. 2204 (MGC)
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
March 9, 1998
“’ The caption in this case is exactly the same as those of the federal court
cases previously set forth in this appendix.
32a
Penn rn nen nrin rt Sennen eer ent note eT te ee
| Beth Haroules, Esq., Arthur N. Eisenberg, Esq., Norman
| Siegel, Esq.. NEW YORK CIVIL LIBERTIES UNION
FOUNDATION, New York, New York, for Rachel Hickerson,
et al., Plaintiffs.
Herald Price Fahringer, Esq., Erica T. Dubno, Esq., LIPSITZ,
GREEN, FAHRINGER, ROLL, SALISBURY & CAMBRIA,
New York, New York, for Amsterdam Video Inc., et al.,
Plaintiffs.
JEFFREY D. FRIEDLANDER, Acting Corporation Counsel
of the City of New York, Albert Fredericks, Esq., Gabriel
Taussig, Esq., Elizabeth Natrella, Esq., New York, New York,
for Defendants.
Frederick A. O. Schwartz, Jr., Esq., David A. Stoll, Esq.,
CRAVATH, SWAINE & MOORE, New York, New York, for
Times Square Business Improvement District, Intervenor.
Wayne A. Cross, Esq., DEWEY BALLANTINE LLP, New
York, New York, for Center for the Community Interest, et
al., Intervenors.
OPINION
| CEDARBAUM, District Judge:
Plaintiffs in these two actions move for a temporary
restraining order and preliminary injunction staying
enforcement of Text Amendment N 950384 to the Zoning
Resolution of the City of New York (the "Amended Zoning
Resolution"), which regulates the zoning of "adult
33a
establishments." The motion is denied for the reasons that
follow.
In a case in which the moving party seeks to stay
governmental action taken in the public interest pursuant to a
statutory or regulatory scheme, the issuance of a preliminary
injunction requires the movant to demonstrate both irreparabie
harm and a likelihood of success on the merits. NAACP v.
Town of East Haven, 70 F.3d 219, 223 (2d Cir. 1995). This
standard is particularly appropriate where a municipal
regulation has been carefully examined by all of the courts of
the state, including the highest court, and its validity has been
upheld under a state constitution that provides broad protection
for individual rights.
A violation of the First Amendment of the Consiitution of
the United States is itself irreparable harm. Elrod v. Burns,
427 U.S. 347, 373-74, 49 L. Ed. 2d 547, 96 S. Ct. 2673
(1976). Accordingly, when an injunction is sought to protect
First Amendment rights, likelihood of success on the merits
and irreparable harm merge into a single threshold
requirement. Preliminary injunctive relief is not warranted in
this case because plaintiffs have not shown likelihood of
success on the merits.
BACKGROUND
Plaintiffs in the Hickerson action are Manhattan and Bronx
2 Complete descriptions of the Amended Zoning Resolution can be found
in this Court's prior opinion, Hickerson v. City of New York, 932 F. Supp.
550 (S.D.N.Y. 1996), and in Stringfellow’s of New York, Ltd. v. City of
New York, 171 Misc. 2d 376, 653 N.Y.S.2d 801 (N.Y. County 1996),
aff'd, 241 A.D.2d 360, 663 N.Y.S.2d 812 (Ist Dep’t 1997), aff'd, 91
N.Y.2d 382, 694 N.E.2d 407, 671 N.Y.S.2d 406, 1998 WL 77749 (N.Y.
Ct. App. 1998).
34a
Po
Wtnrmeibees Naas’ onabrcais Des ea i age alin ls «Alea ek Te le a aT
wk chet
i
}
>
residents who allege that they regularly patronize adult
establishments. They claim that the Amended Zoning
Resolution will prevent them from continuing to patronize the
adult establishments they currently frequent, and will reduce
significantly the number of alternative establishments available
to them. Plaintiffs in the Amsterdam action are owners and
operators of business establishments which they allege are
adult establishments as defined by the Amended Zoning
Resolution. They allege that the resolution will force them to
terminate the operation of their businesses and thereby cause
them significant economic harm.
Both groups of plaintiffs originally sued in the Supreme
Court for New York County, asserting claims of violation of
freedom of expression under the New York Constitution and
the Constitution of the United States. Defendants, the City of
New York and three city officials, removed the actions to this
Court because of the federal questions presented by the
complaints. Plaintiffs promptly sought to return to the state
court by moving to remand the actions in their entirety. On
June 27, 1996, plaintiffs’ motions to remand were granted in
part and denied in part. Under the doctrine of abstention of
Railroad Commission v. Pullman Co., 312 U.S. 496, 85 L. Ed.
971, 61 S. Ct. 643 (1941), all of plaintiffs’ state claims were
remanded to New York County Supreme Court, while the
federal claims were stayed pending resolution of the state
claims. Hickerson v. City of New York, 932 F. Supp. 550
(S.D.N.Y. 1996).
State Court Proceedings
After remand of the state constitutional claims, defendants
moved for summary judgment on those claims. Before
defendants filed their summary judgment motion, plaintiffs
conducted some discovery, including a deposition of Marilyn
Mammano, a staff person at the Department of City Planning.
35a
In support of summary judgment, defendants submitted a
number of affidavits and virtually the entire legislative record
of the Amended Zoning Resolution, including various studies
and reports on adult businesses, the records of public hearings
| related to the Amended Zoning Resolution, and maps
| purporting to show permissible locations for the operation of
adult establishments under the law. In opposition to the
defendants’ motion, plaintiffs submitted numerous affidavits
and legal memoranda, including an extensive affidavit from a
land use expert, R. Bruce McLaughlin. McLaughlin’s affidavit
addressed the availability of alternative sites for the businesses
required by the Amended Zoning Resolution to close or
relocate. It appears from McLaughlin’s affidavit that he had
been studying the matter for many months. According to the
affidavit, McLaughlin personally visited every one of the more
thai: Sou sites identified by the defendants as available for
adult establishments. Moreover, documents attached to the
affidavit included an analysis prepared in August 1995, while
the Amended Zoning Resolution was under consideration and
approximately one year before defendants moved for summary
judgment.
On October 23, 1996, Justice Marylin G. Diamond of the
New York County Supreme Court granted defendants’ motion
for summary judgment on plaintiffs’ state constitutional
claims. Stringfellow’s of New York, Ltd. v. City of New
York, 171 Misc. 2d 376, 653 N.Y.S.2d 801 (N.Y. County
1996), aff'd, 241 A.D.2d 360, 663 N.Y.S.2d 812 (1st Dep’t
1997), aff'd, 91 N.Y.2d 382, 694 N.E.2d 407, 671 N.Y.S.2d
406, 1998 WL 77749 (N.Y. Ct. App. 1998). Justice Diamond
found that the Amended Zoning Resolution was not an attempt
to regulate speech but rather was motivated by concerns other
than those related to speech, and, in particular, by a reasonable
belief that adult establishments produce undesirable secondary
effects such as neighborhood deterioration, crime and
36a
a te = “ ee He dk OP ke ee ee BETFAIR BAT i
ALES REESE ERE ENE REN ISA GE ARIES AM TEENS LI REN ARO EOIN DS URI OS Blah ERI tani: 3
decreased property values. Justice Diamond found that, in
enacting the Amended Zoning Resolution, the City reasonably
relied on a number of studies undertaken in New York City
and elsewhere concerning the secondary effects of adult
establishments. She also found that the Amended Zoning
Resolution is no broader than is necessary to address the
negative effects associated with adult establishments.
Finally, Justice Diamond found that the Amended Zoning
Resolution provides ample space for adult establishments,
leaving almost 4% of New York City’s total land area
available for use by such establishments. She stated that
defendants had "more than sufficieniiy demonstrated that the
permissible areas are suitable for commercial enterprise and
are large enough to accommodate adult establishments which
must relocate. While plaintiffs have labored mightily to create
issues of fact, none exist." Id. at 814. This conclusion was
based in part on the specific analysis provided in the affidavit
of William Bernstein, First Deputy Executive Director of the
Department of City Planning, and other affidavits submitted
by the defendants, who represented that approximately 500
potential relocation sites existed in New York City. She also
considered McLaughlin’s affidavit, which concluded that the
actual number of available alternative sites was much smaller
than the 500 or so claimed by the defendants. Justice Diamond
found that McLaughlin’s methodology was "fatally flawed"
because it unjustifiably eliminated a number of sites based on
factors that McLaughlin claimed make certain sites
unavailable. Id. at 812. These factors included the undeveloped
state of the proposed site, Suitability for some "generic
commercial enterprise," presence of a long-term lessee, current
use as a parking lot and lease clauses prohibiting adult uses.
Noting that such factors have been repeatedly rejected by state
and federal courts, Justice Diamond found that McLaughlin
and plaintiffs failed to rebut defendants’ evidence that ample
Sites were available for the relocation of adult establishments.
37a
In so doing, she stated:
Although 10 months have passed since McLaughlin states he
obtained zoning maps maintained by the DCP, he claims that
he cannot estimate the acreage size of the permissible zones
because of lack of time. He also fails to offer his own number
of potential relocation sites under either the City’s
methodology or his own methodology to rebut the City’s
calculation.
Id. Justice Diamond rejected plaintiffs’ contention that the
defendants’ estimate of 500 sites was invalid because it was
generated by computer and not by inspection of the actual
sites. She determined from the deposition testimony of Marilyn
Mammano that the defendants’ computation of alternative sites
was properly calculated, based on conservative measurements,
and, while not "site specific," was an acceptable estimate of
the potential number of sites in the permissible areas. Id. at
812-813.
Finally, Justice Diamond rejected plaintiffs’ request for
additional discovery, because the administrative record before
the court was "through, extensive and comprehensive." Id. at
813.
The decision of the New York County Supreme Court was
unanimously affirmed by both the Appellate Division, 241
A.D.2d 360, 663 N.Y.S.2d 812 (1st Dep’t 1997), and the New
York Court of Appeals, 91 N.Y.2d 382, 694 N.E.2d 407, 671
N.Y.S.2d 406, 1998 WL 77749 (1998). Holding that the state
constitutional standards governing regulations such as ilic
Amended Zoning, Resolution are substantially the same as the
federal standards, the Court of Appeals relied on both state
and federal authority to hold that the Amended Zoning
Resolution had a purpose unrelated to speech, imposed
restrictions no broader than necessary to implement the
legitimate concerns of the legislature, and provided for
reasonable alternative avenues of communication. Thus, after
a thorough review of the record below, the Court of Appeals
held that the resolution did not violate the state constitution
and could be enforced by defendants. 671 N.Y.S.2d at ;
1998 WL 77749, at *12.
On February 26, 1998, plaintiffs returned to this Court
seeking a temporary restraining order and a preliminary
injunction against the enforcement of the Amended Zoning
Resolution.
DISCUSSION
Defendants contend that the doctrine of collateral estoppel
precludes plaintiffs from relitigating in this Court the same
factual issues that have already been tried and decided in the
state court. The preclusive effect of a state court determination
in a subsequent federal proceeding is governed by the rules of
the state in which the prior action was tried. 28 U.S.C. §
1738; Allen v. McCurry, 449 U.S. 90, 96, 66 L. Ed. 2d 308,
101 S. Ct. 411 (1980); Sokol v. New York, 113 F.3d 303, 306
(2d Cir. 1997). Under New York law, a factual issue
determined in a prior litigation is given preclusive effect if the
issue to be precluded was necessarily decided in the prior
litigation and the party opposing preclusion had a full and fair
opportunity to litigate the issue. Ryan v. New York Tel. Co.,
62 N.Y.2d 494, 478 N.Y.S.2d 823, 826, 467 N.E.2d 487 (N.Y.
Ct. App. 1984); Sokol, 113 F.3d at 306. Collateral estoppel
"has the dual purpose of protecting litigants from the burden
of relitigating an identical issue with the same party ... and
of promoting judicial economy by preventing needless
litigation." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326,
58 L. Ed. 2d 552, 99 S. Ct. 645 (1979). Where factual
determinations by a state court are at issue, collateral estoppel
also "promote[s] the comity between state and federal courts
that has been recognized as a bulwark of the federal system."
Allen, 449 U.S. at 95-96.
The First Amendment standard applicable to a
content-neutral zoning ordinance regulating the location of
adult entertainment businesses was established by the Supreme
Court of the United States in City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925
(1985). Under Renton, zoning ordinances of the kind at issue
in these actions are content neutral time, place, and manner
regulations if the legislative purpose is other than the
restriction of speech. According to Renton, such a content
neutral ordinance is permissible if it is “designed to serve a
substantial governmental interest" and "allows for reasonable
alternative avenues of communication." Id. at 50.
Each of the inquiries set out by the Supreme Court in
Renton -- the legislative purpose, whether the ordinance is
designed to advance a substantial government interest, and the
availability of reasonable alternative avenues of
communication -- is a factual issue that has been litigated by
plaintiffs and decided by the Supreme Court for New York
County and affirmed by both the Appellate Division and the
New York Court of Appeals. After extensive submissions by
the parties, Justice Diamond held that (1) the City acted in
response to concerns regarding the secondary effects of adult
establishments; (2) the City reasonably relied on a number of
studies to conclude that adult businesses produce adverse
secondary effects; (3) the Amended Zoning Resolution is "no
broader than necessary" to prevent those adverse effects; and
(4) defendants had "more than sufficiently demonstrated that
_the permissible areas" for adult establishments remaining in the
City “are suitable for commercial enterprise and are large
enough to accommodate adult establishments which must
relocate." 653 N.Y.S.2d at 803, 808, 809, 814.
40a
Each of those inquiries was necessarily decided in the state
court proceedings, and plaintiffs had a full and fair opportunity
to litigate the issues in the state courts. Accordingly, if the
doctrine applies, those issues are precluded from further
litigation in this Court under the doctrine of collateral estoppel,
tow known as issue preclusion.
Plaintiffs offer no persuasive reason to be permitted to
relitigate in this Court the very same issues they litigated in
the state courts in order to persuade this Court to reach a
different factual result. Plaintiffs contend that under England
v. Louisiana State Board of Medical Examiners, 375 U.S. 411,
11 L. Ed. 2d 440, 84 S. Ct. 461 (1964), they reserved their
rights to relitigate these issues in federal court. The England
case preserves a plaintiff's right to relitigate in federal court
all issues related to the federal issues when the federal court
is plaintiff's chosen forum, and plaintiff is forced, over its
objection, to litigate those issues in state court because a
federal judge sua sponte decides to abstain under Pullman.
Here, however, plaintiffs’ chosen forum was emphatically the
state court. After plaintiffs filed these actions in state court,
defendants removed them to this Court. Plaintiffs promptly
moved to remand all their claims to the state court, and fought
vigorously to return to their chosen forum, the state court.
England does not govern or prohibit issue preclusion in these
actions.
Plaintiffs also contend that they did not get a full and fair
Opportunity to litigate in state court. Under the New York law
of issue preclusion, the party seeking preclusion has the burden
of demonstrating the identity of the issues and that the issues
were actually and necessarily decided in the prior litigation.
The party opposing collateral estoppel has the burden of
establishing the absence of a full and fair Opportunity to
litigate the issues in the prior action. Sokol, 113 F.3d at 306.
A determination of whether a full and fair Opportunity to
4la
litigate was provided requires consideration of the "realities"
of the prior litigation. The factors to be considered include: (1)
the nature of the forum and the importance of the claim in the
prior litigation; (2) the incentive to litigate and the actual
extent of litigation; (3) the competence and experience of
counsel; and (4) the foreseeability of future litigation. Ryan,
478 N.Y.S.2d at 827.
Plaintiffs complain that the actions were decided on
summary judgment and after inadequate opportunity for
discovery. Plaintiffs contend that their expert was not given
adequate time to prepare his analysis of the purported
alternative sites. Plaintiffs also argue that they were denied
access to "critical information" such as how maps of
permissible relocation areas were generated by the City.
Finally, plaintiffs argue that they were not permitted to file a
surreply after the City introduced new evidence and arguments
on reply relating to the availability and suitability of potential
sites.
The mere fact that a case is resolved on summary judgment
and does not proceed to trial does not deny a party a full and
fair opportunity to litigate. See, e.g., Tobias v. First City
National Bank and Trust Co., 709 F. Supp. 1266, 1270-1271
(S.D.N.Y. 1989). Moreover, the "full and fair opportunity"
requirement does not entitle a party to unlimited discovery.
Indeed, state court proceedings permitting no discovery at all
can be entitled to preclusive effect in federal court. McBride
v. Bratton, 1996 U.S. Dist. LEXIS 16348, 1996 WL 636075,
at *3 (S.D.N.Y. November 4, 1996), aff'd, 122 F.3d 1056 (2d
Cir. 1997). It is undisputed that plaintiffs viewed the New
York courts as the main forum and the New York Constitution
as the principal basis for their extremely important effort to
prevent New York City from requiring them to close and
move their businesses. Plaintiffs were represented by
experienced and highly competent counsel. They were
42a
permitted some discovery, and had a full Opportunity to press
any procedural grievances in addition to their substantive
claims in the state courts.
Plaintiffs were permitted to take the deposition of Marilyn
Mammano, designated by defendants as the staff person
familiar with the calculation made by defendants with respect
to available alternative sites. Plaintiffs camplain that Ms.
Mammano was repeatedly directed not to answer questions,
including questions related to the methodology of calculating
the number of alternative sites and the suitability of alternative
sites. Plaintiffs also complain that their requests for documents
on these topics -- those reviewed by Ms. Mammano before the
deposition, and other documents -- were denied. On the other
hand, plaintiffs themselves point to a great deal of information
from the Mammano deposition that they used to support their
position in the state court, including testimony relating to the
degree of defendant’s investigation of alternative sites.
The New York courts themselves addressed plaintiffs’
demands for discovery. Justice Diamond noted that plaintiffs’
expert had had zoning maps for 10 months before he made his
submission in opposition to defendants’ motion for summary
judgment, and that with those maps, he could have estimated
the acreage size of the permissible zones. Nevertheless, he
failed to calculate the number of potential relocation sites
under his methodology. She also expressly addressed
plaintiffs’ claim that additional discovery was needed, "in view
of the present administrative record that this court finds to be
thorough, extensive and comprehensive." 653 N.Y.S.2d at 813.
Moreover, the New York Court of Appeals noted that before
issuing a decision, the New York County Supreme Court
ordered defendants to respond to interrogatories served by the
Hickerson plaintiffs, to provide maps of alternative sites that
eliminated encumbered areas, and to produce Ms. Mammano
for deposition. The record before Justice Diamond totaled
43a
more than 10,000 pages, including pleadings, affidavits,
exhibits and briefs. 671 N.Y.S.2d at , 1998 WL 77749, at
*4.
In sum, plaintiffs have not shown that they did not have a
full and fair opportunity to litigate ably and vigorously in the
state courts the very factual issues that are dispositive of their
claim under the First Amendment. Accordingly, the factual
findings of the New York County Supreme Court as affirmed
by the Appellate Division and the Court of Appeals are
entitled to preclusive effect.
It should be noted that the zoning resolution attacked in this
case under the First Amendment is before the Second Circuit
in the case of Buzzetti v. City of New York, 1997 U.S. Dist.
LEXIS 4383, 1997 WL 164284 (S.D.N.Y. April 8, 1997).
That case has been argued before the Second Circuit and is
pending decision in that court.
This order denying a preliminary injunction is stayed until
the close of court busimess on Monday, March 9, 1998 so that
plaintiffs can promptly seek from the Second Circuit a stay
pending appeal.
SO ORDERED.
932 F. Supp. 550”
RACHEL HICKERSON, et al., Plaintiffs
-against-
THE CITY OF NEW YORK, et al., Defendants
TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT,
CENTER FOR THE COMMUNITY INT EREST, et al.,
Defendants-Intervenors,
*k*
AMSTERDAM VIDEO INC., et al.,
-against-
THE CITY OF NEW YORK, et al.,
Defendants,
TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT,
CENTER FOR THE COMMUNITY INTEREST, et al.,
Defendants-Intervenors.
96 Civ. 2203 (MGC), 96 Civ. 2204 (MGC)
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
~ The caption in this case is exactly the same as those of the federal court
Cases previously set forth in this appendix, with two exceptions: at the
time this opinion was rendered, Joseph Miele was named as defendant
Commissioner of Buildings, Department of Buildings of the City of New
York; The Center for the Community Interest’s corporate name was the
American Alliance for Rights and Responsibilities.
45a
June 27, 1996
NEW YORK CIVIL LIBERTIES UNION FOUNDATION,
Attorneys for Plaintiffs Rachel Hickerson, et al., New York,
New York, By: Beth Haroules, Esq., Norman Siegel, Esq.,
Christopher Dunn, Esq.
LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY &
CAMBRIA, Attorneys for Plaintiffs Amsterdam Video Inc., et
al., New York, New York, By: Herald Price Fahringer, Esq.,
Erica T. Dubno, Esq.
PAUL A. CROTTY, Corporation Counsel of the City of New
York, Attorney for Defendants, New York, New-York, By:
Albert Fredericks, Assistant Corporation Counsel, Gabriel
Taussig, Assistant Corporation Counsel.
CEDARBAUM, J.
Plaintiffs in these two actions challenge the constitutionality
of a recent amendment to the New York City zoning
resolution which regulates the zoning of "adult
establishments." Defendants, the City of New York and three
City officials, removed the actions to this Court because the
complaint$ assert claims under the United States Constitution
as well as the New York State Constitution. Plaintiffs move to
remand the actions, including the federal constitutional claims,
to the state court. For the reasons that follow, these cases
warrant abstention under the doctrine of Railroad Commission
v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643
(1941). Accordingly, all of the claims arising under the New
York Constitution are remanded to the Supreme Court of New
York County. Remand of the federal claims is denied but the
federal claims are stayed pending resolution of the state
claims.
46a
ee
Background
The New York Citv Council adopted Text Amendment N
950384 ZRY (the “resolution") to the city zoning resolution on
October 25, 1995. The resolution adds to the zoning resolution
special provisions applicable to “adult establishments." It
defines an adult establishment as "a commercial establishment
where a ’substantial portion’ of the establishment includes an
adult book store, adult eating or drinking establishment, adult
theater, or other adult commercial establishment, or any
combination thereof." Resolution § 12-10. (The resolution is
attached to the Amsterdam complaint and also is Exhibit A to
the Declaration of Albert Fredericks dated May 16, 1996.)
Aduit bookstores are defined as bookstores that have as a
“substantial portion" of their stock-in-trade books, magazines,
photographs, films, video cassettes, or other printed matter or
visual representations that are "characterized by an emphasis
upon the depiction or description of ‘specified sexual
activities’ or "specified anatomical areas.’" Id. § 12-10(a). An
adult eating or drinking establishment is an eating or drinking
establishment that "regularly features" either live performances
that are "characterized by an emphasis on ’specified
anatomical areas’ or ‘specified sexual activities’"; films or
other photographic reproductions that are "characterized by an
emphasis upon the depiction or description of ’specified sexual
activities’ or ’specified anatomical areas’"; or "employees who,
as part of their employment, regularly expose to patrons
‘specified anatomical areas’"; and "which is not customarily
open to the general public during such features because it
excludes minors by reason of age." Id. § 12-10(b). An adult
theater is a theater that "regularly features" films or other
similar photographic reproductions that are "characterized by
an emphasis on the depiction or description of ’specified
sexual activities’ or "specified anatomical areas’" or live
performances that are "characterized by an emphasis on
‘specified anatomical areas’ or "specified sexual activities,’”
47a
and "which is not customarily open to the general public
during such features because it excludes minors by reason of
age." Id. § 12-10(c). Other adult commercial establishments
are facilities that "feature[] employees who as part of their
employment, regularly expose to patrons ’specified anatomical
areas’ and which is not customarily open to the general public
during such features because it excludes minors by reason of
age." § 12-10(d).
The resolution defines "specified sexual activities" and
"specified anatomical areas." Id. § 12-10. It does not define
“substantial portion" as that term is used in the definition of
adult establishment and adult bookstore, but provides that
for the purpose of determining whether a "substantial portion"
of an establishment includes an adult bookstore, adult eating
or drinking establishment, adult theater, or other adult
commercia! establishment, or combination thereof, the
following factors shall be considered: (1) the amount of floor
area and cellar space accessible to customers and allocated to
such uses; and (2) the amount of floor area and cellar space
accessible to customers and allocated to such uses as compared
to the total floor area and cellar space accessible to customers
in the establishment.
Id. With respect to the definition of adult bookstores the
resolution provides:
For the purpose of determining whether a bookstore has a
“substantial portion" of its stock in materials defined in
paragraphs (a)(1) or (a)(2) hereof, the following factors shall
be considered: (1) the amount of such stock accessible to
customers as compared to the total stock accessible to
customers in the establishment; and (2) the amount of floor
area and cellar space accessible to customers containing such
stock; and (3) the amount of floor area and cellar space
48a
accessible to customers centaining such stock as compared to
the total floor area and cellar space accessible to customers in
the establishment.
Id. The resolution does not define the phrases "regularly
features" or "characterized by an emphasis," which are used in
the definitions of adult eating and drinking establishment and
adult theater.
The resolution provides that adult establishments are not
permitted in various zoning districts, including residential
districts and some commercial and manufacturing districts. Id.
§§ 32-01; 42-01; Fredericks Decl. P 8. It provides further that
adult establishments must be located at least 500 feet from a
church or school or another adult establishment. Resolution §§
32-01(b) & (c); 42-01(b) & (c). Under the resolution, one
adult establishment only is permitted on a single zoning lot
and no adult establishment is permitted to exceed 10,000
square feet in floor area and cellar space. Id. §§ 32-01(d) &
(e); 42-01(d) & (e). The resolution also includes special sign
regulations for adult establishments. Id. §§ 32-69; 42-55.
Non-conforming adult establishments must, under the
resolution, terminate within one year of the effective date of
the resolution. Id. § 52-77. The resolution includes special
“amortization” _ provisions, however, for owners of
non-conforming establishments who have not recovered
substantially all of their capital investment in the establishment
(or non-conforming sign). Such owners may apply to the
Board of Standards and Appeals for permission to continue for
additional time sufficient for the Owner to recover
"substantially all of the financial expenditures incurred related
to the non-conformity." Id. § 72-40.
The resolution became effective on November 1, 1995, less
than one year ago. Accordingly, no establishment has yet been
49a
required to close or move because of its provisions. Moreover,
the resolution has not been construed by any court.
Plaintiffs in the first action (the "Hickerson plaintiffs") are
Manhattan and Bronx residents who allege that they regularly
patronize adult establishments. They claim that the resolution
will prevent them from continuing to patronize the adult
establishments they currently frequent, and will reduce
significantly the number of alternative establishments available
to them. The Hickerson plaintiffs contend that the resolution
violates their rights to free expression. They assert three claims
under article I section 8 of the New York Constitution and
three claims under the First and Fourteenth Amendments to the
United States Constitution. As their first cause of action,
plaintiffs allege that the resolution intentionally restricts
expression because it is directed at the "content and the time,
place and manner of the messages conveyed in ‘adult
businesses,"" and that it is not necessary to advance a
compelling interest and does not advance an interest in the
least restrictive manner. (Hickerson Compl. PP 72-73.) As
their second cause of action, the Hickerson plaintiffs claim
that the resolution "fails to restrict expression by means ‘no
broader than necessary’ to achieve a legitimate and important
governmental objective." (Id. P 77.) As a third cause of action
plaintiffs allege that the resolution violates article I section 8
of the New York Constitution in that it is too vague. (Id. PP
79-83.) As a fourth cause of action, plaintiffs assert that the
resolution violates the First Amendment to the United States
Constitution by failing to satisfy the requirements of City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 89 L. Ed. 2d
29, 106 S. Ct. 925 (1986). (Id. PP 84-90.) As a fifth cause of
action, the complaint alleges that the resolution is a
content-based restriction that is not narrowly tailored to serve
a compelling government interest, in violation of the First
Amendment. (Id. PP 91-94.) Finally, as a sixth cause of
action, the complaint alleges that the resolution violates the
50a
First and Fourteenth Amendments because it is too vague. (Id.
PP 95-99.)
Plaintiffs in the second action (the "Amsterdam plaintiffs")
are Owners and operators of business establishments which
they allege are adult establishments as defined by the
resolution. They allege that the resolution will force them to
terminate the operation of their businesses and thereby cause
them significant economic harm. The Amsterdam plaintiffs
assert fourteen causes of action, thirteen of which allege
violations of the state constitution. Four causes of action
elaborate different aspects of plaintiffs’ claim that the
resolution violates their rights to free expression under article
I section 8. (Amsterdam Compl. PP 143-238.) Five causes of
action assert that the resolution denies plaintiffs equal
protection of the law in viclation of article | section 11. (Id.
PP 239-54, 274-92. 312-17.) The Amsterdam plaintiffs also
assert two causes of action alleging that the resolution is
unconstitutionally vague, (id. PP 270-73, 293-311), one cause
of action alleging that the resolution grants an impermissible
preference in favor of religion in violation of article I section
3, (id. PP 255-69), and one cause of action alleging that the
amortization provisions of the resolution are inadequate and
constitute an unconstitutional taking without just compensation
in violation of article I section 7, (id. PP 318-31). As a
fourteenth cause of action the Amsterdam complaint alleges
that the resolution violates plaintiffs’ rights to free speech and
to equal protection of the law in violation of the First and
Fourteenth Amendments to the United States Constitution. (Id.
PP 332-43.)
Plaintiffs in both cases seek declarator y and injunctive
relief. The Hickerson plaintiffs request in addition costs and
attorneys’ fees.
Sla
Pullman Abstention
Abstention is an extraordinary and narrow exception to "the
virtually unflagging obligation of the federal courts to exercise
the jurisdiction given them." Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 813, 817,
47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976) (citations omitted);
see also Quackenbush v. Allstate Ins. Co., 135 L. Ed. 2d 1,
1996 U.S. LEXIS 3609, 64 U.S.L.W. 4379, 4382, 116 S. Ct.
1712 (June 3, 1996). Abstention is warranted only in
"exceptional circumstances" in which the court’s decision not
to exercise its jurisdiction would "clearly serve an important
countervailing interest." Colorado River, 424 U.S. at 813
(quoting County of Allegheny v. Frank Mashuda Co., 360
U.S. 185, 189, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 (1959)).
Federal courts are also obligated, however, to avoid deciding
a federal constitutional question unless decision is "absolutely
necessary to a decision of the case." Ashwander v. Tennessee
Valley Auth., 297 U.S. 288, 347, 80 L. Ed. 688, 56 S. Ct. 466
(1936) (Brandeis, J. concurring). Of particular relevance here
is the well-settled rule that a case should be decided first on
state law grounds in order to eliminate the need to decide a
federal constitutional question. Siler v. Louisville & Nashville
R.R., 213 U.S. 175, 53 L. Ed. 753, 29 S. Ct. 451 (1909).
In Railroad Commission v. Pullman Co., 312 U.S. 496, 85
L. Ed. 971, €1 S. Ct. 643 (1941), the plaintiffs challenged an
order of the Texas Railroad Commission requiring railroad
sleeping cars to be staffed by a person with the rank of
Pullman conductor. All Pullman conductors were white, and
all Pullman porters were African-American. Until the
challenged order, Pullmar. porters were in charge of sleeping
cars on trains carrying only one such car. The Pullman
Company and the railroads argued in federal court that the
order violated Texas law and the Equal Protection, Due
Process, and Commerce Clauses of the United States
52a
Constitution. Pullman porters intervened and claimed that the
order unconstitutionally discriminated against them. The
district court found in the plaintiffs’ favor and enjoined
enforcement of the order. Id. at 497-98.
The Supreme Court reversed, holding that the district court
should have stayed its hand until the Texas courts had ruled on
the state law question. The Court explained that the porters’
federal claim raised a "more than substantial" constitutional
question, which the federal courts ought to avoid unless "no
alternative to its adjudication is open." Id. at 498. The Court
then examined the Commission’s power to issue the order
under Texas law, and found that because the governing lav.
was "far from clear," a decision by a federal court could not
"escape being a forecast rather than a determination." Id. at
499 A ruling by a federal court would amount to only a
"tentative decision" which could be "displaced tomorrow by a
state adjudication." Id. at 500. Emphasizing that the plaintiffs
appealed to the equitable powers of the federal court, the
Court invoked the obligation of a court sitting in equity to
exercise sound discretion in employing equitable remedies. It
noted that "few public interests have a higher claim upon the
discretion of a federal chancellor than the avoidance of
needless friction with state policies." Id. In view of the
important policies of avoiding both constitutional questions
and undue interference with state gevernments, the Court held
that abstention from the constitutional claim was required, and
remanded the case to the district court with instructions to stay
the action pending proceedings in the state court to determine
the validity of the order under state law. Id. at 501-502.
Under Pullman, “abstention is appropriate in cases
presenting a federal constitutional issue which might be
mooted or presented in a different posture by a state court
determination of pertinent state law." Colorado River, 424
U.S. at 814 (quoting County of Allegheny, 360 U.S. at 189
53a
(internal quotation marks omitted)). The relevant state law
must be unclear to warrant abstention. E.g. Wisconsin v.
Constantineau, 400 U.S. 433, 27 L. Ed. 2d 515, 91 S. Ct. 507
(1971); Reetz v. Bozanich, 397 U.S. 82, 25 L. Ed. 2d 68, 90
S. Ct. 788 (1970); Pullman. Abstention is not required in
every case in which a plaintiff raises claims under both the
federal constitution and "parallel state constitutional
provisions." Hawaii Housing Auth. v. Midkiff, 467 U.S. 229,
237 n.4, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (1984). The
Supreme Court has ordered abstention in several cases,
however, in which a ruling by a state court as to whether the
challenged statute violated the relevant state constitution could
avoid the need for the determination of a federal constitutional
question. Harris County Comm’rs Court v. Moore, 420 U.S.
77, 43 L. Ed. 2d 32, 95 S. Ct. 870 (1975); Reetz; City of
Meridian v. Southern Bell Telephone & Telegraph Co., 358
U.S. 639, 3 L. Ed. 2d 562, 79 S. Ct. 455 (1959) (per curiam);
see also Askew v. Hargrave, 401 U.S. 476, 28 L. Ed. 2d 196,
91 S. Ct. 856 (1971) (per curiam) (remanding for
consideration of abstention under Pullman abstention principles
explained in Reetz where plaintiffs alleged that Florida statute
violated federal constitution and another action pending in
state court challenged same statute under state constitution).
Plaintiffs’ principal challenge to the resolution is their claim
that the resolution violates their rights of free expression. The
New York Court of Appeals has held that the New York
Constitution protects rights to free expression that the First
Amendment does not protect. See People ex rel. Arcara v.
Cloud Books, Inc., 68 N.Y.2d 553, 510 N.Y.S.2d 844 (1986).
Article I section 8 provides: "Every citizen may freely speak,
write and publish his sentiments on all subjects, being
responsible for the abuse of that right; and no law shall be
passed to restrain or abridge the liberty of speech or of the
press." This language is different from that of the First
Amendment, which provides: "Congress shall make no law .
54a
ee
obviate the need to decide the federal constitutional questions.
See Pullman; Ashwander; Siler.
The state constitutional claims present questions whose
resolution is "far from clear." Although the New York Court
of Appeals decided in Town of Islip v. Caviglia that a zoning
presented topless dancers, strippers, male or female
g,
‘7.
B
sf
:
o
:
i
:
g
q.
d
e
S
the subject matter of the books, films, or other materials
Stocked or "featured" by the adult establishment. By contrast.
the resolution defines all of the affected establishments by
reference to whether their wares or live performances or the
Plaintiffs in these cases allege that the resolution will require
more than eighty-four percent of existing adult establishments
to move or close. The court found in Caviglia that substantial
space in Islip was available for adult establishments, but
plaintiffs here contend that insufficient alternative space is
available for the large number of adult establishments in New
York City. Because of these and other differences between the
Caviglia case and these cases, the outcome of plaintiffs’ state
constitutional challenge is uncertain. As was true of ‘he state
law claims in Pullman, a federal court’s judgment of the
resolution’s constitutionality under the state constitution would
be a mere forecast rather than a determination. These claims
should be decided by the state courts before any federal
constitutional issue is reached.
Defendants argue that abstention is unwarranted because the
federal constitutional claims do not logically depend on the
state constitutional claims. (Def. Mem. at 14.) But the federal
claims in Pullman also did not depend on the state law claim
raised there. Abstention is appropriate because plaintiffs have
brought claims under a provision of the state constitution that
differs from the provision of the federal constitution on which
they rely, the state constitutional law is not settled, and
resolution of the claims under the state constitution may avoid
the need for a determination of the federal constitutional
questions.
In addition, plaintiffs’ claims that the resolution is
unconstitutionally vague depend on interpretation of a new
resolution that has not been construed by any court. The
meaning of phrases in the resolution such as "substantial
portion” and "regularly feature" are not at once apparent. A
federal court should not be the first to construe these
provisions. Abstention is warranted to give the New York
courts an opportunity to construe the resolution, for the courts
could interpret these phrases in such a way as to change or
56a
eliminate the vagueness claims. Greater New York Metro.
Food Council v. McGuire, 6 F.3d 75 (2d Cir. 1993) (per
curiam).
For all of these reasons, these cases present exceptional
circumstances which require abstention. The state claims are
remanded to state court, and the federal claims are stayed until
conclusion of the state litigation.
Burford Abstention, Remand, and Supplemental Jurisdiction
As explained above, plaintiffs’ state constitutional claims are
remanded and the federal claims stayed. Plaintiffs, however,
want more. They seek to have their federal constitutional
claims adjudicated by a state court. Plaintiffs argue that the
doctrine of Burford abstention and 28 U.S.C. § 1441(c) both
authorize remand of the claims arising under the Constitution
of the United States. In addition, the Amsterdam plaintiffs
Suggest that remand is authorized by 28 U.S.C. § 1367.
Only extraordinary circumstances justify a federal court’s
refusal to decide claims that fall within its original jurisdiction.
The court’s responsibility to exercise jurisdiction is especially
strong when, as here, substantial claims under the federal
constitution are presented. Plaintiffs argue that this obligation
is limited to the duty to protect a plaintiff's right to have
federal constitutional claims adjudicated by a federal court.
Plaintiffs reject defendants’ correlative right to a federal
forum.
Plaintiffs are the masters of their complaints, and these
plaintiffs could have assured themselves a state forum by
bringing only claims arising under state law. Plaintiffs are, of
course, entitled to raise any claim for which they have a good
faith basis. But if plaintiffs choose to assert claims under the
Constitution of the United States, defendants are entitled to
57a
remove the case to federal court. 28 U.S.C. § 1441(a) (1994).
The City of New York and its officials are entitled to have
their responsibilities under the federal constitution determined
by a federal court. Although I have held that exceptional
circumstances are present which justify staying the federal
claims until the state courts have decided the state
constitutional claims, the circumstances that would justify a
decision entirely to relinquish the federal claims do not exist.
That is, the circumstances justify delaying decision on the
federal claims, but not complete abdication. For the reasons
explained below, the authority on which plaintiffs rely does
not provide a basis for remand of the federal constitutional
claims.
1. Burford Abstention
In Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424,
63 S. Ct. 1098 (1943), the Supreme Court held that the district
court, as a matter of sound equitable discretion, should have
declined to exercise jurisdiction over the plaintiff’ s due process
challenge to an order of the Texas Railroad Commission. The
Commission’s order, which granted the defendant the right to
drill certain oil wells, was issued pursuant to a statute
empowering the Commission to regulate oil production in
Texas. Because of the detailed, comprehensive regulatory
scheme involved, the Court held that the district court should
have abstained. The Court noted that if federal courts were
available for review of the Commission’s orders, "delay,
misunderstanding of local law, and needless federal conflict
with the state policy" would inevitably result, id. at 327, and
that oil production involved "basic problems of Texas policy,"
id. at 332. The Court described the Texas courts as “working
partners with the Railroad Commission in the business of
creating a regulatory system for the oil industry." Id. at 326.
The Court concluded that such challenges should be left to the
58a
state courts to be handled as "one more item in a continuous
series of adjustments." Id. at 332 (citation omitted).
The Court has since described the doctrine of Burford
abstention as follows:
Where timely and adequate state-court review is available, a
federal court sitting in equity must decline to interfere with the
proceedings or orders of state administrative agencies: (1)
when there are "difficult questions of state law bearing on
policy problems of substantial public import whose importance
transcends the result in the case then at bar"; or (2) where the
"exercise of federal review of the question in a case and in
similar cases would be disruptive of state efforts to establish
a coherent policy with respect to a matter of substantial public
concern."
New Orleans Public Serv., Inc. v. Council of the City of New
Orleans, 491 U.S. 350, 361, 105 L. Ed. 2d 298, 109 S. Ct.
2506 (1989) (quoting Colorado River). The Second Circuit has
held that "the aim of Burford abstention is to avoid resolving
difficult state law issues involving important public policies or
avoid interfering with state efforts to maintain a coherent
policy in an area of comprehensive regulation or
administration." Bethphage Lutheran Serv.. Inc. v. Weicker,
965 F.2d 1239, 1243 (2d Cir. 1992) (citations and internal
quotation marks omitted).
Plaintiffs argue that Burford abstention is warranted because
"the question of zoning needs is an issue of local land use
policy and, therefore, is more properly considered in the first
instance by the state court." (Hickerson Pls. Mem. at 7,
Amsterdam Pls. Mem. at 19 (quoting Rose v. Village of Upper
Nyack, 669 F. Supp. 654, 656 (S.D.N.Y. 1987)).) Plaintiffs
contend that decision by a federal court would disrupt the
City’s efforts to establish a coherent zoning scheme for adult
59a
establishments.
Burford abstention cannot be justified in the cases before the
Court. They are not challenges to discrete orders under a
comprehensive regulatory scheme as in Burford. If decision of
the federal constitutional claims becomes necessary, a federal
court will not be required to resolve difficult questions of state
law, because plaintiffs attack an entire scheme under the
Constitution and the state courts will have already construed
the resolution. Decision by a federal court also would not
disrupt the City’s efforts to establish a coherent policy. Indeed,
it would make little sense to hold that federal court
adjudication would unduly interfere with local policy when it
is the local government defendants who brought the case to
federal court, and who seek to keep it here. Burford abstention
is not appropriate.
2. Remand - 28 U.S.C. § 1441(c)
Plaintiffs contend that 28 U.S.C. § 1441(c) authorizes
remand of these actions in their entireties, including the federal
claims. Section 1441(c) was amended in 1990 by the Judicial
Improvements Act. Prior to its amendment, this section
provided:
Whenever a separate and independent claim or cause of action,
which would be removable if sued upon alone, is joined with
one or more otherwise non-removable claims or causes of
action, the entire case may be removed and the district court
may determine all issues therein, or, in its discretion, may
remand all matters not otherwise within its original
jurisdiction.
28 U.S.C. § 1441(c) (1988). The provision now reads as
follows:
Whenever a separate and independent claim or cause of action
within the jurisdiction conferred by section 1331 of this title
is joined with one or more otherwise non-removable claims or
causes of action, the entire case may be removed and the
district court may determine all issues therein, or in its
discretion, may remand all matters in which State law
predominates.
28 U.S.C. § 1441(c) (1994).
Plaintiffs rely on the last clause of the amended provision,
which now authorizes remand of all "matters" in which state
law predominates. Plaintiffs contend that Congress changed the
language to permit district courts to remand an entire case that
includes a federal «!aim when state law predominates in the
case as a whole.
Plaintiffs’ argument is not persuasive. First, section 1441(c)
does not apply to these cases because plaintiffs’ federal claims
are not "separate and independent" from their state law claims.
Prior to 1990, the Supreme Court held that "where there is a
single wrong to plaintiff, for which relief is sought, arising
from an interlocked series of transactions, there is no separate
and independent claim or cause of action under § 1441(c)."
American Fire & Casualty Co. v. Finn, 341 U.S. 6, 14, 95 L.
Ed. 702, 71 S. Ct. 534 (1951). The Court observed in
Carnegie-Mellon University v. Cohill that federal claims are
not separate and independent from pendent claims such as
plaintiffs’ state constitutional claims. Carnegie-Mellon
University v. Cohill, 484 U.S. 343, 354, 98 L. Ed. 2d 720,
108 S. Ct. 614 (1988). Congress left this "separate and
independent" language unchanged when it amended the statute,
and therefore the provision continues to be inapplicable to
cases comprised of federal question claims and pendent state
claims. Borough of West Mifflin v. Lancaster, 45 F.3d 780 (3d
Cir. 1995).
6la
Second, even in those cases to which it applies, section
1441(c) does not authorize remand of federal claims. The
sparse legislative history relating to the phrase on which
plaintiffs rely provides little guidance except that it contains no
indication of an intention to effect a radical change in federal
question jurisdiction. It is not clear what Congress meant by
“matters in which State law predominates." Congress was
aware, however, of the federal courts’ strong view of their
obligation to exercise jurisdiction over federal claims properly
before them, and it is extremely unlikely that Congress would
have used such ambiguous language to accomplish so
significant a change in federal jurisdiction. Some district court
decisions, on which plaintiffs rely, have concluded that the
revised provision does authorize remand of entire cases
including federal claims. Moralez v. Meat Cutters Local 539,
778 F. Supp. 368 (E.D. Mich. 1991); Alexander by Alexander
v. Goldome Credit Corp., 772 F. Supp. 1217 (M.D. Ala.
1991); Moore v. DeBiase, 766 F. Supp. 1311 (D.N.J. 1991);
Holland v. World Omni Leasing, 764 F. Supp. 1442 (N.D.
Ala. 1991); Martin v. Drummond Coal Co., 756 F. Supp. 524
(N.D. Ala. 1991). The better view, however, is that it does
not. See Buchner v. Federal Deposit Ins. Corp., 981 F.2d 816
(Sth Cir. 1993); Kabealo v. Davis, 829 F. Supp. 923 (S.D.
Ohio 1993), aff'd, 72 F.3d 129 (6th Cir. 1995). History,
language, and logic compel the conclusion that under section
1441(c), the phrase "matters in which State law predominates"
does not encompass federal claims.
Finally, even if 1 had discretion under this statute to remand
plaintiffs’ federal constitutional claims, | would not do so.
Plaintiffs have raised claims under the First Amendment; their
allegations that the resolution also violates the state
constitution do not diminish the importance of the federal
constitutional issues. A “matter” that includes a substantial
federal constitutional claim cannot be a matter in which state
law predominates.
62a
Reeeeaeehentiiattatenamamn ea
3. Supplemental Jurisdiction - 28 U.S.C. § 1367
The Amsterdam plaintiffs appear to contend that 28 U.S.C.
doctrines of pendent and ancillary jurisdiction, now called
"supplemental" jurisdiction. Subsection (a) of the statute
In any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental!
Jurisdiction over all other claims that are so related to claims
in the action within such Original jurisdiction that they form
part of the same case or controversy under Article III of the
United States Constitution.
28 U.S.C. § 1367(a) (1994), Subsection (c) provides that "the
district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a)” under certain
circumstances. § 1367(c). Nothing in section 1367 authorizes
For all of the reasons stated above, plaintiffs’ motions to
remand the claims arising under the United States Constitution
are denied.
Motions for Intervention
63a
conclusion of the state proceedings and without prejudice to
motions for intervention in the state proceedings.
Conclusion
For the foregoing reasons, the motions to remand are
granted in part and denied in part. All claims arising under the
Constitution of New York are remanded to the Supreme Court
of New York County. All claims arising under the Constitution
of the United States are stayed pending determination of the
state claims in state court. The motions for intervention are
denied without prejudice.
SO ORDERED.
91 N.Y.2d 382
STRINGFELLOW’S OF NEW YORK, LTD., Appellant,
v.
THE CITY OF NEW YORK, HON. RUDOLPH w.
GIULIANI, as Mayor of the City of New York, JOSEPH B.
ROSE, as Director of City Planning, Department of City
Planning of the City of New York, and GASTON SILVA, as
Commissiorer of Buildings, Department of Buildings of the
City of New York, Respondents,
TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT,
CENTER FOR THE COMMUNITY INTEREST,
BELLAIRE/BELL-VILL CIVIC ASSOCIATION, BNOS
ISRAEL GIRLS’ SCHOOL, BOWNE PARK CIVIC
ASSOCIATION, BRIARWOOD COMMUNITY
ASSOCIATION, BRONX COMMUNITY BOARD # 12,
BROOKLYN CIVIL COUNCIL, BROOKLYN TENANTS
COUNCIL, CARDINAL SPELLMAN HIGH SCHOOL,
COALITION OF UNITED RESIDENTS FOR A SAFER
ENVIRONMENT, COLLEGE POINT BOARD OF TRADE,
COMMITTEE FOR A BETTER AND SAF ER NOSTRAND
BNAI SHLOIMA ZALMAN, CROWN HEIGHTS
TAXPAYERS AND CIVIC ASSOCIATION, DOUGLASTON
CIVIC ASSOCIATION, EAST MIDWOOD
NEIGHBORHOOD ASSOCIATION, COUNCILMEMBER
ANDREW ERISTOFF, GRAND CENTRAL PARTNERSHIP,
HOLLISWOOD CIVIC ASSOCIATION, HUDDE JUNIOR
HIGH SCHOOL PARENTS ASSOCIATION, JACKSON
HEIGHTS COMMUNITY DEVELOPMENT
CORPORATION, KINGS HIGHWAY DISTRICT
65a
MANAGEMENT ASSOCIATION, KINGSWAY JEWISH
CENTER; LAWYERS’ COMMITTEE ON VIOLENCE,
MANHATTAN TERRACE CIVIC ASSOCIATION,
COUNCILMEMBER HELEN MARSHALL, MIDWOOD
CIVIC ACTION COUNCIL INC., NEW NORTHERN
BOULEVARD BUSINESS ASSOCIATION, NORTHERN
BOULEVARD MERCHANTS’ ASSOCIATION, 100-299
EAST 77TH STREET BLOCK ASSOCIATION, PROSPECT
PARK YESHIVA, QUEENS BRADDOCK CIVIC
ASSOCIATION, QUEENS VILLAGE CIVIC
ASSOCIATION, REAL ESTATE BOARD OF NEW YORK,
RESIDENTS AGAINST _ STREET PROSTITUTION,
ROSEDALE BLOCK ASSOCIATION, ROSEDALE CIVIC
ASSOCIATION, COUNCILMEMBER JOHN SABINI, 34TH
STREET PARTNERSHIP, UNITED CIVIC COUNCIL OF
QUEENS, UNITED COMMUNITY CIVIC ASSOCIATION,
COUNCILMEMBER ANTHONY WEINER, WEST 45TH
STREET BLOCK ASSOCIATION, WEST 47TH/WEST
48TH STREET BLOCK ASSOCIATION and WEST
90°S/WEST 100°S NEIGHBORHOOD COALITION,
Intervenors-Respondents.
AMSTERDAM VIDEO INC., A & X ENTERTAINMENT
INC., d/b/a Playpen I], ADULT VIDEO, INC., ASCOT
SPACE AMUSEMENT, INC., d/b/a Ascot Theatre, BIG
APPLE CINEMAS INC., d/b/a Show Follies Theater, BRETT
DISTRIBUTORS, INC., d/b/a Media Distributors, CAPRI
CINEMA INC., CAPWELL ENTERTAINMENT, INC., d/b/a
Legz Diamond’s Playhouse, CHURCH STREET CAFE INC.,
d/b/a Baby Doll Lounge, COLLEGE PT. REST. CORP., d/b/a
Gallagher’s II, CRAZY FANTASY VIDEO, INC., CUPID’S
TREASURES, INC., d/b/a Banana Video and Unicorn, DARA
DISTRIBUTORS INC., d/b/a Love Shack, DESIRE VIDEO
INC., E & A BOOKS, INC., E & A VIDEO AND
MAGAZINE INC., ED-MART BAR & GRILL INC., d/b/a
66a
Penny Whistle, FOR THE PEOPLE THEATRES OF N.Y.,
INC., d/b/a Fair Theatre, FOUR KEYS ENTERPRISES, INC.,
d/b/a Hollywood Peepshows, FOURTEENTH ST.
JHM VIDEO CORP., JUM OPERATING CORP., d/b/a
Peepland, JVR VIDEO CENTER INC., d/b/a Playground,
KINEMATICS MERCHANDISING & DISTRIBUTORS,
INC., d/b/a Kinematics, KISMA VIDEO, INC., L & T
VIDEO, INC., d/b/a Badlands Adult Video, MADELINE
D’ANTHONY ENT. INC., d/b/a Harmony Theatre,
MANHATTAN VIDEO INC., MARQUIS VIDEO INC., d/b/a
Marquis Video, MIRAGE PRODUCTIONS INC., d/b/a Love
Shack, MONTANA HOLDINGS INC., d/b/a Runway 69,
NAWAN ENTERTAINMENT INC., d/b/a Euro World,
NILUPUL VIDEO INC., N.R.S. VIDEO INC., NY VIDEO
INC., d/b/a Love Shack, PABON THEATRE CORP., d/b/a
Eros Theatre, PEREGRINE ENTERPRISES, INC., d/b/a
Paradise Club, R.E.J.M., INC., d/b/a Big Top, RON BOB
PUB INC., d/b/a Gallagher’s, SAMI’S VIDEO
WAREHOUSE, d/b/a Warehouse on the Block, LTD,
SERENDIB VIDEO INC., d/b/a Serendib Video, SPH VIDEO
CORP.,STAR DISTRIBUTORS, LTD, STATEWIDE VIDEO
INC., STEAM HEAT INC., STS VIDEO INC., d/b/a Adult
Video, SUEMAR VIDEO, INC., d/b/a Goodtime Video,
THIRD AVENUE ENTERTAINMENT INC., d/b/a XXX
Video, THUNDER VIDEO INC., TOWN VIDEO SALES,
INC., d/b/a Les Hommes Book Shop, VIDEO, VIDEO,
VIDEO, INC., VIDEO 30 OF QUEENS INC., d/b/a
Ecsxxxtasy Video, WEST VIDEO INC., ZIDEO VIDEO
INC., 21 ANN STREET CORP., d/b/a Ann Street Adult
Entertainment, 130 C STREET CORP., d/b/a Christopher
67a
Street Book Shop, 155 VIDEO CENTER CORP., d/b/a
Peepworld, 300 BOOK CENTER, 303 W.42ND STREET
ENTERPRISES INC., d/b/a Show World, 323 CANAL ST.
INC., 325 W. 45TH ST. REST. CORP., d/b/a Private Eyes,
35-30 38th St. Corp., d/b/a Cityscape, 412 8TH AVE. CORP.,
d/b/a Nude New York City, 45-08 VERNON BLVD. CORP.,
d/b/a Riverhead Inn, 603 VIDEO INC., 610 VIDEO STORE
INC., 691 8TH AVENUE CORP., 691 VIDEO CENTER
CORP., 693 VIDEO CORP., d/b/a TNL Video, 711
ASSOCIATES LTD., d/b/a Peepland, 729 6TH AVENUE
CORP., d/b/a Billy’s Topless, 733A CORP., d/b/a Video
Palace, 763 VIDEO STORE INC., 777-779 8TH AVE.
CORP., d/b/a Hollywood Twin, 81-22 BAXTER AVE.
LOUNGE INC., d/b/a ILDA’S PLACE H, Appellants,,
v.
THE CITY OF NEW YORK, et al., Respondents,
TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT,
CENTER FOR THE COMMUNITY INTEREST, et al.,
Intervenors-Respondents.
RACHEL HICKERSON, DEREK JONES, TY
MCCONNELL, and ELLIOT STAMLER, Appellants,
v.
THE CITY OF NEW YORK, et al., Respondents,
TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT,
CENTER FOR THE COMMUNITY INTEREST, et al.,
Intervenors-Respondents.
February 24, 1998
68a
COUNSEL: No. 17:
Mark J. Alonso, for appellant Stringfellow’ s.
Leonard Koerner, for City respondents.
Frederick A.O. Schwarz, Jr., for intervenor-respondent Times
Square.
Wayne A. Cross, for all other intervenors-respondents.
Association of the Bar of the City of New York, amicus
curiae.
No. 18:
Herald Price Fahringer, for appellant Amsterdam Video.
Leonard Koerner, for City respondents.
Frederick A.O. Schwarz, Jr.. for intervenor-respondent Times
Square.
Wayne A. Cross, for all other intervenors-respondents.
Council of Regulated Adult Liquor Licensees; First
Amendment Lawyers Association: and Association of the Bar
of the City of New York, amici curiae.
No. 19:
Arthur N. Eisenberg, for Hickerson appellants.
Leonard Koerner, for C ity respondents.
69a
Frederick A.O. Schwarz, Jr., for intervenor-respondent Times
Square.
Wayne A. Cross, for all other intervenors-respondents.
First Amendment Lawyers Association; and Association of the
Bar of the City of New York, amici curiae.
TITONE, J.:
This appeal concerns the validity of New York City’s
Amended Zoning Regulation governing the location of adult
entertainment establishments throughout the five boroughs. We
conclude that on this record the Supreme Court correctly
granted summary judgment declaring that the challenged
ordinance does not violate plaintiffs’ constitutional rights of
free expression.
I. Factual Background
The "adult" establishments at the center of this controversy
offer various forms of sexual expression. These businesses
include bookstores, theaters, stores dealing in videotaped
material and places of live entertainment. In 1965, there were
only nine such establishments in New York City. That figure
has fluctuated over the past thirty years, but the last decade
has experienced a steady growth in the industry, with sections
of Manhattan and Queens showing the greatest development.
By 1993, there were 177 adult establishments operating in
New York City: 107 in Manhattan, 44 in Queens, 15 in
Brooklyn, eight in the Bronx and three in Staten Island.
In September of 1993, the Department of City Planning
(DCP) undertook an evaluation of the impact of such property
uses on urban life. Published in September 1994, the DCP
study was divided into two parts. First, the DCP examined
70a
similar studies conducted in nine other localities: Islip, New
York; Los Angeles, California; Indianapolis, Indiana: Whittier,
California; Austin, Texas; Phoenix, Arizona; Manatee County,
Florida; New Hanover County, North Carolina; and the State
of Minnesota. The DCP found evidence in these reports that
adult businesses often have such negative secondary impacts
as increased crime rates, depreciated property values and
deteriorated community character. The DCP also sought to
identify the specific adverse secondary effects caused by adult
establishments in New York City itself. To accomplish that
Studies of the City’s adult uses. Among the other materials
examined were a 1977 report by the City Planning
Commission (CPC); a 1983 Annual Report of the Mayor’s
Office of Midtown Enforcement; 2 1993 Study conducted by
the Chelsea Action Coalition and Manhattan Community
Board 4; testimony at an October 1993 public hearing before
the Task Force on the Regulation of Sex-Related Businesses:
an April 1994 Times Square Business Improvement District
(TSBID) study; and a 1993 survey compiling media accounts
and complaint correspondence to City agencies.
proliferated, they tended to cluster. In Manhattan, for example,
adult businesses were concentrated in central locations such as
the Times Square area. In the other boroughs, such businesses
lined major vehicular routes such as Queens Boulevard in
Queens and Third Avenue in Brooklyn. Additionally, the vast
majority of adult establishments were located in zoning
districts that permitted residential development.
Based on the material before it, the DCP determined that
there were significant adverse impacts attributable to adult
7la
enterprises in the City, including downward pressure on
property values and increased crime rate in areas where adult
uses are most concentrated. A pivotal finding of the DCP was
that a large majority of surveyed business and community
organizations believe that their neighborhoods are adversely
affected by the presence of adult uses and that this perception
itself leads to disinvestment and a marked decline in economic
and pedestrian activity.
II. The Challenged Ordinance
The Zoning Resolution of the City of New York, adopted on
December 15, 1960, regulates commercial establishments in
the City. Historically, the Resolution did not distinguish
between adult establishments and other commercial ventures.
Like other businesses, adult enterprises simply had to satisfy
the requirements for the particular "use group" into which they
were classified. Consequently, adult uses were permitted in
most of the City’s commercial and manufacturing districts,
which frequently also allowed residential development or were
mapped close to residential districts.
Prompted by the findings and final recommendation of the
DCP study that adult establishments should be regulated
differently from other commercial establishments because of
their unique negative effects, the City Planning Commission
(CPC) directed the DCP in November of 1994 to draft a set of
adult use zoning restrictions. Concomitantly, the City Council
imposed a one-year moratorium on the creation or enlargement
of adult-use establishments.
On March 21, 1995, the DCP and the City Council Land
Use Committee jointly sought to amend the Zoning Resolution
and establish a permanent and comprehensive set of
regulations governing adult uses. Over the next several
months, the City’s 59 community boards, five borough boards
72a
and borough presidents, the CPC and the City Council
reviewed the proposed amendments and conducted public
hearings. On September 18, 1995, the CPC approved the
proposed amendments, noting that they were "an appropriate
and necessary response to the adverse secondary effects
stemming from adult establishments" and that they nonetheless
continue "to provide ample opportunity for adult
establishments to locate and Operate throughout New York
City." After further public hearings and debate, the City
Council gave final approval to Text Amendment N 950384
ZRY on October 25, 1995.
As adopted by the City Council, the amendments are
applicable to any "adult establishment," defined as those
commercial enterprises in which a "substantial portion" of the
premises are used as an "adult book store," an "adult eating or
drinking establishment," an "adult theater" or "other adult
commercial establishment" (Amended Zoning Resolution §
categories that "regularly feature" or devote a "substantial
portion" of their stock-in-trade to entertainment or material
that is "characterized by an emphasis on" "specified anatomical
areas" or "specified sexual activities" (id.). "Adult eating and
drinking establishments,” "adult theaters" and "other adult
commercial establishments" are covered only if they exclude
minors because of their age (id.).
The Amendments to the zoning code include an array of site
limitations and anti-clustering provisions. Under provisions
that pre-date the Amendments, new commercial
establishments, including new adult establishments, are barred
from the City’s residential zones. Under the Amendments.
adult establishments, new and old, are now also barred from
certain districts that are zoned for manufacturing and
commercial use but also permit residential development. The
regulated uses are permitted in all other manufacturing districts
73a
and in all high-density, general commercial districts (id., at §§
32-01[{a], 42-01[a]).
Within those districts where adult uses are authorized, the
adult establishment must be located at least 500 feet from
schools, houses of worship, day care centers, other adult uses
and zoning districts where new residential development is
allowed (id., at §§ 32-01[b], 42-01[b]). In addition, no more
than one adult establishment may be located on a single
zoning lot, and these establishments cannot exceed 10,000
square feet of usable floor area and cellar space (id., at §§
32-01[d] & [e], 42-01[d] & [e]). The amendments also impose
restraints on the size, placement and illumination of accessory
business signs (id., at §§ 32-69, 42-55).
Any adult establishment operating in a prohibited location
must either conform or terminate its business within one year
of the Amendments’ effective date (id., at §§ 52-77, 52-734).
An exception to this termination requirement is available for
existing businesses which are non-compliant only because (1)
their area exceeds 10,000 square feet, (2) they are located on
a zoning lot with another adult use, or (3) they are situated
less than 500 feet from another adult establishment (id., at §§
32-01[f], 42-01[f]). Another narrow exception is made for
otherwise conforming adult uses that fall out of compliance
because of the subsequent siting of a school or house of
worship within 500 feet of their boundaries (§§ 32-01[b],
42-01[b]}). Lastly, adult establishments faced with the one-year
termination deadline can apply for an extension to the Board
of Standards and Appeals, which may permit the applicant to
remain open for a limited time to amortize any substantial and
unrecovered costs associated with the adult portion of the
establishment (id., at § 72-40).
III. Procedural History
74a
On February 27, 1996, the Amsterdam Video plaintiffs,
consisting of more than 100 Owners and operators of adult
actions in Supreme Court, New York County, against the City
and related officials. Plaintiffs alleged that the Amended
Constitution. Plaintiffs sought relief in the form of a judgment
declaring the zoning Amendments unconstitutional and
Defendants removed the case to the United States District
Court for the Southern District of New York, but on plaintiffs’
application the court remanded Plaintiffs’ causes of action
motions of TSBID, the Center for Community Interest, and 45
other community groups, business organizations and local
elected officials and consolidated the actions for hearing.
On August 26, 1996, defendants moved for summary
judgment. The Amsterdam Video and Stringfellow’ s plaintiffs
cross-moved for summary judgment; the Hickerson plaintiffs
opposed defendants’ motions but declined to cross-move for
Summary judgment on the theory that the case involved
material factual disputes warranting a trial. Before issuing its
decision, Supreme Court ordered additional discovery, in
particular directing defendants to answer interrogatories served
by the Hickerson plaintiffs, to provide maps to demonstrate the
areas where adult uses would be permitted when encumbered
areas were eliminated, and to Produce for a deposition a
75a
person familiar with the DCP’s calculation of the total number
of alternative sites that would be available to relocated adult
establishments under the Amendments. A voluminous record
of pleadings, affidavits, exhibits and briefs totaling more than
10,000 pages was before the court on the various summary
judgment motions.
On October 23, 1996, Supreme Court granted defendants’
motions for summary judgment and declared that “the
Amended Zoning Resolution does not violate plaintiffs’ rights
of freedom of expression guaranteed under the State
Constitution and is, therefore, constitutional” ( Stringfellow’s
of New York, Ltd. v. City of New York, 171 Misc. 2d 376,
653 N.Y.S.2d 801). Applying the test articulated by this Court
in Matter of Town of Islip v Caviglia (73 N.Y.2d 544,
558-559, 542 N.Y.S.2d 139, 540 N.E.2d 215), Supreme Court
first concluded that the Amendments were content neutral. The
court found in the City’s planning studies sufficient evidence
of adverse secondary effects to support use of its zoning
authority to address a serious neighborhood problem.
Additionally, the court held that the Amendments were no
broader than necessary to achieve their stated purpose, with
zoning being the most appropriate response to address existing
and anticipated future problems. Further, in the court’s view,
defendants had sufficiently demonstrated that the number of
potential relocation sites under the Amended Zoning
Resolution was more than adequate to accommodate the
existing number of businesses. Plaintiffs’ claim of a lack of
available alternative sites, in contrast, was speculative and
rested on discredited theories. Thus, the court concluded, no
issues of material fact existed requiring a trial. The Appellate
Division unanimously affirmed (Stringfellow’s of New York,
Ltd. v. City of New York, 241 A.D.2d 360, 663 N.Y.S.2d
812) and plaintiffs took an appeal as of right pursuant to
76a
CPLR 5601(b)(1).?
IV. Analysis
N.E.2d 265; Matter of Harbison v City of Buffalo, 4 N.Y.2d
553, 176 N.Y.S.2d 598, 152 N.E.2d 42). Because they are
legislative enactments, these land use regulations generally
health, safety and welfare (see, McMinn v Town of Oyster
Bay, 66 N.Y.2d 544, 548-549, 498 N.Y.S.2d 128, 488 N.E.2d
888, 235 N.E.2d 897). Thus, even if the validity of a provision
is "fairly debatable,” the municipality’s judgment as to its
necessity must control ( Matter of Town of Bedford v Village
of Mt. Kisco, 33 N.Y.2d 178, 186, 351 N.Y.S.2d 129, 306
N.E.2d 155).
Municipal zoning authority is not, however, completely
unfettered. Ordinances such as the one challenged here that
aim to curb "adult" uses implicate speech or conduct that is
protected by the First Amendment (see, e.g., Schad v Mount
Ephraim, 452 U.S. 61, 65. 68 L. Ed. 2d 671, 101 S. Ct. 2176;
Miller v California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 s.
an Appellate Division order dated October 24, 1996 and a subsequent
agreement among the parties. On September 23, 1997, this Court denied
defendants’ request for a vacatur of the stay ( Stringfellow’s of New York,
Ltd. v. City of New York, 90 N.Y.2d 933, 664 N.Y.S.2d 266, 686 N.E.2d
1362).
77a
Ct. 2607; Joseph Burstyn, Inc. v Wilson, 343 U.S. 495,
502-503, 96 L. Ed. 1098, 72 S. Ct. 777) and by Article I, 8 of
the New York State Constitution.* Consequently, in weighing
the validity of such zoning regulations, courts must consider
the intertwined constitutional values of free expression.
In this State, the proper balance between community needs
and free expression under our Constitution has been delineated
in Matter of Town of Islip v Caviglia (73 N.Y.2d 544, 542
N.Y.S.2d 139, 540 N.E.2d 215, supra). At issue in Islip was
a zoning ordinance that confined adult uses to industrially
zoned areas and prohibited them from locating within 500 feet
of a number of certain sensitive receptors or within one-half
mile of each other. The ordinance had been prompted by
studies of conditions locally and elsewhere which
demonstrated the harmful impact of adult businesses on the
surrounding community. We concluded that the ordinance
satisfied both federal constitutional standards (see, City of
Renton v Playtime Theatres, Inc. (475 U.S. 41, 89 L. Ed. 2d
29, 106 S. Ct. 925) and the distinct protections afforded by
our State Constitution. In so ruling, the Court considered
whether the "predominant purpose" of the challenged
ordinance was to ameliorate the negative secondary effects of
adult uses rather than to suppress their content, whether the
ordinance was "narrowly tailored to affect only those uses
shown to produce the unwanted secondary effects" and
whether it provided adequate alternative locations for adult
businesses within the Town (73 N.Y.2d at 552-555, citing,
City of Renton v Playtime Theatres, 475 U.S. 41, 89 L. Ed. 2d
29, 106 S. Ct. 925, supra; Young v American Mini Theatres,
427 U.S. 50, 49 L. Ed. 2d 310, 96 S. Ct. 2440). With respect
» Article I, § 8 provides in relevant part: “Every citizen may freely speak,
write and publish his sentiments on all subjects, being responsible for the
abuse of that right; and no law shall be passed to restrain or abridge the
liberty of speech or of the press.”
78a
whether the Town’s ordinance was "justified by concerns
unrelated to speech," whether it was "no broader than needed
to achieve its purpose" under the State constitutional principles
set forth in People ex rel. Arcara v Cloud Books (68 N.Y.2d
553, 510 N.Y.S.2d 844, 503 N.E.2d 492) and, finally, whether
"if the ordinance [were] enforced the total number of adult
bookstores would decline or * * * fewer potential customers
would be able to conveniently patronize them" (73 N.Y.2d at
557-560). It is against the template of Islip, that we measure
plaintiffs’ claims in these cases.
A. The Ordinance’s Purpose Is Unrelated to Speech
The threshold issue here is whether the City’s zoning
Amendments are purposefully directed at controlling the
content of the message conveyed through adult businesses or
are instead aimed at an entirely separate societal goal. The
federal constitutional analysis requires examination of the
ordinance’s "predominant Purpose" (see, City of Renton v
Playtime Theatres, supra), while the State constitutional
inquiry focuses on whether there has been "a purposeful
attempt to regulate speech" (Town of Islip v Caviglia, supra,
at 557). In the context of these facts, however, the difference
in verbiage does not significantly affect the outcome, since it
is apparent from the Amendments’ legislative history that
ameliorating the negative social consequences of proliferating
adult uses was the City’s only goal.
Before enacting the Resolution, the City Council assembled
an extensive legislative record connecting adult establishments
and negative secondary effects, including numerous studies on
the effects of adult establishments both within and without
New York City. One of these Studies, prepared by the TSBID,
focused on the impact of adult uses On property values and the
incidence of crime in the Times Square area, in the heart of
. 79a
| Manhattan. The TSBID identified four study blocks (those
| containing at least one adult enterprise) and four neighboring
| control blocks (those with no sex-related establishments), and
then compared those data with similar statistics for the District
as a whole, the wider Times Square area, all of Manhattan,
and all of New York City. The data included crime statistics,
property valuations and 53 formal interviews with business and
real estate enterprises.
The study concluded that "the rate of increase of the total
actual assessed values of the Eighth Avenue Study Blocks was
less than the rate of increase for the Control Blocks along
Ninth Avenue. To a lesser extent, the rate of increase of the
actual total assessed value of the 42nd Street Study Block is
less than that of the 42nd Street Control Block." It also
determined that "within the study blocks, non-adult businesses
with adult establishments nearby showed a deflated cate of
property value growth, compared to the adult establishments
themselves which increased in value at a higher rate."
Similarly, the underlying data showed a correlation between a
| concentration of adult establishments and increased crime.
4 Over the five years preceding the study, for example, police
| statistics showed that there was an estimated 54% decrease in
crime in the Times Square area, a decrease which was
paralleled by a decrease in adult establishments. The study also
found significant "patterns," notably that there were many
more criminal complaints on the study blocks than the control
blocks and that the heaviest incidence of prostitution arrests
occurred in the three block study area of dense concentration
of adult establishments.
The Chelsea Action Coalition and Manhattan Community
Board 4 prepared a second study of the effects that sex-related
businesses have on other businesses in the Chelsea section of
| Manhattan. The study incorporated a survey of 100 Chelsea
businesses located near triple-X video stores and peep shows
80a
nl
in the neighborhood. A majority of those Surveyed indicated
that adult uses had a negative impact on their businesses and
on the economic viability of the community as a whole.
The DCP independently Surveyed six study and control
areas--two in Manhattan, and one in each of the remaining
boroughs. More than 80% of the real estate brokers responding
to the survey reported that an adult establishment tends to
depress the market value of property within 500 feet: similarly,
community organizations overwhelmingly reported their
perceptions that adult businesses negatively affect the
community. Although the DCP acknowledged that its analysis
of the hard data regarding the relationship between adult uses
and urban ills did not yield conclusive results, a reading of its
report as a whole indicates that the negative perception of
adult enterprises held by the business community and the
public itself results in disinvestment, with the concomitant
deterioration inthe social and economic well-being of the
surrounding area.
Finally, the City additionally reviewed conclusions reached
by city councils and town boards throughout the country. A
1984 study conducted for the City of Indianapolis, for
uses. The Indianapolis Study included a nationwide survey of
real estate appraisers. A large majority of the appraisers
indicated that, in their professional opinions, an adult
bookstore would have a negative effect on the value of both
residential and commercial Properties located within a one
block radius of the store. Stil] another example was a 1997
Los Angeles study that included a survey of real estate
professionals and businesses. The survey indicated that a
concentration of adult establishments adversely affected the
value of surrounding commercial and residential property,
made it more difficult to rent office space and retain
8la
commercial tenants in the area, and made it harder for area
businesses to attract and retain customers.
In view of the legislative record upon which the City
Council rested its decision to regulate adult uses, we agree
with the courts below that enactment of the Amended Zoning
Resolution was not an impermissible attempt to regulate the
content of expression but rather was ainied at the negative
secondary effects caused by adult uses, a_ legitimate
governmental purpose (see, Town of Islip v Caviglia, supra).
Plaintiffs’ reliance on isolated comments from several City
Council members and other City officials as evidence of an
alleged improper motive to eradicate this form of expression
is unavailing. A similar claim was rejected in Islip, where we
recognized that courts will not "invalidate a municipal zoning
ordinance simply because one or more legislators sought to
suppress protected expression * * * . It is the motive of the
Legislature, not individual legislators, that is controlling"
(Islip, 73 N.Y.2d at 552 n.2).
Nor is it significant that definitions of adult uses in the
Amended Zoning Resolution are based in part on the content
of the entertainment offered rather than exclusively on the age
of the businesses’ clientele (cf., Town of Islip v Caviglia,
supra, at 557). The test under both Islip and Renton is not
whether the regulated establishments are defined without
reference to content but whether-the ordinance’s goal is
unrelated to suppressing that content (Islip, 73 N.Y.2d at 557;
Renton, 475 U.S. at 44, 47-50; see also Young v American
Mini Theatres, 427 U.S. at 52-54, 70-71 [plurality opinion]).
That test is plainly met here.
Plaintiffs’ complaints about the sufficiency of the evidence
on which the City Council based its decision are unpersuasive.
In Islip, we explicitly acknowledged the value of studies from
other jurisdictions (73 N.Y.2d at 550, 553). Further, it is clear
82a
from the comments of the CPC upon its approval of the
Amendments that the appropriate municipal officials
considered the comparability and the reliability of the other
jurisdictions’ studies and found them satisfactory on both
counts. As the CPC noted, "while none of the other studies
considers a municipality which duplicates New York City in
terms of variety of neighborhoods and built conditions, * * *
the findings of adverse secondary effects and the conditions
found in these other studies are relevant to the different
neighborhoods of New York City." Plaintiffs have not offered
any factual or legal basis to question that finding.
Moreover, the City did not rely exclusively on generic
conclusions drawn from out-of-area studies but also conducted
Studies of its own. Contrary to plaintiffs’ contentions, the
“non-empirical,” anecdotal evidence that comprised the bulk of
the local studies does not render those studies worthless. In the
proper context, anecdotal evidence and reported experience can
be as telling as statistical data and can serve as a legitimate
basis for finding negative secondary effects (see, e.g., City of
Renton v Playtime Theatres, Inc., 475 U.S. at 44, supra; ILQ
Investments, Inc. v City of Rochester, 25 F.3d 1413,
1416-1417 [8th Cir], cert denied 513 U.S. 1017, 130 L. Ed. 2d
73, 345: 3. Cx 578), particularly where, as here, the
non-empirical information is extensive and indicative of a
clear relationship between adult uses and urban decay.
B. The Amendments Are No Broader Than Necessary
Based upon an extensive analysis of the impacts of such
establishments in the City, the Amendment represents a
communities and community institutions that are most
vulnerable to their adverse impacts.
It is now well recognized that municipalities can
constitutionally bar adult establishments from, or within, a
specified distance of residentially-zoned areas and facilities in
which families and children congregate (see, City of Renton v
Playtime Theatres, supra, at 44; Young v American Mini
Theatres, supra, at 52; Town of Islip v Caviglia, supra, at
549, 563). Moreover, zoning ordinances may be used to
prohibit an adult business from operating within a specified
distance of another in order to avoid the undesirable impacts
associated with the clustering (see, Young v American
Mini-Theatres, supra, at 52; Town of Islip v Caviglia, supra,
at 563).
Relying on our State constitutional standard (see, People ex
rel. Arcara v Cloud Books, supra, at 558), plaintiffs insist that
defendants should have pursued less restrictive methods of
addressing the problems caused by adult uses, such as more
aggressive enforcement of existing penal and public nuisance
laws, developing targeted signage requirements and limiting
adult-use zoning restrictions to new establishments. However,
the record here shows that the City Council reasonably
determined that the listed alternatives would not adequately
address problems it sought to ameliorate.
According to its Report approving the proposed
Amendments, the CPC concluded that restricting only new
adult uses "would have the effect of freezing certain locations
and certain neighborhoods as the situs of adult establishments,"
making the reversal of. existing adult-use-related blight
impossible. The CPC also looked at the possibility of sign
regulations, but found, based on the studies before it, that such
a narrow approach would not suffice to address such ills as
reduced property values, economic stagnation, heightened
84a
crime and change in neighborhood character. As to the
efficacy of more aggressive law enforcement measures, the
CPC hearings revealed that such measures are generally only
partially successful in stemming the criminal activity that often
surrounds adult establishments.
Contrary to plaintiff's assertions in Stringfellow’s, the City
was not obligated on this record to distinguish among different
types of adult uses based on the social class of their clientele
or the nature of the adult entertainment they provide. Indeed,
such distinctions may well have themselves run afoul of
constitutional prohibitions (see, Islip, 73 N.Y.2d at 558).
Significantly, the CPC itself found that "all of the adult uses
which would have been covered by the proposed regulations
have been shown to produce adverse secondary effects * * *
. Nothing in the studies or in the public testimony justifies
distinctive treatment of any adult use." To the extent that
certain individual establishments may legitimately claim that
their facilities do not contribute to urban blight, their argument
does not impair the constitutionality of the challenged
legislation, since "the validity of a statute * * * is not to be
determined from its effect in a particular case, but upon its
general purpose and its effect to that end" (City of Rochester
v Gutberlett, 211 N.Y. 309, 316, 105 N.E. 548; see also,
ILQ Investments, Inc. v City of Rochester, 25 F.3d at 1418).
C. Reasonable Alternative Avenues of Communication
To satisfy constitutional requirements, the City additionally
must assure reasonable alternative avenues of communication
(see, City of Renton v Playtime Theatres, 475 U.S. at 53-54).
As this Court stated in Islip, there must be (1) "ample space
available for adult uses after the rezoning" and (2) no showing
by the challenger that enforcement of the ordinance will either
substantially reduce the total number of adult outlets or
significantly reduce the accessibility of those outlets to their
85a
potential patrons (73 N.Y.2d at 555, 560).
Relying on a formula derived from City of Renton v
Playtime Theatres (supra), the federal courts have generally
concluded that reasonable alternative avenues of
communication exist if there is sufficient land area open for
use by adult businesses "in all stages of development from raw
land to developed, industrial, warehouse, office and shopping
space that is criss-crossed by freeways, highways and roads"
(475 U.S. at 53-54). Under Renton, land that is already
occupied by commercial and manufacturing facilities and
undeveloped land that is not for sale or lease is not to be
automatically deemed unavailable. Further, any reduction in
profitability caused by a forced relocation is not relevant to the
availability inquiry (see, City of Renton v Playtime Theatres,
supra, at 53; Woodall v City of El Paso, 49 F.3d 1120,
1124-1125, cert denied 516 U.S. 988, 116 S. Ct. 516, 133 L.
Ed. 2d 425; Grand Brittain, Inc. v City of Amarillo, Tex., 27
F.3d 1068, 1070; see also, Town of Islip v Caviglia, supra, at
555, 560 [areas of a municipality set aside for adult uses need
not be prime locations]}). Rather, the inquiry is limited to the
physical and legal availability of alternative sites within the
municipality’s borders and whether those sites are part of an
actual business real estate market (see, Topanga Press, Inc. v
City of Los Angeles, 989 F.2d 1524, 1530-1531, cert denied
511 U.S. 1030, 128 L. Ed. 2d 190, 114 S. Ct. 1537; see also,
Woodall v City of El Paso, supra; Alexander v City of
Minneapolis, 928 F.2d 278).
In determining whether proposed relocation sites are part of an
actual business real estate market, the courts have considered
such factors as their accessibility to the general public, the
surrounding infrastructure, the pragmatic likelihood of their
ever actually becoming available and, finally, whether the sites
are suitable for "some generic commercial enterprise" (see, 989
F.2d at 1531). Notably, these considerations dovetail nicely
86a
with Islip’s requirement that there be "ample space available
for adult uses after the rezoning" and no showing of a
substantial reduction in the total number cf adult outlets or the
accessibility of those outlets to their potential patrons (73
N.Y.2d at 555, 560). With these considerations as a backdrop,
we turn now to the specific facts and contentions presented
here.
Plaintiffs assert, and the municipal defendants do not
dispute, that the Amendments’ enforcement will lead to the
forced relocation of some 84% of the City’s 177 adult
businesses. Given the extent of the dislocation, it is incumbent
upon the municipal defendants to demonstrate that sufficient
alternative receptor sites are available. The City has asserted
that the space available for adult uses constitutes over 11% of
the City’s total land area and about 4% when reduced by land
commercial use. They further assert, based on maps prepared
by City officials, that the amended zoning code leaves at least
500 potential sites for adult establishments to relocate and
operate.
According to the City’s submissions, the Amendment wil]
allow adult businesses to remain in districts that permit a wide
mix of commercial, retail, entertainment and manufacturing
uses. All of the areas in Manhattan zoned for adult use and at
least 80% of the land area in the other boroughs are within a
10-minute walk from a Subway line or a major bus route.
These supported allegations by the City satisfy its initial
burden of showing that the space designatea for adult uses is
adequate to accommodate the 177 existing adult businesses.
Plaintiffs, in challenging defendants’ proof, rely heavily on
an affidavit by Robert McLaughlin, a land-use planning and
local government consultant who actually visited the sites the
City identified as potential receptors. McLaughlin alleged that
87a
~~ iaaaiiaai
many of the sites are in truth unavailable because they
currently house long-term occupants such as governmental and
public utility facilities that are unlikely to yield to new tenants
| of any sort. Other sites, according to McLaughlin, lack the
|
necessary infrastructure or lie on wetland property that is not
suitable for commercial development. Overall, McLaughlin
concluded, the City’s zoning plan does not allow for adequate
alternative avenues for adult expression,
| The McLaughlin affidavit, however, is not sufficient to raise
a triable question of fact as to the availability of enough
| potential receptor sites. First, the affidavit’s utility is undercut
| by McLaughlin’s reliance on several assumptions that are
| inconsistent with controlling legal principles. McLaughlin, for
| example, took the position that "industrial areas" are generally
unsuitable for generic commercial uses. In Islip, however, this
Court specifically approved a local zoning ordinance that
restricted adult uses to an industrial zone (73 N.Y.2d at 548,
555; accord, City of Renton v Playtime Theatres, supra, at 53).
Similarly, McLaughlin eliminated undeveloped land,
waterfront property, warehouse areas and parking lots as
unsuitable receptors, although both this Court and the Renton
Court expressly recognized such areas as potentially available
relocation sites.
| The most significant flaw in McLaughlin’s affidavit,
| however, is the absence of any attempt to quantify his
observations or to make concrete allegations as to precisely
| how many of the 500 potential receptor sites identified by
defendants were, in his estimate, unavailable. To be sure, the
affidavit lists a significant number of sites that are
pragmatically unavailable because their current uses are so
entrenched that they are unlikely to become part of the
commercial real estate market in the foreseeable future.
Included in this category are such diverse sites as those that
house the northern half of Federal Plaza in Manhattan, the
88a
Clay Pit Ponds State Park Preserve in Staten Island, a New
York City fire house in Brooklyn and a United Parcel Service
facility in Queens. However, McLaughlin’s criticisms about
various individual sites do not provide an adequate counter to
defendants’ supported claim that within the available acreage
as a whole there are more than enough receptor sites to
accommodate the existing adult entertainment industry.
Even if the criticized sites are eliminated, the absence of
any quantification in the McLaughlin affidavit makes it
impossible to determine whether what remains of the 500
identified sites is insufficient to accommodate the 177 adult
businesses that will have to relocate once the Amendments are
implemented. For example, despite McLaughlin’s observations
that several tracts within the nonresidential zone along the far
west side of Manahttan are physically or pragmatically
unavailable, his affidavit does not contain the hard factual data
necessary to establish that, with the elimination of these sites
and with due consideration of the dispersal requirement, the
City’s claim that Manhattan wil] accommodate some 75 adult
uses represents a significant overestimation. Given this
shortfall, the accuracy of the City’s overall calculations was
not called into serious question. Similarly, the McLaughlin
affidavit did not provide a basis for inferring that the result of
the new zoning controls would “restrict in any significant way
those wishing to [patronize adult establishments]" ( Town of
Islip v Caviglia, Supra, at 554). Thus, the McLaughlin
affidavit is speculative and presents no impediment to
summary judgment (see, Romano v Stanley, 90 N.Y.2d 444,
452-452, 661 N.Y.S.2d 589, 684 N.E.2d 19).
D. Plaintiffs’ Remaining Claims
The Amsterdam Video and Stringfellow’ s plaintiffs argue that
the Amendments’ enforcement will lead to an unconstitutional
taking because much of the substantial investments they have
89a
made in their businesses will be lost if they are required to
relocate. They further contend that the one-year amortization
provision in the ordinance (ZR §§ 52-734, 52-77) is too short
to give them an opportunity to recoup their investments. These
arguments are unpersuasive, however, because they fail to take
into account the effect of the statutory provisions for hardship
extensions. Under these provisions, a nonconforming adult
establishment may apply to the Board of Standards and
Appeals for permission to continue to operate beyond the
one-year amortization period set forth in the statute where it
can show that it has made substantial expenditures related to
the nonconformity, that such expenditures cannot be recouped
within a year and that the requested extension is the minimum
necessary to permit such recoupment (ZR § 72-40). Having
failed to seek relief under this provision, plaintiffs are not now
in a position to complain that their constitutional due-process
rights have been violated (see, Parkview Associates v. New
York, 71 N.Y.2d 274, 525 N.Y.S.2d 176, 519 N.E.2d 1372
(1988), cert denied, 488 U.S. 801, 102 L. Ed. 2d 9, 109 S. Ct.
| 30; Town of Islip v Zalak, 165 A.D.2d 83, 95, 566 N.Y.S.2d
306).
Equally unavailing is plaintiffs contention that the
Amendments are unconstitutionally vague. As a threshold
matter, the Hickerson plaintiffs, purportedly patrons of adult
establishments, lack standing to assert these claims because the
Amendments do not directly regulate their conduct (see
generally, Axelrod v Sobol, 78 N.Y.2d 112, 115, 571
N.Y.S.2d 902, 575 N.E.2d 388). With respect to the
Amsterdam Video and Stringfellow’s plaintiffs’ vagueness
claims, it should suffice to observe that the Amendments’
definitional provisions are sufficiently specific to provide the
public with clear and reasonable notice of the type of
businesses that are covered. Indeed, the federal courts have
already upheld similar zoning provisions that regulate
commercial facilities devoting a "substantial portion" of their
90a
businesses to adult entertainment (see, e.g., ILQ Investments,
Inc. v City of Rochester, 25 F.3d 1413, cert denied, 513 U.S.
1017, 130 L. Ed. 2d 493, 115 S. Ct. 578 (1994)).
Finally, we are not persuaded by the Stringfellow’s
plaintiff's discrete argument that the ordinance’s distance
requirements are too vague because they do not include a
statement indicating the precise standard for measurement. To
the extent that this aspect of the ordinance’s provisions leave
room for confusion, the problem is procedurally remediable
through administrative application and rule-making. Notably,
there is no indication on the present record that the City’s
enforcement of the distance rules will be arbitrary or uneven.
V. Conclusion
The City’s effort to address the negative secondary effects of
adult establishments is not constitutionally objectionable under
any of the standards set forth by the United States Supreme
Court in City of Renton v Playtime Theatres (supra) or by this
Court in Town of Islip v Caviglia (supra). Accordingly, in
each case the order of the Appellate Division should be
affirmed, with costs.
9la
241 A.D.2d 360”
STRINGFELLOW’S OF NEW YORK, LTD., Appellant,
v.
THE CITY OF NEW YORK, et al., Respondents,
TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT,
CENTER FOR THE COMMUNITY INTEREST, et al.,
Intervenors-Defendants-Respondents.
AMSTERDAM VIDEO INC., et al., Appellants,
v.
THE CITY OF NEW YORK, et al., Respondents,
TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT,
CENTER FOR THE COMMUNITY INTEREST, et al.,
Intervenors-Defendants-Respondents.
RACHEL HICKERSON, et al., Appellants,
v.
THE CITY OF NEW YORK, et al., Respondents,
TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT,
“ The caption in this case is exactly the same as those of the state court
cases previously set forth in this appendix, with two exceptions: at the
time this opinion was rendered, Joseph Miele was named as defendant
Commissioner of Buildings, Department of Buildings of the City of New
York; The Center for the Community Interest’s corporate name was the
American All
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.