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January 23, 1970

JODBOR CINEMA, LTD., a Body Corporate of the State of New York, Doing business as Fine Art Theater, 663 Main Street, Buffalo, New York, Plaintiff,
Frank A. SEDITA, in his capacity as Mayor of the City of Buffalo, Buffalo, New York and Anthony Manguso, in his capacity as City Corporation Counsel for the City of Buffalo, Buffalo, New York and Frank M. Felicetta, in his capacity as Commissioner of Police, City of Buffalo, Buffalo, New York and Frank V. Spano, in his capacity as Detective Sergeant of the Buffalo City Police and in charge of the Salacious Literature Squad of the Buffalo City Police, Buffalo, New York and Michael F. Dillon, in his capacity as District Attorney of the County of Erie, Buffalo, New York, Defendants, Jointly and Severally

Curtin, District Judge.

The opinion of the court was delivered by: CURTIN

CURTIN, District Judge.

Plaintiff, a New York corporation doing business in Buffalo, New York as the Fine Art Theater, commenced this action against the defendants on September 15, 1969 under the Civil Rights Act (42 U.S.C. § 1983; 28 U.S.C. § 1343) seeking, among other things, a judgment (28 U.S.C. § 2201) declaring Buffalo Charter Provisions, Sections 101 and 102, *fn1" Buffalo Ordinances, Sections 14 and 21, and New York State General City Law, McKinney's Consol. Laws, c. 21, Section 20, Subdivision 13 *fn2" unconstitutional as written and/or applied. Also sought is a preliminary and permanent injunction against certain criminal proceedings now pending in Buffalo City Court and Erie County Court, and similar proceedings to be brought in the future. Plaintiff further seeks the return of various materials seized from the Fine Art Theater and $250,000 in damages against the defendants, jointly and severally, for violation of its constitutional rights.

 Shortly after the commencement of this lawsuit, the plaintiff sought a temporary order to restrain the Buffalo Police Department, the Corporation Counsel of Buffalo and the Erie County District Attorney from making future searches of the plaintiff's premises, future arrests of persons associated with the plaintiff, and from lodging future charges against the corporation. Plaintiff also sought an order restraining certain pending criminal proceedings based upon violations of both the Buffalo Ordinances and the New York Penal Law.

 In an attempt to maintain the status quo at the time of the commencement of this case, the parties agreed to a self-imposed restraint pending the determination of this formal motion for a preliminary injunction. Until the time of this determination, the defendants agreed to adjourn all pending criminal prosecutions in Buffalo City Court and Erie County Court. Officers of the city were not to be prevented from serving daily summonses upon the plaintiff, charging a violation of the ordinance prohibiting the conducting of business at this premise without a license.

 Presently, the only plaintiff in this action is the corporation, Jodbor Cinema, Ltd., doing business as the Fine Art Theater. Gerald Attenson and John O'Donnell, both employees of the plaintiff and the individuals charged with violating Section 235.05 *fn3" of the New York Penal Law, McKinney's Consol. Laws, c. 40, have not been joined as party plaintiffs. The plaintiff has not requested this court to convene a three-judge court for the purpose of granting the preliminary injunction sought. Nor has the plaintiff placed the constitutionality of New York Penal Law Section 235.05 in issue.

 On the motion for the preliminary injunction, the parties have submitted to the court extensive briefs of law and various exhibits, one of which is a transcript of the license revocation proceeding held before the Mayor of the City of Buffalo. No testimony was offered by either side during the hearing on this motion for preliminary injunction.

 From the plaintiff's complaint, the affidavits opposing the granting of injunctive relief, and all the exhibits introduced at the time of the motion for the preliminary injunction, the court makes the following findings of fact with respect to this motion.

 Upon application by the plaintiff, the Director of Licenses of the City of Buffalo, on May 27, 1969, issued Theater License No. 227, Class 6, to the Fine Art Theater in Buffalo, New York. It is the court's understanding that the license application procedure is rather uncomplicated, consisting primarily of prior approval by a fire inspector and a building inspector. Parenthetically, Buffalo does not have a Board of Censors for motion picture films or a special licensing procedure for theaters.

 On July 9, 1969, the defendant, Frank Spano, Detective Sergeant in charge of the Salacious Literature Squad of the Buffalo Police, and Buffalo City Court Judge Theodore S. Kasler went to the Fine Art Theater and, upon payment of a $3.00 admission charge, viewed the film, "Olga's Girls."

 On July 11, 1969, Spano swore to an information charging Gerald Attenson, an employee of the plaintiff, with obscenity under Section 235.05 of the Penal Law for exhibiting the film, "Olga's Girls." A warrant of arrest was issued on the same day. On Saturday, July 12, 1969, Attenson was arrested and the film, "Olga's Girls," was seized incident to that arrest. This criminal charge of obscenity is still pending in Buffalo City Court. It should be noted, however, that Attenson, through his attorneys, has applied for removal of this case to Erie County Court.

 On July 31, 1969, Spano and Judge Kasler went again to the Fine Art Theater and viewed a movie called "Rio Nudo." Upon an information sworn to that day by Spano, a warrant was issued for the arrest of Attenson, John O'Donnell, and a "John Doe," described as a Negro male projectionist, charging all of them with a violation of Section 235.05 for exhibiting "Rio Nudo." On that same day, Spano, accompanied by other members of the Buffalo Police Department, went to the Fine Art Theater and arrested Attenson. Then, Spano went up to the projection room, told the projectionist that he had a warrant of arrest, and ordered the surrender of the film, "Rio Nudo." The projectionist gave him two reels of film in containers. Then, pursuant to Section 410.00 of the New York Penal Law, *fn4" Spano directed other members of the Buffalo Police Department to remove two projection arc lamps, two sets of exhaust piping, two top magazines and two bottom magazines from the projection equipment in the theater. Spano gave Attenson a receipt for the projection equipment and "two reels of film entitled 'Rio Nudo.'"

 O'Donnell subsequently surrendered himself on the warrant of arrest. The charges against both Attenson and O'Donnell are presently pending in Buffalo City Court. The present state of the record before the court fails to clearly indicate whether or not the defendants have applied to remove these second charges to Erie County Court. The warrant against "John Doe" was never executed.

 On August 1, 1969, the plaintiff was served with a notice of a hearing to be held on August 6, 1969 before the defendant, Frank A. Sedita, Mayor of the City of Buffalo, to determine whether or not the plaintiff's license should be revoked for showing obscene films. Beginning on August 6, 1969, a hearing was held before the Mayor, at which Mr. Vincent Doyle and Mr. Joseph Bermingham represented the plaintiff. The Corporation Counsel for the City of Buffalo appeared in support of revoking the plaintiff's license.

 During the course of that hearing, eleven witnesses testified, including Spano, Judge Kasler, the Director and Assistant Director of the Department of Licenses for the City of Buffalo, the Clerk of the Buffalo City Court, a regional advertising manager associated with Twentieth Century Fox, and five members of the Buffalo Police Department. During the course of this hearing and at the suggestion of counsel for the plaintiff, the Mayor viewed the motion picture, "Olga's Girls." At this viewing, a showing of "Rio Nudo" had been scheduled. However, it was then discovered that the film delivered to Officer Spano by the projectionist at the time of the July 31 arrest was not the film, "Rio Nudo," but a cartoon. The plaintiff did not offer an explanation about this mixup in films to the court. During the hearing before the Mayor, the film, "Rio Nudo," was not shown.

 Counsel for the plaintiff was afforded an opportunity to fully cross-examine the witnesses produced by the City. No witnesses were offered by plaintiff's representatives. Although the Mayor repeatedly insisted that the plaintiff had a full opportunity to produce witnesses in its own behalf, the Mayor declined to sign subpoenas for two witnesses requested by plaintiff's counsel. These proposed witnesses were owners of theater establishments in the Buffalo area who allegedly had shown the picture, "Olga's Girls," previously without criminal charges being lodged or licenses being revoked.

 On September 5, 1969, Mayor Sedita issued his detailed decision concluding that "the credible evidence produced at the hearing has established a good and substantial cause justifying the revocation of the theater license of Jodbor Limited, Inc. in that the motion picture or pictures exhibited or promoted are obscene." Effective immediately that day, the Mayor revoked the theater license issued to the Fine Art Theater.

 In issuing his decision, the Mayor stated that he found the film obscene under the test of obscenity announced in Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), and A Book Named "John Cleland's" Memoirs of a Woman of Pleasure v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966). Further, the Mayor found facts indicating that the Fine Art Theater was also guilty of "pandering," condemned in Mishkin v. New York, 383 U.S. 502, 86 S. Ct. 958, 16 L. Ed. 2d 56 (1966), and Ginzburg v. United States, 383 U.S. 463, 86 S. Ct. 942, 16 L. Ed. 2d 31 (1966).

 The Mayor's decision was made after affording both sides ample time to submit written legal arguments in support of their various positions. In addition to actually viewing "Olga's Girls," the Mayor made his determination of obscenity based on the testimony of Spano and City Judge Kasler, both of whom described what they saw.

 The decision of the Mayor was served upon the plaintiff on September 8, 1969.

 It is the court's understanding, from the representations of counsel for both sides, that the Fine Art Theater has continued to be open for business throughout the months of July, August and September with perhaps brief interruptions on July 9 and July 31, when the two films in issue were seized. The theater has remained open for business on the advice of counsel since September 8, the date the revocation order was delivered to the plaintiff.

 On September 9, Attenson was twice arrested for violation of the Buffalo Ordinances, Section 14, which prohibits conducting business without a license. Several summonses for violating the same ordinance have been served on the plaintiff in the interval between September 9 and the date of the commencement of this lawsuit. Finally, at an early hearing in this court, the Corporation Counsel stated that it was the City's intention to continue to serve such summonses on a day-by-day basis. All of these ordinance violations, the court presumes, are now pending in the City Court of Buffalo.

 Except, perhaps, for the brief business interruptions on July 9 and July 31 and the lodging of criminal charges against the plaintiff and its employees, there is no proof that the plaintiff suffered any harm, monetary or otherwise, from July 9 to the present. The ...

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