The opinion of the court was delivered by: GRIESA
The plaintiffs in these two actions are operators of sexually oriented "peep shows" in the City of New York. They seek to enjoin the City of New York and officials thereof
from enforcing against peep shows the Administrative Code provisions requiring the licensing of places of public amusement (Art. I, Title B of Chapter 32).
These actions are brought under Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, and under the Federal Constitution. Plaintiffs claim that enforcement of the licensing provisions against peep show operators would result in an unconstitutional prior infringement of free speech. Among the reasons assigned for the invalidity of the licensing scheme are the alleged vagueness of the licensing standards and the onerous nature of the license applications which the peep show operators are required to submit.
The plaintiffs in both cases have moved for preliminary injunctions to stay the enforcement of preliminary injunctions granted by the New York Supreme Court, which prohibit the operation of plaintiffs' peep shows without licenses. Plaintiffs' motions also seek to bar the continued prosecution of certain criminal actions against plaintiffs and their employees now pending in the State courts, and also to bar generally all enforcement of the licensing provisions against peep shows.
Plaintiffs' motions for preliminary injunction in this Court are denied. The constitutional questions raised by plaintiffs, and underlying questions of local law regarding the interpretation of the New York City Administrative Code, are now before the State courts in the pending civil and criminal proceedings. Plaintiffs have shown no justification for having a federal district court interfere with the State's judicial processes. There is no showing that such processes are inadequate to protect plaintiffs' constitutional rights. Indeed, as the facts described below demonstrate, plaintiffs have deliberately failed to take advantage of available appellate remedies in the State courts, and have sought to create the appearance of need for federal court intervention where no such need actually exists.
This plaintiff's establishment is at 1487 Broadway in the Times Square area. It consists of a book store in front, and a room in back containing 15 peep show machines. According to the affidavit of Martin J. Hodas, the corporation's principal stockholder, these machines display "sexually oriented films which portray nudity and genitalia but which do not display explicit sexual congress." The attorney for 1487 Broadway states that the machines "have expressions of love-making in various forms" (Minutes of Hearing October 13, 1972, p. 29). The windows fronting on Broadway are blacked out, and contain the wording, "Bookstore and Peep Show Machines." The complaint in the action alleges (par. 2), that the store "now has a large and loyal following among adult members of the community who desire to be educated and entertained by the expression disseminated therein."
Image Book Distribution, Inc.
Image Book's establishment is at 127 Third Avenue, New York City, between 14th and 15th Streets. There is a book store in front, and a room at the rear containing 12 peep show machines. The attorney for Image Book expressly stated that he declined to inform the Court as to the nature of the materials exhibited "deeming such material protected by the First Amendment regardless of content" (Affidavit of Jerald Rosenthal October 17, 1972). On the front window there is a sign reading "Guys and Gals Together, Only 25 Cents a Show." The doorway contains the words, "Adult Books and Magazines, You Must be Over 21."
In 1967 Mr. Hodas wrote the New York City Department of Licenses to inquire whether a license is required for "a coin-operated machine that shows movies." By letter dated June 9, 1967 the Department replied that a license for such machines would not be required.
Plaintiffs allege that in early 1972 the City of New York reversed this position and asserted that peep shows should be licensed under the Administrative Code as places of public amusement. Various legal proceedings by the City followed.
The Administrative Code provides that violation of the licensing provisions is punishable by a fine up to $500 and imprisonment up to six months (§ B32-21.0). On January 26, 1972 a summons was issued to Melvin Rovinsky of 1487 Amusement Corp. returnable in the Criminal Court of the City of New York on February 29, 1972. This proceeding was adjourned several times in view of the fact that a civil action was being brought in the Supreme Court, New York County, in which the legal issues as to the interpretation and constitutionality of the Administrative Code licensing provisions would be tested. The current adjourned date of the above criminal proceeding against Rovinsky is November 28, 1972. Another summons was issued to Rovinsky on March 23, 1972, but Rovinsky has failed to appear in response thereto. A summons was issued to one Ioan Iovan of 1487 Amusement Corp. on September 6, 1972. After some delay, Iovan appeared, and the case has been set for trial December 19, 1972. 1487 Amusement Corp. also claims that a summons was issued to Willie Gardner, one of its employees, on October 16, 1972.
As to Image Book, criminal summonses have been issued to Geoffrey Kline, an employee of Image Book, and to Jack Wolf, the president of Image Book. Both Kline and Wolf are plaintiffs in the present federal court action, together with Image Book. The summonses to Kline and Wolf were issued January 27, 1972 and March 23, 1972 respectively. Both proceedings are adjourned to November 28, 1972.
The Administrative Code also provides for an injunctive remedy for enforcement of the licensing provisions (§ B32-7.0). On March 29, 1972 the City commenced a civil action in Supreme Court, New York County (Index No. 40775/72) against Image Book Distribution, Inc., Geoffrey Kline and Jack Wolf. On April 26, 1972 the City obtained an order to show cause on a motion for a preliminary injunction.
On April 12, 1972 the City commenced a civil action in Supreme Court, New York County (Index No. 40807/72) against 1487 Amusement Corp., Melvin Rovinsky and York Amusement Co., Inc. On May 1, 1972 the City obtained an order to show cause on a motion for preliminary injunction in this action.
These motions were heard by Justice Myles J. Lane, who rendered decisions on June 15, 1972 holding that the Administrative Code licensing provisions apply to the peep shows, and further holding that such provisions do not violate constitutional rights. On June 30, 1972 Justice Lane signed preliminary injunctions based on the above decisions, ordering 1487 Amusement Corp. and Image Book Distribution, Inc. to desist from operating their peep shows unless they obtained a license within 30 days following service upon them of the preliminary injunction.
The injunction was served on Image Book on July 24, 1972 and on 1487 Amusement Corp. on July 26, 1972.
Image Book asserts that it ceased operating its peep shows shortly after Justice Lane's order of June 30th. 1487 Amusement Corp. asserts that ...