UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: January 26, 1973.
CANAL THEATRES, INC., APPELLANT,
PATRICK MURPHY, INDIVIDUALLY AND AS POLICE COMMISSIONER OF THE CITY OF NEW YORK AND BESS MYERSON, INDIVIDUALLY AND AS COMMISSIONER OF THE DEPARTMENT OF CONSUMER AFFAIRS, APPELLEES
Friendly, Chief Judge, and Waterman and Hays, Circuit Judges.
HAYS, Circuit Judge:
Canal Theatres, Inc., the lessee and operator of a New York City theatre, showing "adult sex movies," appeals from an order of the United States District Court for the Southern District of New York, Ryan, J., denying its motion for an injunction against the enforcement of certain provisions*fn1 of the Administrative Code of the City of New York requiring the licensing of motion picture theatres within the City. We affirm the order of the District Court.
In March of 1972, appellant Canal Theatres, Inc. applied for a renewal of its theatre license which was due to expire on June 30, 1972. Appellant made application to the New York City Department of Consumer Affairs (of which appellee Myerson is Commissioner) pursuant to Section B32-25.0 of the Administrative Code of the City of New York. The Department did not issue the requested renewal license claiming that the delay was caused by the appellant's failure to submit certain material which the Department had requested. The information desired by the Department related to the financial condition of the appellant which the Department claimed was necessary because of a change in the stockholders and officers of the appellant corporation since the issuance of its original license. Appellant contends that the reason for the delay in granting a renewal license was the fact that the theatre involved exhibits sexually-oriented "adult" motion pictures.
During the one and one-half years that the appellant corporation has operated the theatre involved in this case, a number of criminal prosecutions have been commenced against it for the exhibition of allegedly obscene films. Appellant states that all of those actions have been disposed of without trial as a result of a representation made to the Judge of the Criminal Court of the City of New York by one of appellee Myerson's commissioners that guilty pleas by the corporation would not affect the licenses held by the appellant.
Prior to the commencement of this action, criminal proceedings were initiated against the appellant for operating a theatre without a license in violation of Article 2 of Title B of Chapter 32 of the Administrative Code of the City of New York.*fn2 Appellant seeks a declaratory judgment that the Code provisions requiring licensing of motion picture theatres are unconstitutional on their face and as applied to the appellant in that they abridge First Amendment rights. It also seeks an injunction against Commissioner of Consumer Affairs Myerson and Police Commissioner Murphy to enjoin them from enforcing the regulation "or in any way punishing the failure to comply with said ordinance." We find that such action would interfere with legitimate state judicial and administrative proceedings and we therefore affirm the order of the district court.
Under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), federal courts must abstain when state criminal proceedings are pending. Appellant may raise its constitutional objections to the provisions at issue herein as a defense to the criminal prosecution in the state courts. If it is unsuccessful there it can appeal through the New York State courts to the United States Supreme Court.
The Supreme Court in the Younger case noted that absent special circumstances the federal courts should abstain from suits such as these when not to do so would constitute interference with state criminal proceedings. The special circumstances under which federal courts may act although state proceedings are pending are not present in the instant case. Those circumstances involve cases where irreparable injury is "both great and immediate," 401 U.S. at 46, 91 S. Ct. 746 (quoting Fenner v. Boykin, 271 U.S. 240, 242, 46 S. Ct. 492, 70 L. Ed. 927 (1926)), where the state law is "flagrantly and patently violative of express constitutional prohibitions," 401 U.S. at 53, 91 S. Ct. at 755 (quoting Watson v. Buck, 313 U.S. 387, 402, 61 S. Ct. 962, 85 L. Ed. 1416 (1941)), or where there is a showing of "bad faith, harassment, or . . . other unusal circumstance[s] that would call for equitable relief," 401 U.S. at 54, 91 S. Ct. at 755.
Not only is the corporation not suffering any immediate irreparable injury, but the theatre apparently continues to operate -- showing whatever type of pictures it chooses. Moreover there is no evidence in the record to indicate that the prosecutions involved herein were "undertaken . . . in bad faith without hope of obtaining a valid conviction . . .", Perez v. Ledesma, 401 U.S. 82, 85, 91 S. Ct. 674, 677, 27 L. Ed. 2d 701 (1971) nor has there been any showing that the appellees were selectively enforcing the regulation at issue. Finally, there is no reason to believe that the City is deliberately "harassing" the appellant in such a way as to take the case out of the area governed by Younger v. Harris.