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BLACK JACK DISTRIBS. v. BEAME

June 22, 1977.

BLACK JACK DISTRIBUTORS, INC., Queen Paper Back Corp., and G & M Bookstore, Inc., Plaintiffs,
v.
Abraham BEAME, Individually and as Mayor of the City of New York, Sidney Baumgarten, Individually and as Assistant to the Mayor of the City of New York, Michael Codd, Individually and as Police Commissioner of the City of New York, Jeremiah T. Walsh, Individually and as Commissioner of Buildings of the City of New York, Cornelius F. Dennis, Individually and as Borough Superintendent of the Department of Buildings of the City of New York, John T. O'Hagan, Individually and as Fire Commissioner of the City of New York, Donald Gray, and W. X. Fincke, Defendants.



The opinion of the court was delivered by: CANNELLA

OPINION AND ORDER CANNELLA, District Judge.

Plaintiffs, three so-called "adult" bookstores *fn1" engaged in the sale of sexually explicit books, magazines and 8 millimeter films (hereinafter "sexually explicit materials") *fn2" to consenting adults, bring this action pursuant to 42 U.S.C. ┬ž 1983 to escape the effects of New York City's recent campaign to "clean up" the Midtown area of New York County ("the Midtown area"). The case is presently before the Court on plaintiffs' motion for a preliminary injunction. The injunction is hereby granted in accordance with the Opinion below.

FACTS

 On January 17, 1976, an agency called the Midtown Enforcement Project ("Project") was created. *fn3" The Project is funded by a federal grant from the Law Enforcement Assistance Administration and operates as a coordinating agency under the auspices of the Office of the Mayor of the City of New York. It has as its purpose the investigation, identification and prosecution of illicit activities endemic to the Midtown area. Certain activities of the Project, along with those of the New York City Police Department and the Manhattan District Attorney's Office, form the subject matter of this lawsuit.

 On the staff of the Midtown Enforcement Project is a health inspector, a building inspector and a fire inspector. These three, together with the two Police Officers who supervise and coordinate the inspectors' work, form the Project's inspectional task force. It is alleged that Building, Fire and Health Code *fn4" enforcement has been focused on sexually oriented businesses through routine periodic inspections conducted by the Project. John Russell, the supervising attorney of the Project, testified that such inspections are made in Midtown Manhattan without regard to the type of business occupying the premises. Ninety percent of the Project's inspections, however, involve buildings housing sexually oriented enterprises. *fn5"

 It is also alleged that the inspectional team of the Midtown Enforcement Project has engaged in the practice of obtaining vacate orders based upon information or allegations known to be false. A few specific instances are presented as evidence of this practice.

 On July 7, 1976 the Crossroads Bookstore was closed pursuant to an ex parte order obtained by the Project. It was soon discovered that the order was based upon erroneous information provided by defendant Jeremiah Walsh, Commissioner of Buildings of the City of New York. After a check of the Building Department's files, the error was conceded and the complaint withdrawn. *fn6" Nonetheless, the premises remained closed for approximately one week.

 On March 17, 1977, plaintiff Black Jack was served with a vacate order at its 42nd Street premises. The order was primarily based upon the store's failure to have a second means of ingress and egress. *fn7" Uncontested evidence showed that, since at least 1968, there had been a second means of ingress and egress and that one was there the day the vacate order was served and enforced. Indeed, when Justice Oliver Sutton of the New York Supreme Court inspected the premises a few days later he immediately allowed the store to reopen, finding no such violation. Shortly thereafter, the Fire Department dismissed the vacate order. However, the premises had been forced to remain closed for five days.

 On March 25, 1977, a sexually oriented enterprise called Show-World was forced to close due to a sprinkler violation in its building. Of the twenty-one buildings with such sprinkler violations in New York County, the Show-World premises was the only one served with a vacate order. Show-World was permitted to reopen when Judge Constance Baker Motley of this Court entered an order temporarily restraining enforcement of the vacate order. Show-World's motion for a preliminary injunction is presently under advisement.

 Although the Midtown Enforcement Project engages in no penal law prosecution of its own, it has liason with the Police Department through the Chief of the Public Morals Division and communicates with the Manhattan District Attorney's Office. John Russell testified that these channels serve only as conduits for the exchange of information. *fn8" Plaintiffs, however, maintain that the Project, the Police Department and the District Attorney's Office are presently engaged in a joint effort to "clamp down" on sexually oriented businesses in Manhattan in general and, specifically, to force plaintiffs out of business.

 This latter allegation is supported by the following events. On April 22, 1977, Manhattan District Attorney Robert Morgenthau and members of his staff met in his office with representatives of the Police Department's Public Morals Division to discuss the "obscenity problem." At the meeting it was decided that enforcement efforts would be concentrated on the plaintiff bookstores believed to be owned and operated by Alfred Scotti. *fn9" It was also agreed, either at this meeting or just prior thereto, that "desk appearance tickets" would no longer be issued to persons arrested in "adult" bookstores on obscenity charges. *fn10"

 The "desk appearance ticket" procedure enables a qualifying defendant (that is, one who can establish his pedigree) to leave the stationhouse after the initial processing merely by accepting a written ticket requiring his appearance in court at some future time. Without the "desk appearance ticket," the prisoner is forced to remain in custody until he can be arraigned, usually on the day following his arrest. *fn11"

 Shortly after the April 22 meeting, almost daily arrests and seizures were effected at plaintiffs' premises; between May 2 and May 19 *fn12" there were between twenty and thirty arrests for the promotion and sale of obscene material. *fn13" During these arrests, patrons were removed and the premises closed, but the proprietors were not prevented from reopening the shops upon completion of the arrests and seizures. Witnesses for plaintiffs testified that the arrests were usually effected during the stores' busiest periods and that the stores were forced to remain closed for between one and two hours. The materials "deemed obscene" and seized from plaintiffs' premises are characteristic of material sold in all "adult" bookstores in the Midtown area; yet, during this time period, no other seizures or arrests under the New York obscenity laws were made in the Midtown area.

 DISCUSSION

 Based on these events plaintiffs argue that defendants are engaged in bad faith enforcement of the obscenity laws, done solely to harass plaintiffs and drive them out of business. Such a campaign, they assert, interferes with the free exercise of First Amendment rights. *fn14"

 Before reaching the merits, however, the Court must decide whether plaintiffs having standing to bring this action, whether the lawsuit presents a justiciable case or controversy, and whether the Court has equitable jurisdiction to issue an injunction such as the one sought by ...


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