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NATCO THEATRES, INC. v. RATNER

January 12, 1979;

NATCO THEATRES, INC., Plaintiff,
v.
Bruce RATNER, as Commissioner of Department of Consumer Affairs of the City of New York, Allen G. Schwartz, as Corporation Counsel for the City of New York and Robert McGuire, as Police Commissioner of the City of New York, Defendants



The opinion of the court was delivered by: GOETTEL

In this action brought under 42 U.S.C. ยง 1983, the plaintiff, Natco Theatres, Inc., is challenging the constitutionality of New York City's licensing scheme for motion picture theatres, *fn1" seeking both declaratory and injunctive relief. Plaintiff, the lessee and operator of the Bryant Theatre in New York's Times Square area, has stated its intention of exhibiting "sexually explicit" films. It contends that enforcement of the licensing law would unconstitutionally infringe its rights under the First Amendment. The defendants, the New York City Commissioner of the Department of Consumer Affairs, Police Commissioner, and Corporation Counsel, have moved to dismiss the complaint.

After argument on an order to show cause, this Court issued a temporary restraining order enjoining enforcement of the relevant provisions of the licensing ordinance. After further briefing, the plaintiff's motion for a preliminary injunction is now ready for decision.

I

 The ordinance challenged in the instant case is the successor to an earlier licensing ordinance declared by the courts to be an unconstitutional prior restraint on First Amendment rights. *fn2" The new ordinance attempts to deal with the problems found in the old law by providing "specific guidelines" for the issuance, renewal, suspension and revocation of movie theatre licenses. *fn3" Under the terms of the present ordinance the Commissioner of the Department of Consumer Affairs may deny, suspend or revoke a license only after notice and a hearing and only upon a finding that at least one of eight enumerated conditions has occurred. *fn4" These conditions include, among others, a failure of the applicant to satisfy the ordinance's disclosure provisions and a prior conviction of the applicant or the business's principals (including all shareholders holding ten percent or more of its stock) for any one of a number of crimes. *fn5"

 The licensing ordinance went into effect in December of 1977. On May 10, 1978, a letter was sent by the Department of Consumer Affairs to theatre operators informing them of the licensing requirements. The letter stated: "A strict program of enforcement is about to begin, and the strongest possible actions may be taken against any enterprises that are operating without appropriate licenses." *fn6" Those found to be in violation of the law are subject to both criminal and civil (including injunctive) sanctions. The plaintiff alleges, and the defendant does not deny, that several criminal summonses have already been served upon various theatres for noncompliance.

 Plaintiff has not applied for, nor does it wish, under the terms of the present ordinance, to apply for a license. Plaintiff now fears that as a result it will become a target for enforcement of the ordinance soon after it reopens its theatre.

 II

 This Court must first decide whether plaintiff has the requisite standing and presents an actual "case or controversy" as mandated by the Constitution. As noted in Abele v. Markle, 452 F.2d 1121, 1124 (2d Cir. 1971), "(t)he existence of a case or controversy depends upon whether the persons seeking relief have alleged a sufficient personal stake in the outcome to assure that the court will be called upon to resolve real issues between genuine adversaries rather than merely to give advisory opinions with respect to abstract or theoretical questions." See Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).

 The plaintiff has not, as yet, applied for, and thus has never been denied, a license, nor has it ever been subject to any of the sanctions of the ordinance. This, however, does not deprive it of standing. It has been held consistently that such failure to apply for a license, even if that license could have been obtained, does not preclude a party from challenging the constitutionality of a licensing ordinance on its face. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S. Ct. 935, 22 L. Ed. 2d 162 (1969); Freedman v. Maryland, 380 U.S. 51, 56, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965); 414 Theatre Corp. v. Murphy, 360 F. Supp. 34 (S.D.N.Y.1973), Aff'd, 499 F.2d 1155 (2d Cir. 1974). As was stated by the Supreme Court in Shuttlesworth, supra at 151, 89 S. Ct. 935, quoting from Jones v. Opelika, 316 U.S. 584, 602, 62 S. Ct. 1231, 1242, 86 L. Ed. 1691 (Stone, C. J., dissenting), Adopted per curiam on rehearing 319 U.S. 103, 104, 63 S. Ct. 890, 87 L. Ed. 1290: "The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yet yielded to its demands."

 Similarly, the fact that plaintiff has not as yet been subject to any of the sanctions of the ordinance does not deprive it of standing in light of the circumstances in this case. The plaintiff has received an official letter from the Department of Consumer Affairs threatening enforcement against any theatre operating without a license. Other similarly situated theatres have apparently already been served with criminal summonses. Unlike in St. Martin's Press, Inc. v. Carey, 605 F.2d 41 (2d Cir. Jan. 10, 1979), the instant ordinance clearly applies to the plaintiff, and, due to the nature of the movies plaintiff plans to offer, it is a likely target for enforcement. Under such circumstances, this Court does not feel it "necessary that (plaintiff) first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 1216, 39 L. Ed. 2d 505 (1974). See Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976); *fn7" Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972) (standing based upon threat of enforcement made to federal plaintiff); Boe v. Colello, 438 F. Supp. 145, 153 (S.D.N.Y.1977). Plaintiff has presented this Court with a claim which "cannot be characterized as "imaginary or speculative.' " Steffel v. Thompson, supra at 459, 94 S. Ct. at 1215, quoting Younger v. Harris, 401 U.S. 37, 42, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).

 For the foregoing reasons the Court finds that there exists an actual "case or controversy" sufficient to make this case justiciable.

 The next question to consider is whether in light of the doctrine of Younger v. Harris, supra, this Court should decline to exercise jurisdiction. At this time there is no state proceeding pending which plaintiff seeks to have enjoined. Nor will this case disturb the results of a prior state action. It has been held that where a real threat of prosecution exists a federal court may grant injunctive relief without regard to Younger principles. Wooley v. Maynard, 430 U.S. 705, 709-710, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977); Doran v. Salem Inn, Inc., 422 U.S. 922, 930-931, 95 S. Ct. 2561, 45 L. Ed. 2d 648 (1975). This Court may take jurisdiction over this action.

 Nor must the Court abstain from the exercise of its jurisdiction under the Pullman abstention doctrine. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). Pullman abstention is appropriate when the challenged state ordinance is susceptible to a limiting construction by a state court so as to avoid the constitutional infirmity. See, Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967); Pharmaceutical Society of New York v. Lefkowitz, 586 F.2d 953 (2d Cir. 1978). However, "where there is no ambiguity in the state statute, the federal court should not abstain but should proceed to decide the federal constitutional claim." Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S. Ct. 507, 511, 27 L. Ed. 2d 515 (1971). Thus the state courts do not have to be given the first opportunity in all instances to review state statutes. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976). Abstention has been held to be particularly inappropriate when an ordinance is challenged as facially invalid under the First Amendment. Citizens For a Better Environment, Inc. v. Nassau County, 488 F.2d 1353, 1362 (2d Cir. 1973). The New York City licensing ...


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