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WIGGINESS INC. v. FRUCHTMAN

December 28, 1979

WIGGINESS INC., SPARTACUS SPA, INC., LEA FACILITIES, INC., AL SIGELOW d/b/a GREENWOOD ENTERPRISES, NEW WAVE SOCIAL CLUB INC., and PRIMERO CONSTRUCTION CORP., Plaintiffs, against IRWIN FRUCHTMAN, individually and as COMMISSIONER OF THE DEPARTMENT OF BUILDINGS OF THE CITY OF NEW YORK, ALLEN SCHWARTZ, individually and as CORPORATION COUNSEL OF THE CITY OF NEW YORK, ROBERT McGUIRE, individually and as POLICE COMMISSIONER OF THE CITY OF NEW YOURK, and EDWARD TRICOMI, Defendants.


The opinion of the court was delivered by: WARD

In this action, plaintiffs seek to enjoin certain officials of the City of New York from enforcing the city's zoning ordinance regulating adult physical culture establishments. They also ask this Court to declare the ordinance invalid as violating the United States Constitution, title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000a Et seq., and the Human Rights Law of the State of New York, N.Y. Exec. Law §§ 290-301. Jurisdiction is based on 28 U.S.C. §§ 1331 & 1343(3) and the doctrine of pendent jurisdiction. *fn1"

Plaintiffs now move pursuant to Rule 65, Fed.R.Civ.P., for a preliminary injunction enjoining enforcement of the adult physical culture establishment ("APCE") ordinance pending the outcome of this litigation. Defendants, opposing plaintiffs' motion, cross-move under Rule 12(b)(6), Fed.R.Civ.P., to dismiss plaintiffs' action for failure to state a claim upon which relief can be granted. For the reasons hereinafter stated, plaintiffs' motion is denied and defendants' cross-motion is granted in part and denied in part.

Wigginess Inc. ("Wigginess"), and Spartacus Spa, Inc. ("Spartacus"), two New York corporations, operate "leisure spas" on East Thirty-sixth and East Fifty-fifth Streets, respectively, in New York City's Borough of Manhattan. These two spas are staffed by "hostesses" and "attendants," nearly all of whom are female, and cater solely to a male clientele. The Wigginess and Spartacus spas offer sauna and bath facilities.

 Lea Facilities, Inc. ("Lea"), a not-for-profit corporation organized under New York law, operates a "health club" on East Twenty-second Street in Manhattan. Catering primarily to males, Lea employs women exclusively as the hostesses and bath attendants in its health club. The only male employees at the Lea club are management personnel. This plaintiff's club has a gym, a swimming pool, sauna facilities, locker rooms and showers. Al Sigelow, the president of Lea, also operates a "leisure spa" on Manhattan's West Forty-sixth Street. This spa is equipped with showers and baths and, like Lea, employs only women as hostesses and bath attendants.

 New Wave Social Club, Inc. ("New Wave"), like Lea a not-for-profit corporation organized under New York law, is a "swingers club" located on West Fifty-fifth Street in Manhattan. New Wave claims to have only two employees, a receptionist and a locker room attendant, and describes itself as a private club where "members exercise a minimum of sexual self-restraint in pursuit of a common desire to enjoy themselves and each others (sic) company without repressions or inhibitions." *fn2"

 Primero Construction Corporation ("Primero") is a New York corporation which holds a lease on premises at West Forty-fourth Street in Manhattan. The city buildings department has refused to issue Primero a building permit to construct what Primero claims will be residential apartments on the third, fourth and fifth floors of the premises. The buildings department claims that there are a number of reasons why this permit was denied but admits that one reason is the expectation on city officials' part that the premises would not be used for residential apartments but for an APCE. Apparently the first two floors of the building currently house a swingers club known as Xtazy, which the city believes is run by Fred Fredericks, the president of Primero. *fn3"

 New Wave has been issued two orders by the buildings department alleging violations of the APCE ordinance. The other five plaintiffs, with the above-noted exception of Primero, have as yet received no notification from city officials that the city considers them in violation of the ordinance.

 The named defendants are the New York City officials charged with enforcing the APCE zoning ordinance. Defendant Edward Tricomi is a city buildings inspector assigned to the buildings department's midtown Manhattan enforcement unit.

 On November 16, 1978, the New York City Board of Estimate enacted into law the City Planning Commission's proposal to amend the city's Zoning Resolution to prohibit future APCEs in the entire City of New York and to require the amortization of all existing APCEs within one year. Section 12-10 of the amended Zoning Resolution defines APCE as follows:

 
An "adult physical culture establishment" is any establishment, club or business by whatever name designated which offers or advertises or is equipped or arranged so as to provide as part of its services massages, body rubs, alcohol rubs, baths or other similar treatment by members of the opposite sex. The following uses shall not be included within the definition of an adult physical culture establishment:
 
(1) establishments which routinely provide such services by a licensed physician, a licensed chiropractor, a licensed osteopath, a licensed practical nurse or a registered professional nurse;
 
(2) electrolysis treatment by a licensed operator of electrolysis equipment;
 
(3) continuing instruction in martial or performing arts or in organized athletic activities;
 
(4) hospitals, nursing homes, medical clinics or medical offices; and
 
(5) barbershops or beauty parlors which offer massage to the scalp, the face, the neck or shoulders only.

 Section 52-76 of the Resolution requires that:

 
In all districts (i. e., the entire city) any adult physical culture establishment, unless subject to an earlier termination requirement contained in this Resolution, shall terminate not later than one year after the effective date of this provision and thereafter the space formerly occupied by such use shall be used only for a conforming use.

 Plaintiffs claim the APCE definition is vague and overbroad. They contend that in prohibiting APCEs the zoning ordinance effectively "proscribes crossexual (sic) touching in the entire City of New York" and thus violates constitutionally protected rights of privacy and association. Plaintiffs also argue that the ordinance violates the due process clause by interfering with the allegedly fundamental right of plaintiffs and their employees to work in the common occupations of the community. Maintaining that the requirement that no establishment offer massages or similar treatment to members of the opposite sex would force them to hire and discharge employees on the basis of sex, plaintiffs Wigginess, Spartacus, Lea and Sigelow claim the ordinance violates the equal protection clause and stands in contravention of federal statutory provisions prohibiting sex-based employment discrimination. The Court finds that each of the above contentions is without merit.

 In addition, plaintiffs argue that the one-year amortization period prescribed by the ordinance for termination of all nonconforming APCE uses is so unreasonably short that it constitutes a taking of private property without just compensation in violation of the fifth amendment. Although the Court entertains serious doubt that plaintiffs will be able to succeed on the merits of this argument, the question whether it is reasonable to allow a maximum of only one year to APCEs to continue their nonconforming use involves issues of fact and should not be decided on a motion to dismiss. Provided plaintiffs Wigginess, Spartacus, Lea, Sigelow and New Wave establish the standing to challenge the amortization period, *fn4" ...


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