The opinion of the court was delivered by: MCLAUGHLIN
This is an action challenging the constitutionality of the City of New York's zoning and licensing laws regulating coin operated video game machines. Plaintiff seeks declaratory and injunctive relief, pursuant to 28 U.S.C. § 2201 and Fed.R.Civ.P. 65.
Plaintiff seeks to open a restaurant in a "C-2"
commercial zone in Queens. The restaurant has a Certificate of Occupancy for Use Group 6 which permits it to operate an eating and drinking establishment with incidental musical entertainment. In lieu of musical entertainment, however, plaintiff wants to install forty dining tables containing coin operated video game machines on which its customers can entertain themselves by shooting down space invaders and asteroids while dining on hamburgers and soft drinks.
Under New York City licensing regulations, an establishment containing five or more video games is denominated an amusement arcade for which an arcade license is required.
Operating without a license would subject plaintiff to civil and criminal penalties.
Amusement arcades may be licensed, either as a matter of right or by permission. Licenses as of right are restricted to Coney Island, the Rockaways and a few remote manufacturing zones. Although Section 773-4.0(b) of the City's Administrative Code grants the Commissioner of Consumer Affairs authority to issue licenses for amusement arcades in other zones, including the one in which plaintiff's restaurant is located, there are no specific criteria governing eligibility. Indeed it appears that no license applications are even accepted unless the business is located within one of the "as of right" zones and has the applicable Certificate of Occupancy. The New York City Department of Buildings, moreover, has added another barrier: it will not issue a Certificate of Occupancy for establishments with more than four video games in Use Group 6 establishments, such as plaintiff's.
Plaintiff brings this action because the City's regulatory scheme effectively precludes it from obtaining a license to operate its restaurant in accord with its plan. In fact, the Queens Borough Superintendent has written in bold letters across a letter from plaintiff's architect describing its plan: "No more than 4 devices permitted." Moreover, the City has already instituted a civil suit against over sixty amusement arcades operating without licenses and has brought many criminal actions. Rather than risk criminal and civil penalties, plaintiff seeks a declaration that the City's scheme violates plaintiff's First and Fourteenth amendment rights and its civil rights under 42 U.S.C. § 1983. Plaintiff also demands an injunction to enable it to open its restaurant without fear of civil liability or criminal prosecution.
The defendant moves to dismiss the complaint on the grounds that (1) there is no case or controversy, and (2) under the abstention doctrine this Court should decline jurisdiction. The motion is denied.
Defendant's argument that there is no case or controversy is without merit. Plaintiff is "not obliged to take the risk of prosecution, fines and imprisonment and loss of property in order to secure an adjudication of (its) rights." Terrace v. Thompson, 263 U.S. 197, 216, 44 S. Ct. 15, 18, 68 L. Ed. 255 (1923). Neither is plaintiff compelled to engage the City in a formal pas de deux by formally applying for a license in the face of the City's regulatory maze, the clear proscriptions issued by the Department of Buildings and the unequivocal statement of the Queens Borough Superintendent that he will not approve plaintiff's plans.
Had plaintiff formally applied for a license, the present regulatory scheme would inevitably have precluded him from receiving a license. Indeed, the City has not pointed to one instance where a license such as that sought by plaintiff has been issued. To the contrary, the City has instituted a massive civil suit against over sixty amusement arcades for operating without a license; and it continues to issue criminal summonses every day. Plaintiff has sought a determination from the Queens Borough Superintendent of the legality of its plan and been told in no uncertain terms that it will not pass muster. Requiring plaintiff to seek a license formally at this point would merely delay an adjudication of its rights.
Plaintiff is in a position "between the Scylla of intentionally flouting (the Code) and the Charybdis of foregoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding." Steffel v. Thompson, 415 U.S. 452, 462, 94 S. Ct. 1209, 1217, 39 L. Ed. 2d 505 (1974). See also Hogge v. Members of City Council, 482 F.2d 575 (4th Cir. 1973), cert. denied sub nom., Blair v. Joseph, 416 U.S. 955, 94 S. Ct. 1968, 40 L. Ed. 2d 305 (1974). Accordingly, the Court finds that the issues raised in plaintiff's complaint are presently justiciable.
Defendants argue that because there are numerous criminal actions and a massive civil suit pending in the New York State courts, this court should decline jurisdiction, pursuant to the Pullman abstention doctrine. In Pullman, the Supreme Court held that in an action for an injunction, a district court could stay the federal action pending the outcome of a state action where uncertain state law issues might be determined and this, in turn, might obviate the need to decide a constitutional question. Railroad Commission of Texas v. Pullman, 312 U.S. 496, 501, 61 S. Ct. 643, 645, 85 L. Ed. 971 (1941). The Court, however, is mindful that abstention is "(an) extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it." Colorado ...