The opinion of the court was delivered by: HOWARD G. MUNSON
MEMORANDUM-DECISION AND ORDER
This highly publicized dispute needs little in the way of introduction. On the surface, at issue is plaintiffs' desire to operate within the City of Syracuse a club that features nude and topless dancers. Upon stripping away the layers, however, one is exposed to a controversy that is hardly skin deep. The court is faced with two conflicting interests which through the years have helped to develop the body of our constitutional jurisprudence.
On the one hand is a community's well-established interests in protecting order and morality, preserving the quality of urban life, promoting retail trade, maintaining property values, and preventing urban blight. All of these interests are recognized as desirable objectives of a democratic government in a civilized society. See, e.g., Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986); Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973). So firmly entrenched is the legitimacy of the government's interest in promoting these societal objectives that it needs no elucidation here. See, e.g., Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 805, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984) (citing cases).
On the other hand is an individual's right to express himself without oppression from the democracy's majoritarian process. The First Amendment protects the expression of ideas, especially unpopular ideas, as well as the means by which the speaker chooses to convey those ideas. See, e.g., Texas v. Johnson, 491 U.S. 397, 404 & 414, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55-56, 99 L. Ed. 2d 41, 108 S. Ct. 876 (1988); Federal Communications Comm'n v. Pacifica Foundation, 438 U.S. 726, 745-46, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978). "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive . . . ." Johnson, 491 U.S. at 414 (citations omitted); accord, e.g., Street v. New York, 394 U.S. 576, 592, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969). The fact that the expression is not in the form of "speech" is irrelevant. It is now settled, for example, that performances in theatres are entitled to First Amendment protection even though they do not fit squarely into the traditional, everyday definition of speech, because such performances "may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression." California v. La Rue, 409 U.S. 109, 129, 34 L. Ed. 2d 342, 93 S. Ct. 390 (1972) (Marshall, J. dissenting); see also, e.g., Johnson, 491 U.S. at 404-06 (First Amendment protection is not limited to the spoken word but extends to the expression of ideas) (citations omitted). The expression at issue in this case is nude and/or topless dancing, an activity which the Supreme Court has repeatedly recognized as "expressive conduct" within the scope of the First Amendment. See generally Barnes v. Glen Theatre, Inc., 115 L. Ed. 2d 504, 111 S. Ct. 2456, 2460 (1991); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 66, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975); La Rue, 409 U.S. at 118.
Often times, as in the present case, an individual's interest in freedom of expression clashes with the government's interest in societal order so directly that the two positions are irreconcilable. In these cases, one interest must give way to the other. E.g. International Soc'y for Krishna Consciousness, Inc. v. Barber, 506 F. Supp. 147, 148-49 (N.D.N.Y. 1980), rev'd on other grounds, 650 F.2d 430 (2d Cir. 1981). The instant proceeding presents the court with the daunting task of balancing these important but competing interests to determine which must give way.
Plaintiffs Robert O'Malley and Gary Leibowitz own and operate Looker's, Inc., an establishment at which they would like to feature dancers who perform "all nude, all the time." When they learned of the City's imminent plans to rely upon various ordinances to close Looker's and prosecute performers and/or operators, plaintiffs brought this action seeking, inter alia, to enjoin the City taking such action. Plaintiffs allege that the City's enforcement of its ordinances would violate their First Amendment right to free expression and their Fourteenth Amendment right to equal protection under the law.
Along with their complaint, filed on January 19, 1993, plaintiffs submitted an application for a temporary restraining order to enjoin the City from enforcing its ordinances. This court heard oral argument and received supplemental briefing from both parties regarding plaintiffs' application, after which it entered a temporary restraining order enjoining the City from enforcing one of its ordinances, Chapter 44 of the Revised General Ordinances (hereinafter "Chapter 44"). The court denied plaintiffs' application for an order temporarily restraining the City from enforcing another ordinance, section 5-11 of the Revised General Ordinances (hereinafter "section 5-11").
Pursuant to Fed. R. Civ. P. 65, the court subsequently conducted an evidentiary hearing to determine whether it should (1) convert the temporary restraining order into a preliminary injunction, (2) vacate the temporary restraining order altogether, and/or (3) issue a preliminary injunction with respect to the City's enforcement of section 5-11. Having considered the evidence and counsels' arguments regarding further preliminary relief in this action, the court now issues the following findings pursuant to Rule 65.
On November 4, 1992, plaintiffs O'Malley and Leibowitz leased a building at 1400 North Salina Street for use as a "restaurant and showclub." They subsequently acquired various permits and licenses which they believed would allow them to operate their new facility. Most notably, on December 30, 1992, plaintiffs obtained from the City a license "to carry on the business of Dance, Floor Show or Entertainment at Looker's, Inc., 1400 N. Salina St., Syracuse, NY." Neither the application nor the license designates the particular type of dance, floor show, or entertainment that might take place at Looker's. License in hand, plaintiffs planned to open their new club to the public in early January, 1993, as a showcase for nude dancers.
A. Enactment of amendments to Chapter 44
Neighbors and public officials apparently first learned of plaintiffs' plan to feature nude dancers in late December, 1992 and early January, 1993, mostly through publicity in which plaintiffs advertised Looker's as being "all nude, all the time." Defendant Charles Ladd, a City Planner and member of the City Planning Commission, was seemingly among the first public officials to learn about the proposed nude dancing at Looker's. Ladd testified that he learned of plaintiffs' plans for Looker's on December 23, 1992, when an anonymous "concerned resident" informed him of the possibility that a topless bar might be opening at that location. See Ladd Aff. (1/29/93) P 22 & exh. "E". Later that day, plaintiff Leibowitz contacted Ladd concerning an unrelated matter and during the conversation confirmed that he intended to feature "live adult entertainment" at the establishment. Id. P 25.
Two members of the City's Common Council, Frederick Guy and Nancy McCarty, both offered uncontradicted testimony that they had not even heard of Looker's until early January, 1993, when they received complaints from constituents concerning the possible opening of a "strip joint" on the City's North Side. As will become apparent infra, the early January, 1993 "discovery date" by Councilors Guy and McCarty of the proposed nude dancing at Looker's is significant because by that date, they had already co-sponsored in the Common Council the legislation which ultimately amended Chapter 44. The amended Chapter 44 outlaws operation of "adult entertainment businesses" within 1,000 feet of, inter alia, residences, religious institutions, schools, and public parks.
The ordinance defines an "adult entertainment business" as being, in pertinent part, "a public establishment which features topless dancers, nude dancers or strippers, male or female." Both councilors testified in detail that they sponsored the legislation before learning of plaintiffs' plans concerning Looker's. In fact, Councilor Guy first proposed the legislation in October, 1992, and Councilor McCarty joined in sponsorship on December 23, 1992. Significantly, this marked the second occasion on which Councilor Guy sponsored such legislation. He proposed similar legislation in March, 1992, but that measure was soundly defeated.
Noting the importance of the chronology of events giving rise to this litigation, the City has offered extensive proof concerning the actions of various City officials vis-a-vis the proposed nude dancing at Looker's. In June and August, 1992, after Councilor Guy's initial (unsuccessful) attempt to amend Chapter 44, the City received license and special permit applications from at least two other proposed "adult entertainment businesses," the first one located at 617 Wolf Street and the other at 117 Bruce Street. Neither proposed establishment had any affiliation with plaintiffs. The applicants openly notified the City Planning Commission or other City officials during these proceedings that they intended to operate establishments featuring nude or semi-nude dancing. Having no legitimate basis for denying the requests, the City's License Commissioner, Margaret Davies, approved both applications.
Then, in October, 1992, after learning about the proposed establishments at Wolf Street and Bruce Street, Councilor Guy reintroduced his proposal to amend Chapter 44. This time, in light of the reported plans for nude or topless entertainment at these two establishments, the council was more receptive to amending Chapter 44. As mentioned above, councilor McCarty co-sponsored this legislation on December 23, 1992. Both councilors testified that they and others were acutely concerned with the detrimental effects that such "adult entertainment businesses" might have on the surrounding neighborhoods. Thus, they were eager to amend Chapter 44 as quickly as possible. The resolution was placed on the Council's agenda on November 2, 1992, and then "held over" for two meetings so that the councilors could strike a compromise regarding certain details of the ordinance.
The councilors apparently conducted their deliberations over Chapter 44 without knowing that on October 2, 1992, plaintiffs had filed with the City an application for an entertainment license. The Councilors had no reason to know about plaintiffs' efforts because the application was devoid of any mention that plaintiffs intended to operate an "adult entertainment business" at their premises. As mentioned above, plaintiffs received their license on December 30, 1992. Even then, however, the councilors were still unaware of plaintiffs' plans, and by then Councilor McCarty had already co-sponsored Councilor Guy's amendment to Chapter 44.
Most of the councilors became aware of plaintiffs' plans during the first week in January, 1993. At that time, constituents voiced their strong opposition to the opening of such a facility in their neighborhood. One constituent who resides near Looker's allegedly complained to Councilor Guy that she was deeply offended when a man standing near Looker's asked her whether she would be willing to perform nude at the establishment. On January 11, 1993, the Common Council approved the amendment to Chapter 44, and the mayor, defendant Young, signed the legislation into law on January 15, 1993. Inasmuch as Looker's did not finally open until one day later, on January 16, 1993, the newly amended Chapter 44 was effective against Looker's. Moreover, the parties agree that Looker's is located within 1,000 feet of some of the premises described within Chapter 44 and hence is covered by the ordinance's regulation of adult entertainment businesses.
B. Enforcement of ordinances
Plaintiffs argue that they would have opened Looker's sooner-- indeed, they were prepared to open on January 12, 1993-- but for the City's selective enforcement of its zoning ordinances. Plaintiffs contend that the City issued various "Stop Work Orders" to forestall final preparations for Lookers' opening, which in turn prevented advertising for the opening. According to plaintiffs, the City issued the Stop Work Orders so that the opening would be delayed long enough to allow for the passage of the amendment to Chapter 44.
The evidence surely suggests that some of the City's Zoning practices are peculiar, to say the least. For example, the Stop Work Order about which plaintiffs complain resulted from the removal of a kitchen wall at Looker's. Plaintiffs alleged that the wall was removed so that the dining area would be larger. The City contends that the wall removal and consequent enlargement of the dining room violated the terms of Lookers' "Special Permit," in which the approved floor specifications are explicitly detailed. Although the wall was removed sometime in the Fall of 1992, the City did not discover the modification until late December, 1992. After discovering the modification, on December 31, 1992 (i.e., months after the wall was removed), the City issued to plaintiffs a Stop Work Order, directing them to refrain from removing the wall or making any other structural improvements at Looker's pending proper authorization of the work.
When questioned at the hearing, plaintiff Leibowitz testified that he postponed the opening of Looker's primarily because the Stop Work Order caused plaintiffs to miss the advertising deadline of a local weekly newspaper. Unable to advertise the opening of Looker's, he believed that the opening should be delayed for one week so that it could be advertised in the following week's newspaper. The evidence seems clear that, but for their lack of advertising, plaintiffs were prepared to open Looker's before the January 16, 1993 actual opening. In that regard, Robert Santucci, a sales representative for a local radio station, testified that Looker's presented a "ceremonial-opening" show for him on January 12, 1993, at which a dancer performed for him while he had a drink. Santucci's testimony supported plaintiffs' position that they were prepared to open before the Common Council's January 15, 1993 passage of the amendment to Chapter 44. The one week delay in the actual opening, however, was just long enough to allow the City to enact the amendments to Chapter 44 before the opening of Looker's.
Plaintiffs further contend that the City used its permitting process to harass plaintiffs into changing their plan to feature nude dancing at Looker's. In support of this argument, plaintiffs refer first to handwritten notes prepared by defendant Ladd in Late December, 1992, in which Ladd stated that "use of this property will have to comply literally to the plans and conditions referenced in the Special Permit," and that "no changes or alterations of the plans are permitted." Ladd Aff. exh. "G" (emphasis in original). The City's rigid enforcement of the Special Permit requirements against Looker's was so strict that plaintiffs were prohibited from even moving bookshelves or an allegedly portable stage.
Although plaintiffs contend that they were subject to unusually exacting enforcement of such (seemingly) trivial permit requirements, they curiously offered no evidence suggesting that other similarly situated individuals were afforded more lenient treatment.
Plaintiffs also refer to the testimony of defendant Ladd and Daniel Vaughn, the City's Director of Code Enforcement, as evidence of discriminatory enforcement. Upon learning of plaintiffs' plans, Councilor Guy allegedly consulted Ladd in an effort to determine what "procedures" might be available to prevent Looker's from opening with nude dancing. Ladd further testified, however, that his discussion with Councilor Guy took place some time after January 5, 1993, i.e., after the Stop Work Order had already been issued and subsequently vacated, and that the discussion did not affect ...