Regulating those establishments that feature dancers who merely strip to bathing suits raises new constitutional questions because such a restriction is significantly more intrusive than one that only regulates stripping to nudity or toplessness. The Barnes case does not apply here because that ruling hinged upon the Supreme Court's finding that the statute did not regulate dancing in G-strings and pasties and therefore did not infringe upon more First Amendment rights than necessary to achieve the government's objective. Here, however, Chapter 44 goes well beyond the restrictions discussed in Barnes. Because of its inclusion of the term "strippers", Chapter 44 does regulate establishments that feature dancing in G-strings and pasties (assuming that the performers stripped down to G-strings and pasties). Thus, the court must examine whether this particular aspect of Chapter 44 is also constitutional.
The degree of scrutiny which the court must use depends upon the type of regulation at issue. For example, ordinances which regulate a given type of speech under all circumstances invoke a higher level of judicial scrutiny than those ordinances which merely regulate the time, place and manner at which that speech can occur. E.g., Olivieri v. Ward, 801 F.2d 602, 605 (2d Cir. 1986). Chapter 44's regulation of locations for establishments which feature stripping is a "time, place and manner" regulation because it does not place an outright ban on such establishments, but rather dictates only where they may locate within the City. In this respect, Chapter 44 is virtually indistinguishable from the ordinances reviewed by the Supreme Court in Renton, 475 U.S. at 43 (prohibiting adult motion picture theatres from locating within 1,000 feet of any residential zone, church, park, or school), and American Mini Theatres, Inc., 427 U.S. at 52 (prohibiting adult theatre within 1,000 feet of any two other "regulated uses" or within 500 feet of any residential zone), both of which the Court characterized as legitimate time, place and manner restrictions. Since Chapter 44 does not regulate the content of plaintiffs' expression but instead merely regulates where plaintiffs may engage in such expression or the manner in which they do so, the ordinance is properly deemed a "time, place and manner" restriction. Cf., e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 297-98, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984); Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647-49, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981).
Chapter 44 may be sub-categorized as a "content neutral" time, place and manner regulation on speech. Plaintiffs understandably take issue with this classification; after all, the ordinance treats establishments that feature strippers differently from other kinds of establishments. Cf. Renton, 475 U.S. at 49. The ordinance is nonetheless deemed content-neutral because it is not aimed at the content of plaintiffs' expression, but is aimed instead at the secondary effects of that expression. See id.; accord, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989) ("[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not on others") (citations omitted); Clark, 468 U.S. at 295. The City presented considerable evidence, most notably through the testimony of Councilors Guy and McCarty, that Chapter 44, like the statute at issue in Renton, "is designed to prevent crime, protect the city's retail trade, maintain property values, and generally 'protect and preserve the quality of the city's neighborhoods, commercial districts, and the quality of urban life,' not the suppression of unpopular views." Cf. id. 475 U.S. at 48 (citation omitted).
Both councilors testified as to their concerns about the effect that adult entertainment businesses would have on their surrounding neighborhoods. Councilor Guy provided especially detailed evidence of complaints by his constituents, including specific instances of undesirable conduct that have already occurred at Looker's. See supra p. 10. There is no evidence suggesting that Chapter 44 was enacted as a direct assault upon the expression of those establishments that feature stripping; there is ample evidence indicating that the ordinance was enacted to prevent the "secondary effects" that such establishments might have.
Therefore, Chapter 44 is properly characterized as a content-neutral time, place and manner regulation.
As a content-neutral time, place and manner restriction, Chapter 44 is valid only if it is narrowly tailored toward serving a substantial governmental interest and allows for reasonable alternative avenues of communication. E.g. Ward, 491 U.S. at 791; Clark, 468 U.S. at 293; accord International Eateries of Am., Inc. v. Broward Cty., 941 F.2d 1157, 1161-62 (11th Cir. 1991) (explaining "three-part test"), cert. denied, 117 L. Ed. 2d 517, 112 S. Ct. 1294 (1992). The City has carried its burden of proving each element of this inquiry. First, with respect to the substantial governmental interest, the Supreme Court has stated on numerous occasions that the government has a substantial interest in "preserving the quality of urban life," E.g. Renton, 475 U.S. at 50 (citing American Mini Theatres, 427 U.S. at 71), and preventing urban blight, Taxpayers for Vincent, 466 U.S. at 805. See Berman v. Parker, 348 U.S. 26, 32-33, 99 L. Ed. 27, 75 S. Ct. 98 (1954); see also Metromedia, Inc. v. San Diego, 453 U.S. 490, 507-08, 69 L. Ed. 2d 800, 101 S. Ct. 2882 (1981). "It is well settled that the state may legitimately exercise its police powers to advance esthetic values." Taxpayers for Vincent, 466 U.S. at 805.
The City need not make an independent finding that establishments that feature strippers will have harmful secondary effects on the surrounding neighborhoods. The fact that the City relied upon the experiences of other municipalities satisfies the requirement that the statute not be based upon conclusory or speculative evidence. Renton, 475 U.S. at 50; International Eateries of Am., Inc., 941 F.2d at 1162. To that end, it is significant that the Supreme Court has noted on several occasions that "adult entertainment businesses" generally cause the harmful secondary effects that the City seeks to avoid through Chapter 44. E.g. Barnes, 111 S. Ct. at 2461-62; Renton, 475 U.S. at 51; American Mini Theatres, 427 U.S. at 71. This court is convinced, at least at this preliminary stage, that the City's interests in preserving its residential neighborhoods and maintaining the integrity of other areas at which families might congregate, to wit parks, schools, and religious institutions, is a legitimate function of the City's zoning authority and furthers a substantial governmental interest. This court is also satisfied that Chapter 44's regulation of the location of establishments that feature stripping, even when that stripping does not result in total or partial nudity, is narrowly tailored toward furthering those interests.
See International Eateries of Am., Inc., 941 F.2d at 1162-63.
The court is also satisfied that the ordinance leaves available sufficient alternative locations for these establishments. The City presented evidence that at least four percent of the City remains available for this type of conduct. The City's four percent estimate is graciously conservative, however, for it counts as "available" only whole lots that border a roadway; the City did not account for all of the partial lots that could be subdivided and are also available, nor did it account for lots that do not front a roadway. Inclusion of those lots would have been entirely appropriate, and would have increased the available acreage to more than five percent of the City, an amount that the Supreme Court found acceptable in Renton, 475 U.S. at 53.
Plaintiffs' argument that much of the four percent is already occupied by other businesses and is hence not truly "available" is without merit. The Supreme Court rejected this argument in American Mini Theatres, writing that "the inquiry for First Amendment purposes is not concerned with economic impact." 427 U.S. at 78. The Court was more explicit in Renton, when it wrote:
That respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation. And although we have cautioned against the enactment of zoning regulations that have "the effect of suppressing, or greatly restricting access to, lawful speech," we have never suggested that the First Amendment compels the Government to ensure that adult theatres, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices.
475 U.S. at 54.
In light of American Mini Theatres and Renton, the fact that much of the "available" space is already occupied is of no consequence to this analysis.
Chapter 44 leaves at least four percent-- and more likely at least five percent-- of the City available to plaintiffs at which they may legally operate an establishment that features strippers. Thus, in accordance with Renton, Chapter 44 leaves available to plaintiffs sufficient alternative avenues for their communication and is, therefore, not overly broad. See id. at 53. Insofar as it regulates the location of establishments that feature strippers, Chapter 44 is a valid content-neutral time, place and manner restriction.
In sum, the court finds that plaintiffs are not likely to succeed on their claim that Chapter 44 is unconstitutional or was otherwise unconstitutionally enacted. Therefore, a preliminary injunction enjoining the City from enforcing that ordinance would be inappropriate.
C. Enforcement of zoning ordinances
Finally, plaintiffs argue that City officials have unlawfully harassed them through a scheme of discriminatory enforcement of Zoning ordinances. Plaintiffs point to the apparently irrational manner by which the City enforced its Zoning requirements against them as circumstantial evidence that the enforcement is in reality a pretext for a scheme of discrimination. Specifically in this regard, plaintiffs highlight defendant Ladd's notes concerning the strict and burdensome enforcement of Lookers' Special Permit as well as Vaughn's inability to explain the Special Permit requirements as evidence that this enforcement is a pretext for harassment and discrimination.
Indeed, the evidence revealed City Zoning and enforcement practices that are so baffling that they border on the laughable. Plaintiffs obviously have felt the brunt of some of these practices. Most disturbing is the City's insistence that Looker's apply for one Special Permit as a prerequisite to demolishing a kitchen wall-- a requirement which by itself seems reasonable-- and a second Special Permit which authorizes the resulting larger space. It should (but apparently does not) go without saying that, as a matter of common logic and physics, it is impossible for one to demolish a wall that separates two rooms without resulting in a larger room. The City's requirement that plaintiffs acquire a separate permit to authorize the resulting space after the demolition of the wall is puzzling, to say the least. The court empathizes with plaintiffs' frustration with such a procedure.
Nevertheless, while the court is convinced that the City's code enforcement procedures may need an overhaul, it cannot conclude that they were applied in a discriminatory manner against plaintiffs. The City's Director of Code Compliance, Mr. Vaughn, persuasively testified that the City followed its standard operating procedures in this case and did not discriminate against Looker's. In other words, Vaughn offered uncontradicted testimony that every citizen of Syracuse receives the same treatment. The court does not hesitate to express its ambivalence about Vaughn's assertion. While his statement, which the court accepts as true, defeats plaintiffs' claim that they suffered discriminatory treatment, it does not bode well for the other citizens of Syracuse who must similarly suffer through this bureaucratic nightmare. Fortunately, this matter of public policy is not for the court to resolve. The City's code enforcement procedures may be woeful, but they do not implicate the First Amendment or the equal protection clause.
The evidence adduced at the hearing did not fully support plaintiffs' claim that the City issued its Stop Work Orders in order to delay the opening of Looker's long enough to allow for the passage of Chapter 44. By plaintiffs' own admission, the City vacated its Stop Work Orders on January 5, 1993, as soon as plaintiffs filed their application for a new Special Permit. At that point plaintiffs were entitled to finish their preparations and open Looker's. Instead of immediately opening Looker's to the public, however, plaintiffs independently decided to postpone the opening for approximately one week so that they could advertise. That is to say, plaintiffs made a business decision to delay the opening; City Zoning officials did not prevent the opening. The City's non-interference with Lookers' opening was made most clear by the testimony of Mr. Santucci, the radio sales representative who stated that he observed a "ceremonial" show at Looker's on January 12, 1993, three days before Chapter 44 was formally amended. Just as City zoning officials did not prevent the ceremonial opening from taking place on January 12, neither did they prevent Looker's from formally opening to the public on that date. The decision to delay the opening was a business decision made solely by plaintiffs.
Plaintiffs' argument that they suffered from discriminatory treatment by City zoning officials is not supported by the evidence. At least at this preliminary stage of the litigation, plaintiffs have not convinced the court that they are likely to succeed on their claim of discriminatory treatment in violation of the Fourteenth Amendment. Therefore, a preliminary injunction which would affect City zoning practices as they relate to Looker's would be inappropriate.
Although they have established that they will suffer irreparable harm if preliminary relief is not granted, plaintiffs have failed to convince the court that they are likely to succeed on the merits of any their claims. The court finds that section 5-11 and Chapter 44 of the City's Revised General Ordinances are likely constitutional and that neither was likely enacted with an impermissible motive. The court further finds that the City likely did not enforce its zoning ordinances against plaintiffs in an unconstitutional manner. Accordingly, the court vacates the extant temporary restraining order and denies in its entirety plaintiffs' application for a preliminary injunction.
Given the obvious complexity of the foregoing analysis, in the interest of clarity the court offers the following explanation of the effect of today's ruling. Underlying this explanation is the fact that section 5-11 effects a city-wide ban on total nudity, while Chapter 44 effects a ban on establishments that feature nude dancing, topless dancing, and strippers, male and female, only in certain limited areas of the City. With this as background, the court summarizes the effect of today's ruling as follows:
First, the City may restrict nude dancing at Looker's. Such a restriction would be valid under both section 5-11 and Chapter 44. Since section 5-11 provides an independent basis for outlawing nude dancing, the restriction may apply city-wide. Thus, nowhere in the City of Syracuse may plaintiffs operate an establishment that features totally nude dancing. Officials seeking to enforce the ordinances against totally nude dancing should note the distinction between section 5-11 and Chapter 44. Section 5-11 prevents dancers from appearing in a state of total nudity; it is directed at the dancers. By contrast, Chapter 44 prevents individuals from operating an establishment that features nude dancing; it is directed at the operator of the establishment, not the dancers.
Second, the City may also prevent plaintiffs from featuring topless dancing at the current Looker's site pursuant to Chapter 44. Since section 5-11 proscribes only total nudity, that statute does not provide the basis for this ruling; the restriction on topless dancing is grounded only on Chapter 44. The restriction on topless dancing at Looker's is valid only because Looker's falls within the reach of Chapter 44, i.e., it is an establishment that features topless dancing within 1,000 feet of residences, schools, religious institutions, and public parks. Plaintiffs are entitled to operate an establishment that features topless dancing in areas of the City that are not affected by Chapter 44.
Third, the City may also prevent plaintiffs from featuring strippers at the current Looker's site pursuant to Chapter 44. To the extent that a stripper disrobes to a state of total nudity, the City may also restrict that conduct (pursuant to section 5-11) throughout the City. Plaintiffs are entitled to operate an establishment that features strippers in areas of the City that are not affected by Chapter 44, provided that the performers do not disrobe to a state of total nudity (which is still barred by section 5-11).
Fourth, when considered together, these ordinances leave a narrow window of opportunity for plaintiffs at the current site of Looker's. Combined, these ordinances only outlaw nudity, nude dancing, topless dancing, and stripping at locations covered by Chapter 44. The ordinances do not outlaw establishments that feature dancers who wear G-strings and pasties or bathing suits, provided that the those dancers arrive on the stage in that attire; the dancers may not strip down to that attire. If the performers disrobe to G-strings and pasties (or bathing suits, or even to nudity or toplessness) after arriving on the stage, then Looker's would arguably be considered an establishment that features "strippers" in violation of Chapter 44.
IT IS SO ORDERED.
Dated: February 11, 1993
Syracuse, New York
HOWARD G. MUNSON
SENIOR UNITED STATES DISTRICT JUDGE