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HICKERSON v. CITY OF NEW YORK

June 27, 1996

RACHEL HICKERSON, ET AL., Plaintiffs, against THE CITY OF NEW YORK, ET AL., Defendants. AMSTERDAM VIDEO INC., ET AL., Plaintiffs, - against - THE CITY OF NEW YORK, ET AL., Defendants.


The opinion of the court was delivered by: CEDARBAUM

 CEDARBAUM, J.

 Plaintiffs in these two actions challenge the constitutionality of a recent amendment to the New York City zoning resolution which regulates the zoning of "adult establishments." Defendants, the City of New York and three City officials, removed the actions to this Court because the complaints assert claims under the United States Constitution as well as the New York State Constitution. Plaintiffs move to remand the actions, including the federal constitutional claims, to the state court. For the reasons that follow, these cases warrant abstention under the doctrine of Railroad Commission v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). Accordingly, all of the claims arising under the New York Constitution are remanded to the Supreme Court of New York County. Remand of the federal claims is denied but the federal claims are stayed pending resolution of the state claims.

 Background

 The New York City Council adopted Text Amendment N 950384 ZRY (the "resolution") to the city zoning resolution on October 25, 1995. The resolution adds to the zoning resolution special provisions applicable to "adult establishments." It defines an adult establishment as "a commercial establishment where a 'substantial portion' of the establishment includes an adult book store, adult eating or drinking establishment, adult theater, or other adult commercial establishment, or any combination thereof." Resolution § 12-10. (The resolution is attached to the Amsterdam complaint and also is Exhibit A to the Declaration of Albert Fredericks dated May 16, 1996.) Adult bookstores are defined as bookstores that have as a "substantial portion" of their stock-in-trade books, magazines, photographs, films, video cassettes, or other printed matter or visual representations that are "characterized by an emphasis upon the depiction or description of 'specified sexual activities' or 'specified anatomical areas.'" Id. § 12-10(a). An adult eating or drinking establishment is an eating or drinking establishment that "regularly features" either live performances that are "characterized by an emphasis on 'specified anatomical areas' or 'specified sexual activities'"; films or other photographic reproductions that are "characterized by an emphasis upon the depiction or description of 'specified sexual activities' or 'specified anatomical areas'"; or "employees who, as part of their employment, regularly expose to patrons 'specified anatomical areas'"; and "which is not customarily open to the general public during such features because it excludes minors by reason of age." Id. § 12-10(b). An adult theater is a theater that "regularly features" films or other similar photographic reproductions that are "characterized by an emphasis on the depiction or description of 'specified sexual activities' or 'specified anatomical areas'" or live performances that are "characterized by an emphasis on 'specified anatomical areas' or 'specified sexual activities,'" and "which is not customarily open to the general public during such features because it excludes minors by reason of age." Id. § 12-10(c). Other adult commercial establishments are facilities that "feature[] employees who as part of their employment, regularly expose to patrons 'specified anatomical areas' and which is not customarily open to the general public during such features because it excludes minors by reason of age." § 12-10(d).

 The resolution defines "specified sexual activities" and "specified anatomical areas." Id. § 12-10. It does not define "substantial portion" as that term is used in the definition of adult establishment and adult bookstore, but provides that

 
for the purpose of determining whether a "substantial portion" of an establishment includes an adult bookstore, adult eating or drinking establishment, adult theater, or other adult commercial establishment, or combination thereof, the following factors shall be considered: (1) the amount of floor area and cellar space accessible to customers and allocated to such uses; and (2) the amount of floor area and cellar space accessible to customers and allocated to such uses as compared to the total floor area and cellar space accessible to customers in the establishment.

 Id. With respect to the definition of adult bookstores the resolution provides:

 
For the purpose of determining whether a bookstore has a "substantial portion" of its stock in materials defined in paragraphs (a)(1) or (a)(2) hereof, the following factors shall be considered: (1) the amount of such stock accessible to customers as compared to the total stock accessible to customers in the establishment; and (2) the amount of floor area and cellar space accessible to customers containing such stock; and (3) the amount of floor area and cellar space accessible to customers containing such stock as compared to the total floor area and cellar space accessible to customers in the establishment.

 Id. The resolution does not define the phrases "regularly features" or "characterized by an emphasis," which are used in the definitions of adult eating and drinking establishment and adult theater.

 The resolution provides that adult establishments are not permitted in various zoning districts, including residential districts and some commercial and manufacturing districts. Id. §§ 32-01; 42-01; Fredericks Decl. P 8. It provides further that adult establishments must be located at least 500 feet from a church or school or another adult establishment. Resolution §§ 32-01(b) & (c); 42-01(b) & (c). Under the resolution, one adult establishment only is permitted on a single zoning lot and no adult establishment is permitted to exceed 10,000 square feet in floor area and cellar space. Id. §§ 32-01(d) & (e); 42-01(d) & (e). The resolution also includes special sign regulations for adult establishments. Id. §§ 32-69; 42-55.

 Non-conforming adult establishments must, under the resolution, terminate within one year of the effective date of the resolution. Id. § 52-77. The resolution includes special "amortization" provisions, however, for owners of non-conforming establishments who have not recovered substantially all of their capital investment in the establishment (or non-conforming sign). Such owners may apply to the Board of Standards and Appeals for permission to continue for additional time sufficient for the owner to recover "substantially all of the financial expenditures incurred related to the non-conformity." Id. § 72-40.

 The resolution became effective on November 1, 1995, less than one year ago. Accordingly, no establishment has yet been required to close or move because of its provisions. Moreover, the resolution has not been construed by any court.

 Plaintiffs in the first action (the "Hickerson plaintiffs") are Manhattan and Bronx residents who allege that they regularly patronize adult establishments. They claim that the resolution will prevent them from continuing to patronize the adult establishments they currently frequent, and will reduce significantly the number of alternative establishments available to them. The Hickerson plaintiffs contend that the resolution violates their rights to free expression. They assert three claims under article I section 8 of the New York Constitution and three claims under the First and Fourteenth Amendments to the United States Constitution. As their first cause of action, plaintiffs allege that the resolution intentionally restricts expression because it is directed at the "content and the time, place and manner of the messages conveyed in 'adult businesses,'" and that it is not necessary to advance a compelling interest and does not advance an interest in the least restrictive manner. (Hickerson Compl. PP 72-73.) As their second cause of action, the Hickerson plaintiffs claim that the resolution "fails to restrict expression by means 'no broader than necessary' to achieve a legitimate and important governmental objective." (Id. P 77.) As a third cause of action plaintiffs allege that the resolution violates article I section 8 of the New York Constitution in that it is too vague. (Id. PP 79-83.) As a fourth cause of action, plaintiffs assert that the resolution violates the First Amendment to the United States Constitution by failing to satisfy the requirements of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986). ( Id. PP 84-90.) As a fifth cause of action, the complaint alleges that the resolution is a content-based restriction that is not narrowly tailored to serve a compelling government interest, in violation of the First Amendment. ( Id. PP 91-94.) Finally, as a sixth cause of action, the complaint alleges that the resolution violates the First and Fourteenth Amendments because it is too vague. ( Id. PP 95-99.)

 Plaintiffs in the second action (the "Amsterdam plaintiffs") are owners and operators of business establishments which they allege are adult establishments as defined by the resolution. They allege that the resolution will force them to terminate the operation of their businesses and thereby cause them significant economic harm. The Amsterdam plaintiffs assert fourteen causes of action, thirteen of which allege violations of the state constitution. Four causes of action elaborate different aspects of plaintiffs' claim that the resolution violates their rights to free expression under article I section 8. (Amsterdam Compl. PP 143-238.) Five causes of action assert that the resolution denies plaintiffs equal protection of the law in violation of article I section 11. (Id. PP 239-54, 274-92, 312-17.) The Amsterdam plaintiffs also assert two causes of action alleging that the resolution is unconstitutionally vague, (id. PP 270-73, 293-311), one cause of action alleging that the resolution grants an impermissible preference in favor of religion in violation of article I section 3, (id. PP 255-69), and one cause of action alleging that the amortization provisions of the resolution are inadequate and constitute an unconstitutional taking without just compensation in violation of article I section 7, (id. PP 318-31). As a fourteenth cause of action the Amsterdam complaint alleges that the resolution violates plaintiffs' rights to free speech and to equal protection of the law in violation of the First and Fourteenth Amendments to the United States Constitution. (Id. PP 332-43.)

 Plaintiffs in both cases seek declaratory and injunctive relief. The Hickerson plaintiffs request in addition costs and attorneys' fees.

 Pullman Abstention

 Abstention is an extraordinary and narrow exception to "the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 817, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976) (citations omitted); see also Quackenbush v. Allstate Ins. Co., 135 L. Ed. 2d 1, 1996 U.S. LEXIS 3609, 64 U.S.L.W. 4379, 4382, 116 S. Ct. 1712 (June 3, 1996). Abstention is warranted only in "exceptional circumstances" in which the court's decision not to exercise its jurisdiction would "clearly serve an important countervailing interest." Colorado River, 424 U.S. at 813 (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 (1959)). Federal courts are also obligated, however, to avoid deciding a federal constitutional question unless decision is "absolutely necessary to a decision of the case." Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J. concurring). Of particular relevance here is the well-settled rule that a case should be decided first on state law grounds in order to eliminate the need to decide a federal constitutional question. Siler v. Louisville & Nashville R.R., 213 U.S. 175, 53 L. Ed. 753, 29 S. Ct. 451 (1909).

 In Railroad Commission v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), the plaintiffs challenged an order of the Texas Railroad Commission requiring railroad sleeping cars to be staffed by a person with the rank of Pullman conductor. All Pullman conductors were white, and all Pullman porters were African-American. Until the challenged order, Pullman porters were in charge of sleeping cars on trains carrying only one such car. The Pullman Company and the railroads argued in federal court that the order violated Texas law and the Equal Protection, Due Process, and Commerce Clauses of the United States Constitution. Pullman porters intervened and ...


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