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TOBACK v. CITY OF LONG BEACH

August 8, 1996

JACK TOBACK, Plaintiff, against CITY OF LONG BEACH, Defendant.


The opinion of the court was delivered by: ORENSTEIN

 ORENSTEIN, United States Magistrate Judge:

 BACKGROUND

 Plaintiff is a religious proselytizer who conducts an outreach ministry during the summer months on the Long Beach boardwalk. His utilization of amplified sound in connection with his preaching of the Christian Gospel has generated much publicity in both Long Beach and the local media. See, e.g., Barbara Chai, Sound and Fury, Loud beach preacher attacked, arrested, Newsday, July 8, 1996; Evelyn Nieves, At Boardwalk, Battle Stations Over Decibels, N.Y. Times, Aug. 4, 1996, at 33.

 This is the second action in which the present parties have appeared before this Court. On July 14, 1995, after a non-jury trial, this Court held that certain of the City's permit provisions and procedures set forth in both the noise code and park regulations sections of the Long Beach Code of Regulations, with which the City had required Plaintiff to comply in order to conduct his religious activities on the boardwalk, were facially invalid, as well as unconstitutionally applied to him. See Opinions, Findings of Fact and Conclusions of Law, dated July 15, 1995, Orenstein, M.J., attached as Toback Aff. Ex. 1. In reaching its decision, the Court found the Long Beach boardwalk to be a traditional public forum. Id. at 9. Plaintiff, however, withdrew his challenge to those sections of the noise code that provided certain maximum sound levels. Id. at 6 n.2.

 On May 21, 1996, the City amended Chapter 16 of the noise code. Eaton Aff. P 5; "Chapter 16 - Noise," attached as Eaton Aff. Ex. B; Toback Aff. Ex. 2. Newly-enacted Section 16-7 provides that "no person shall cause, . . . or permit the operation of any source of sound . . . in such a manner as to create a sound level that exceeds the particular continuous sound level limits set forth in table 1." Table 1 fixes a maximum permissible continuous sound level of 65 decibels ("dBA") at Ocean Beach Park, which encompasses the Long Beach boardwalk.

 On June 9, 1996, the City issued Plaintiff two summonses for violations of Section 16 of the Long Beach noise ordinance; the City issued Plaintiff a third summons on June 16, 1996. On June 19, 1996, Plaintiff appeared in Long Beach City Court to answer the summonses. At that time, the prosecution superseded the summonses with informations; the Court adjourned Plaintiff's arraignment for one week to enable Plaintiff to obtain counsel. Def.'s Mem. of Law in Support of Younger Abstention Ex. 1. On June 26, 1996, Plaintiff appeared with counsel for arraignment on the three informations. Plaintiff pleaded not guilty and the court, at counsel's request, granted Plaintiff forty-five days for the purpose of serving motions. The matter was adjourned to August 13, 1996.

 On July 4, 1996, Plaintiff returned to the Long Beach boardwalk with a sound amplification system. The City served him with a summons for exceeding 65 dBA. On July 5, 1996, the City issued five summonses to Plaintiff for similar conduct. The sound was measured at various places as it projected from the boardwalk and at different times from 12:50 p.m. to 3:03 p.m. On July 6, 1996, Plaintiff again returned to the boardwalk with a sound amplification system. This time, Plaintiff was arrested and charged with disorderly conduct, pursuant to N.Y. Penal Law Section 240.20, subd. 2. *fn1" The following day, the City served Plaintiff with another two summonses for violation of Section 16 of the Long Beach noise ordinance, and again charged him with disorderly conduct under the New York State Penal Law.

 Meanwhile, on July 5, 1996, Plaintiff filed his complaint in this action, challenging the constitutionality of that portion of the noise code which prohibits excessive noise, including the 65 dBA sound level limit set for Ocean Beach Park. He asserts that the noise code is unconstitutional on its face and as applied to him. Plaintiff seeks, inter alia, an injunction permanently enjoining the City from enforcing the noise ordinance, a judgment declaring the challenged sections--Sections 16-6K, 16-7 and 16-11I--to be unconstitutional under the First and Fourteenth Amendments to the United States Constitution, and nominal damages in the amount of $ 10.00.

 The City opposes the application for a preliminary injunction and urges this court to abstain from hearing the instant case.

 DISCUSSION

 I. Requirements for a Younger Abstention

 In Younger v. Harris, 401 U.S. 37, 44, 53-54, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), the United States Supreme Court held that, absent extraordinary circumstances, principles of federalism and judicial comity require federal district courts to abstain from enjoining pending state criminal proceedings. See also Rizzo v. Goode, 423 U.S. 362, 379-80, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976)("'[A] major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this court has recognized . . . .'" (quoting O'Shea v. Littleton, 414 U.S. 488, 502, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974))). In addition to preventing disruption of state court proceedings, the Younger doctrine is designed to protect the vital role of the state courts in the enforcement of federal law. In a companion case to Younger, the High Court extended the abstention principle to actions seeking declaratory relief. Samuels v. Mackell, 401 U.S. 66, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971). " Younger abstention is appropriate when: 1) there is an ongoing state proceeding; 2) an important state interest is implicated; and 3) the plaintiff has an avenue open for review of constitutional claims in the state court." Hansel v. Town Court for Town of Springfield, New York, 56 F.3d 391, 393 (2d Cir.), cert. denied, 133 L. Ed. 2d 496, 116 S. Ct. 572 (1995); see Doe v. Connecticut Dept. Of Health Servs., 75 F.3d 81, 85 (2d Cir. 1996).

 The three requirements of a Younger abstention set forth in Hansel clearly are met in the instant case. First, Plaintiff's criminal prosecution was proceeding when he commenced this action. As a result of his alleged activities on the Long Beach boardwalk on June 9 and June 16, 1996, Plaintiff was arraigned on three charges; informations were filed and he pleaded not guilty. Cf. Agriesti v. MGM Grand Hotels, Inc., 53 F.3d 1000, 1001-02 (9th Cir. 1995)(finding no ongoing judicial proceeding where district attorney's office never filed citations in court; under Nevada Law, "a misdemeanor complaint issues when the misdemeanor citation is filed with a Court of competent jurisdiction").

 As to the second requirement, it is beyond cavil that the City has an important interest at stake simply by virtue of the ongoing criminal prosecution. See Hansel, 56 F.3d at 393; Davis v. Lansing, 851 F.2d 72, 76 (2d Cir. 1988)("There is no question that [an] ongoing prosecution implicates important state interests: ...


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