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June 4, 2002


The opinion of the court was delivered by: Frederick J. Scullin, Jr., Chief United States District Judge



Plaintiff commenced this action on May 14, 2001, pursuant to 42 U.S.C. § 1983, asserting that the City of Albany ("the City" or "Defendant") had violated her rights under the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution through the enactment of Ordinance 23.91.99 which amended § 375 of the City's Zoning Law. She seeks substantial compensatory damages, an order declaring Sections 375-7 and 375-101 unconstitutional on their face and as applied to her, an order enjoining the City from enforcing and implementing all of the laws, statutes, and/or ordinances complained of in her complaint and reasonable attorneys' fees and costs.

Presently before the Court is Plaintiff's motion for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. The Court heard oral argument in support of, and in opposition to, this motion on July 16, 2001, and reserved decision at that time. At Plaintiff's request, the Court permitted the parties to submit additional briefing on the issue of whether § 375-101 provides for a constitutionally sufficient number of alternative locations for adult entertainment establishments within the City. The following constitutes the Court's decision with respect to the pending motion.


Plaintiff also contends that the City's Zoning Law is a prior restraint because it effectively bans the adult entertainment business in the entire City and, therefore, violates the First Amendment. See Plaintiff's Memorandum of Law at 8. Furthermore, Plaintiff claims that § 375-101 is an unconstitutional taking of property. See id. at 9. Finally, Plaintiff asserts that § 375-7's inclusion of the term "go-go dancers" within its definition of adult entertainment is unconstitutionally vague and over-broad because it "categorically eliminate[s] all manner of dance without regard to character." See id. at 12.


A. Preliminary injunction standard

Plaintiff moves for a preliminary injunction on the ground that § 375-101 and § 375-7 are unconstitutional. To prevail on this motion, Plaintiff must demonstrate "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (citations omitted); Nakatomi Invs., Inc. v. City of Schenectady, 949 F. Supp. 988, 990 (N.D.N.Y. 1997). However, where a party seeks to stay a governmental action or regulatory scheme, the Second Circuit has held that the more rigorous "likelihood of success" standard applies. See Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989) (citations omitted).

The City does not dispute that it intends to enforce its ordinance against Plaintiff and, thus, concedes that irreparable harm has been established by virtue of the Second Circuit's holding that "`[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'" Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir. 1991) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976)); Nakatomi Invs., Inc., 949 F. Supp. at 991 (quotation and citation omitted). Thus, the sole remaining question is whether Plaintiff has established that she is likely to succeed on the merits of her claim that the ordinance infringes upon protected speech.

B. Section 375-101

Although § 375-101 restricts adult entertainment establishments to the City's M-1 Zoning Districts, such establishments are entitled to locate in those districts as of right subject to the following regulations: (1) they must be located at least 1,000 feet from a church or other place of religious worship, a school, a residential zoning district, a park, playground, or playing field; (2) they must be located at least 1,000 feet from another adult entertainment establishment; (3) no more than one adult entertainment establishment may be located on a zoning lot; and (4) they shall not exceed in total 10,000 square feet of floor area and cellar space not used for enclosed storage or mechanical equipment. See Section 375-101. Since § 375-101 does not ban adult entertainment businesses altogether, but merely restricts their location, it is therefore properly analyzed as a time, place, and manner regulation. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46 (1986) (citation omitted). According to Renton, time, place and manner regulations are constitutional only if they (1) are content neutral, (2) designed to serve a substantial governmental interest, and (3) do not unreasonably limit alternative avenues of expression. See id. at 46-54.

Therefore, the Court must first determine whether § 375-101 is content neutral or content based. If it is content based, then it is presumptively in violation of the First Amendment. See Carey v. Brown, 447 U.S. 455, 462-63 & n. 7 (1980). However, if ยง 375-101 is content neutral, it will be found constitutional so long as it is "designed to serve a substantial governmental interest and allows ...

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