United States District Court, Southern District of New York
November 21, 2002
M.J. ENTERTAINMENT ENTERPRISES, INC., D/B/A THE STARLIGHT PLAINTIFF,
THE CITY OF MOUNT VERNON, NEW YORK, A MUNICIPAL CORPORATION; AND SORAYA BEN-HABIB, AS FIRST DEPUTY COMMISSIONER OF THE DEPARTMENT OF BUILDINGS OF THE CITY OF MOUNT VERNON DEFENDANTS.
The opinion of the court was delivered by: McMAHON, United States District Judge
MEMORANDUM DECISION PARTIALLY
GRANTING DEFENDANTS' MOTION TO
DISMISS FOR LACK OF STANDING
Plaintiff M.J. Entertainment Enterprises, Inc. ("M.J. Entertainment") has
sued the City of Mount Vernon and Soraya Ben-Habib, Mount Vernon's First
Deputy Commissioner of the Department of Buildings (collectively "Mount
Vernon"), claiming two separate violations of the First Amendment. Mount
Vernon has moved to dismiss both claims for lack of standing. I rule that
M.J. Entertainment may proceed to prosecute Count I, but I dismiss Count
A. The Dispute
M.J. Entertainment runs a bar called The Starlight in Mount Vernon, New
York. M.J. Entertainment has reconsidered its business plan for The
Starlight and would like to offer a new type of entertainment at the bar
— topless dancing. The Starlight is located, however, in an area
where the Mount Vernon Zoning Code prohibits such a land use.
B. The Mount Vernon Zoning Code
The Mount Vernon Zoning Code establishes six types of non-residential
zoning districts: (1) Neighborhood Business, (2) Office Business, (3)
Downtown Business, (4) Commercial Business ("CB"), (5) Landscaped
Industrial, and (6) Industry ("I"). Mount Vernon Code § 267-18. The
Code lists for each zoning district a set of (a) "permitted principal
uses," and (b) "uses
allowed by special permit."*fn1 A land use is
categorically allowed in any district in which it is a "permitted
principal use." In contrast, the Mount Vernon Planning Board ("Board")
must approve "special permit uses" on a case-by-case basis. See Mount
Vernon Code §§ 267-24. Those seeking approval for a special permit use
must submit an application to the Board, and the Board must then hold a
public hearing. Id. at § 267-26. In determining whether to approve a
special permit use, the Board must apply certain substantive standards,
such as whether "[o]perations in connection with any special permit use
will not be more objectionable to nearby property by reason of noise,
traffic, fumes, vibration or other such characteristics than would be the
operations of permitted uses not requiring a special permit." Id. at
In addition, the Code requires the Board to apply more particularized
standards to certain "specific special permit uses." See Mount Vernon
Code § 267-28. Land uses involving radio towers must comply with
specific requirements, for example, as must land uses involving "motor
vehicle service stations." Running a bar where women dance topless is
also a "specific special permit use." Id. at § 267-28I.
C. The Starlight's Zoning
The Starlight is a "bar" located in the "CB" Zoning District.*fn2
Running a bar is a "principal permitted use" in the "CB" Zoning District.
The Code does not list "adult live entertainment business" — defined
in relevant part as a "bar . . . that features live performances . . . that
are characterized by the exposure of specified areas or specified sexual
activities whether or not the live performances are considered incidental
to the primary operations of the business," Mount Vernon Code § 267-4
— as either a "permitted principal use" or a "special permit use" in
the "CB" Zoning District. This omission effectively prohibits plaintiff
from operating a topless bar at The Starlight's present location.
The Code only lists "adult live entertainment business" as a "special
permit use" in the "I" Zoning District. In addition, "adult live
entertainment business" is a "specific special permit use" under Section
267-28I, and is therefore subject to particular conditions. Such
establishments may not exceed 5,000 square feet of floor space, for
example, or be located within 500 feet of any place of worship. Mount
Vernon Code § 267-28I(7). In addition, topless bars are prohibited
from "conducting performances or creating viewing areas that are
conducted out-of-doors and/or are wholly or partially visible from any
public right-of-way." Id. at § 267-28I(4). Plaintiff alleges that
there is no place within the "I" Zoning District that does not run afoul
of some said particular condition, so that the law effectively bans
topless dancing anywhere in the city.
M.J. Entertainment must satisfy three requirements to establish standing
Article III. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). First, it must demonstrate
that it has "suffered an `injury in fact' that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical."
Id. Second, it must establish "causation — a `fairly . . . trace
[able]' connection between the alleged injury in fact and the alleged
conduct of the defendant." Vermont Agency of Natural Res. v. U.S. ex rel.
Stevens, 529 U.S. 765, 771 (2000). Third, it must demonstrate that it "is
likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision." Laidlaw Envtl. Servs., 528 U.S. at 180-81. "These
requirements together constitute the `irreducible constitutional minimum'
of standing, which is an `essential and unchanging part' of Article III's
case-or-controversy requirement." Vermont Agency of Natural Resources, 529
U.S. at 771 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60
In addition to this constitutional minimum, standing also encompasses
certain4 "prudential" requirements that the Supreme Court has developed
"on its own accord and applied in a more discretionary fashion as rules of
judicial `self-restraint' further to protect, to the extent necessary under
the circumstances, the purpose of Article III." Sullivan v. Syracuse Hous.
Auth., 962 F.2d 1101, 1106 2d 1992). "Pursuant to the doctrine of
prudential standing, a court must ask whether a plaintiff's claim rests on
the legal rights of a third party, asserts only a generalized grievance, or
asserts a claim that falls outside the zone of interests protected by the
legal provision invoked." Center for Reproductive Law and Policy v. Bush,
304 F.3d 183, 196 (2d Cir. 2002).
B. Plaintiff Has Standing to Prosecute Count I
1. The Substantive Claim
In Count I, M.J. Entertainment argues that the Mount Vernon Zoning Code
is unconstitutional because it limits adult entertainment to such an extent
that it violates the First Amendment. M.J. Entertainment's argument is, in
essence, that the limitation of topless dancing to the "I" Zoning
District, together with the "specific special permit use" restrictions that
apply to topless dancing land uses, amounts to a total ban on adult
entertainment uses in Mount Vernon. Put slightly differently, plaintiff
argues that the "I" Zoning District is already a small portion of Mount
Vernon, and further argues that there is no location within the "I" Zoning
District that can also meet the Zoning Code's other requirements —
for example, that it be located further than 500 feet from the "property
line of any residential district, parks, schools, places of worship,
community centers, youth services, day-care centers, nursery schools or
museums within the city or in any adjoining municipality." Mount Vernon
Code § 267-28I(1)(7).
These restrictions, M.J. Entertainment argues, run afoul of City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), which holds that
municipal ordinances designed to restrict the use of land for the
purposes of adult entertainment must "not unreasonably limit alternative
avenues of communication." Id. at 47. The determination whether
reasonable alternative avenues of communication exist turns on "the
physical and legal availability of alternative sites within the
municipality's borders and whether those sites are part of an actual real
estate market." Hickerson v. City of New York, 146 F.3d 99, 104
(2d Cir. 1998) (quoting Stringfellow's of New York, Ltd. v. City of New
York, 91 N.Y.2d 382, 402, 694 N.E.2d 407, 417
2. Standing Analysis
M.J. Entertainment has standing to pursue its claim under Count I.
First, if its allegations are true, it has suffered an "injury in fact."
It is unable to offer topless dancing as entertainment at its business
establishment and it alleges that it cannot relocate to another area
within the municipality where it can do so.*fn3 Second, M.J.
Entertainment's injury is traceable to the challenged action of Mount
Vernon — it cannot run a topless bar at its current location or
relocate to another location within Mount Vernon because of the
municipality's Zoning Code.
Redressability is the most tentatively established of the three
standing requirements. M.J. Entertainment suggests that should this Court
find in its favor, it will be allowed to offer topless dancing at The
Starlight. Were this true, of course, redressability would be clear. But
a finding that the Mount Vernon Zoning Code unreasonably limits
alternative avenues of communication would not necessarily give M.J.
Entertainment the right to offer topless dancing at The Starlight. Mount
Vernon could amend its Zoning Code, for example, to allow topless dancing
everywhere in the city other than the 500 foot radius around The
Starlight. Whether or not such a course of action would run afoul of some
other law, it certainly would provide for "alternative avenues of
Nonetheless, a decision in M.J. Entertainment's favor would redress its
injury. If this Court were to find that the Mount Vernon Zoning Code does
not provide for alternative avenues of communication, Mount Vernon would
have to amend its Zoning Code to do just that — provide for
alternative avenues of communication. And once it did so, M.J.
Entertainment's injury would necessarily be redressed in one of two
ways. First, in providing for alternative avenues of communication, Mount
Vernon might allow topless dancing in a portion of the city that includes
The Starlight's present location. Second, Mount Vernon might allow
topless dancing in a portion of the city that did not include The
Starlight's present location, but to which The Starlight might relocate.
Plaintiff thus has standing to mount a challenge to the constitutionality
of Mount Vernon's Zoning Code under City of Renton.
C. Plaintiff Lacks Standing to Prosecute Count II
1. The Substantive Claim In Count II, M.J. Entertainment challenges the
"special permit use" requirements of 7
above, that provision requires, among
other things, that (1) a party seeking a special use permit submit an
application to the Board, (2) the Board hold a hearing, and (3) the Board
apply certain substantive standards in deciding whether to accept or
reject the application. M.J. Entertainment argues that Section 267-24
violates the First Amendment because it fails to comply with the
safeguards that apply to the licensing of speech. More specifically, "a
law subjecting the exercise of First Amendment freedoms to the prior
restraint of a license, without narrow, objective, and definite standards
to guide the licensing authority, is unconstitutional." Shuttlesworth v.
City of Birmingham, 394 U.S. 147
, 150-51 (1969), quoted in Charette v.
Town of Oyster Bay, 159 F.3d 749
, 753 (2d Cir. 1998); see also FW/PBS,
Inc. v. City of Dallas, 493 U.S. 215
(1990) (finding Dallas's
adult-business licensing scheme to be an unlawful prior restraint).
2. Standing Analysis
M.J. Enterprises does not have standing to prosecute Count II. It fails
to satisfy two of Article III's three requirements — causation and
redressability. M.J. Entertainment's injury in fact — its inability
to open a bar at its present location or find a site to which it can
relocate — cannot fairly be traced to the procedures required to
obtain a special use permit. First, those procedures did not cause M.J.
Entertainment to be unable to open a topless bar at its present location
— those procedures do not apply to the "CB" Zoning District where
The Starlight is located. Second, M.J. Entertainment admits that it is
the city's failure to provide alternative avenues of communication that
has prevented it from relocating. Any argument that its inability to
relocate is due to the "chilling effect" of the special use permit
procedures is too attenuated to satisfy Article III's causation
requirement. And a ruling by this Court invalidating the "special permit
use" provisions of the Zoning Code would not redress plaintiff's injury:
Plaintiff will neither be able to open a topless bar nor relocate, due to
the alleged lack of alternative avenues of communication that are the
subject of Count I.
M.J. Entertainment argues in its motion papers that it has standing under
Count II because, if the Court finds in its favor on Count I, it will
then be subject to the "special permit use" requirements of Section
267-24. In other words, plaintiff claims its standing is contingent on a
finding that the Mount Vernon zoning scheme fails to provide alternative
avenues of communication.
Even were it true that M.J. Entertainment would be eligible to apply for
a special permit automatically if it prevails on Count I — a
proposition that I do not readily accept — this argument fails. A
plaintiff must establish standing for each separate claim asserted. See
Bowen v. First Family Financial Servs., Inc., 233 F.3d 1331, 1339 (10th
Cir. 2000); Comer v. Cisneros, 37 F.3d 775, 788 (2d Cir. 1994); 13
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 3531 (2d ed. Supp. 2002). ("A party with standing to advance one
claim may lack standing to advance other claims."). M.J. Entertainment's
attempt to forward the goal of judicial economy, commendable as it may
be, cannot contravene Article III.*fn5
At oral arguments, M.J. Entertainment suggested that it has standing to
pursue its Count II claim because (1) it makes a facial challenge to Mount
Vernon's licensing scheme; and (2) standing requirements are less
stringent in the context of facial challenges to overbroad statutes. To
support its position, plaintiff directed the Court's attention to CR of
Rialto, Inc. v. City of Rialto, 975 F. Supp. 1254 (C.D.Cal. 1997). In
that case, CR of Rialto argued that the city's zoning ordinance, which
required that an applicant for an adult business obtain a "conditional
development permit," violated the First Amendment because it constituted
an unlawful prior restraint under City of Lakewood v. Plain Dealer Pub.
Co., 486 U.S. 750 (1988).*fn6 The court found that plaintiff had
standing to challenge the "conditional development permit" requirement
even though it, like M.J. Entertainment, owned an establishment that was
located in a zone where it could not even apply for such a permit. The
court admitted that CR of Rialto's claim that it had standing "based on a
hypothetical desire to relocate elsewhere in the City is somewhat
tenuous." Id. at 1259. The court ruled, however, that CR of Rialto "does
have standing on the basis of its assertion that it is currently being
chilled as to its First Amendment rights to free expression on its
efforts to seek alternative sites to [its present] premises because of
the alleged unconstitutionality of the City's regulation of adult
The Supreme Court has held that general standing requirements are to be
relaxed in the context of First Amendment overbreadth claims. See Forsyth
County v. Nationalist Movement, 505 U.S. 123, 129-30 (1992); 13 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
3531.9 (2d ed. 1987 & Supp. 2002). A party need not have applied for
a license, for example, in order to mount a First Amendment facial
challenge to a licensing scheme. See City of Lakewood, 486 U.S. at
755-56. Similarly, a party may, in certain circumstances, assert the
First Amendment rights of third parties in the context of overbreadth
challenges. See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). These
"exceptions" to prudential standing, however, do not eviscerate Article
III's requirements; neither do they provide a basis to sustain M.J.
First, while a party can challenge a licensing scheme without having
applied for a license, that party must be subject to the law that
establishes the licensing scheme. As the Supreme Court explained in City
of Lakewood, "when a licensing statute allegedly vests unbridled
discretion in a government official over whether to permit or deny
expressive activity, one who is subject to the law may challenge it
facially without the necessity of first applying for, and being denied, a
license." 486 U.S. at 755 (emphasis added). Mount Vernon's "special
permit use" licensing scheme does not apply to M.J. Entertainment;
plaintiff is not "subject to" Mount Vernon's licensing scheme. Only those
who seek to establish an adult entertainment business in the "I" Zoning
District may apply for such a license.
Second, M.J. Entertainment may not assert an overbreadth claim on behalf
of third parties. Under that exception to general standing rules, a party
may bring a facial challenge to a statute as overbroad, even if the
statute, as applied to that party, was constitutional. See, e.g., New York
v. Ferber, 458 U.S. 747, 768-69 (1982) ("[W]e have allowed persons to
attack overly broad statutes even though the conduct of the person making
the attack is clearly unprotected and could be proscribed by a law drawn
with the requisite specificity."); Young v. American Mini Theaters, Inc.,
427 U.S. 50, 59-60 (1976). Here, Section 267-24 of the Zoning Code does not
in 11 any way apply to M.J. Entertainment. The Starlight is located in the
"CB" Zoning District, where one cannot apply for a "special use permit" to
operate an adult business.
All this goes to saying that the First Amendment "exceptions" to
prudential standing rules do not relieve M.J. Entertainment of its
obligation to satisfy Article III's constitutionally-mandated minimum
standing requirements. Plaintiff fails to satisfy two of those three
requirements — causation and redressability. For these reasons, I
decline to follow the CR of Rialto court's holding.
The facts of this case are far more similar to a case cited in CR of
Rialto, S&G News, Inc. v. City of Southgate, 638 F. Supp. 1060 (E.D.Mich.
1986), and I agree with that decision. In S&G News, the City of Southgate's
zoning ordinance provided that adult uses: (1) were only allowed in the C-3
zoning district, (2) had to comply with certain locational requirements
(e.g., could not be within 500 feet of a residential building), and (3) had
to be specially applied for and approved. Id. at 1061. Plaintiff wanted to
open an adult use establishment but was located in the C-2 zoning district,
where adult uses were categorically prohibited. The court entertained
plaintiff's claim that the city's zoning ordinance did not provide
alternative avenues of communication, but concluded that plaintiff lacked
standing to challenge the special application and approval procedures that
applied to those who wanted to establish an adult use in the C-3 zoning
district. Id. at 1066. The court did not address whether plaintiff lacked
Article III standing, but rather decided that plaintiff did not fall within
the First Amendment "exceptions" to prudential standing requirements. Id.
Like the court in S&G News, I find that M.J. Entertainment may proceed
with its claim that the Mount Vernon Zoning Code does not provide
alternative avenues of communication, but I must dismiss Count II for lack
For the reasons stated above, defendants' motion to dismiss is granted as
to Count II and denied as to Count I.
This is the decision and order of the Court.