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M.J. ENTERTAINMENT ENTERPRISES v. CITY OF MOUNT VERNON

November 21, 2002

M.J. ENTERTAINMENT ENTERPRISES, INC., D/B/A THE STARLIGHT PLAINTIFF,
V.
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 II.

BACKGROUND

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 § 267-27(C).

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.

DISCUSSION

A. Standing

M.J. Entertainment must satisfy three requirements to establish standing under 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 ...


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