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March 12, 2004.

TOWN OF PERTH, Defendant

The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District



  Plaintiffs' complaint, pursuant to 42 U.S.C. § 1983 and 1985, alleges violation of the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. Page 2 Presently before the Court are Plaintiffs' motion for a preliminary injunction and Defendant's motion for dismissal of the complaint.


  Plaintiff Unique Medium, LLC d/b/a Fantasy Island and its members, Plaintiffs Milks and Leonardi, own and operate an adult business ("Fantasy Island") in the Town of Perth, New York.

  Plaintiffs allege that prior to opening Fantasy Island in November, 2002, they examined local zoning ordinances and determined that Defendant had no specific restrictions regarding adult uses. According to Plaintiffs, Defendant required only that anyone opening a retail or retail service establishment obtain a certificate of occupancy for the premises. Plaintiffs maintain that they entered into a lease and received a certificate of occupancy from Defendant's Code Enforcement Officer Robert Howland ("Inspector Rowland") in November, 2002. According to Plaintiffs, Defendant did not have a specific form or procedure for granting the certificate of occupancy; rather, Inspector Howland dealt informally with applicants over the phone and typically requested a written statement of use for the premises. Plaintiffs submitted a written statement that they planned to open "a `retail business' providing lingerie and `all related accessories.'" See Plaintiffs' Memorandum of Law in Support of a Preliminary Injunction at 1. Inspector Holland then granted the certificate of occupancy

  Upon receiving the certificate, Plaintiffs opened their business, which consists of the sale and rental of adult movies, lingerie and toys as well as small rooms for private lingerie modeling sessions. Plaintiffs thereafter received a letter from Defendant revoking Fantasy Island's certificate of occupancy on the grounds that the certificate had been granted for a "retail" Page 3 classification while Fantasy Island was actually subject to an "assembly" classification because of the private lingerie modeling rooms.*fn1 Plaintiffs allege that since the business opened, Defendant has engaged in a scheme to shut it down and deprive Plaintiffs of "the opportunity and ability to conduct lawful business activities and to engage in constitutionally protected speech and conduct." See Plaintiffs' Complaint at ¶ 20.

  Plaintiffs filed a complaint in this Court on December 10, 2002, seeking a preliminary injunction as well as monetary damages. Defendant moved for dismissal of the complaint on the grounds that Plaintiffs' claims are not ripe. In the alternative, Defendant moved for summary judgment as to all of Plaintiffs' claims.


 A. Standing

  1. First Amendment Claim

  The ripeness doctrine prevents a federal court from considering a case in which the dispute has not yet "matured to a point that warrants decision." Tri-State Video Corp. v. Town of Stephentown, No. 97-CV-965, 1998 U.S. Dist. LEXIS 1899, *7 (N.D.N.Y. Feb. 13, 1998) (citing Auerbach v. Board of Educ., 136 F.3d 104, 1998 U.S. App. LEXIS 741, 1998 WL 45017 (2d Cir. 1998)).

  In the context of facial First Amendment challenges, courts apply a somewhat relaxed standard for establishing the ripeness of a claim. See Dougherty v. Town of N. Hempstead Ed. of Page 4 Zoning App., 282 F.2d 83, 90 (2d Cir. 2002) (citations omitted). Under this relaxed standard, a plaintiff alleging an unconstitutional licensing scheme need not apply for a license before challenging the scheme. See Metropolis of Conn. LLC v. Fleming, No. 3:01 CV 670, 2002 U.S. Dist. LEXIS 11579, *11-*12 (D. Conn. June 18, 2002) (quotation omitted). With regard to as-applied First Amendment challenges, however, a plaintiff must suffer an actual or imminent injury from the allegedly unconstitutional provision. See Marchi v. Ed. of Coop. Educ. Servs., 173 F.3d 469, 478-79 (2d Cir. 1999) (citation omitted).

  Plaintiffs argue that Defendant is impermissibly using its building and fire safety code to proscribe adult uses. Citing Nakatomi Invs., Inc. v. City of Schenectady, Plaintiffs contend that their claim is ripe because Defendant has attempted to enforce a prior restraint on their First Amendment rights by requiring them to obtain an assembly permit. See 949 F. Supp. 988 (N.D.N.Y. 1997). Therefore, they contend that their injury has already occurred and that they need not apply for further permits before challenging ...

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