United States District Court, N.D. New York
March 12, 2004.
UNIQUE MEDIUM, LLC d/b/a/ FANTASY ISLAND, JONATHAN D. MILKS and FREDERICK LEONARDI, Plaintiffs,
TOWN OF PERTH, Defendant
The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District
MEMORANDUM-DECISION AND ORDER
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.
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"
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.
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
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
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 Defendant's law. Further, Plaintiffs
contend that, even if they wished to apply for an additional permit, an
application form does not exist.
Plaintiffs' reliance on Nakatomi Investments is misplaced, as
that case concerned a municipal ordinance that specifically required
adult businesses to obtain special permits before opening. See
Nakatomi Invs., 949 F. Supp. at 990. As Defendant points out, its
fire code is not a prior restraint or permitting scheme. The law does not
target speech or expressive activity, and it does not give any official
"unbridled discretion," which is the hallmark of an unconstitutional
prior restraint. See Beal v. Stern, 184 F.3d 117, 124 (2d Cir.
1999). For instance, the law requires the inspector to approve or reject
an application for a certificate of occupancy within thirty days from the
date of submission. See Town of Perth Local Law # 1-1985 §
4, Attached as Exhibit "B"
to Defendant's Memorandum Opposing Preliminary Injunction. The
statute requires that the inspector give an applicant written reasons for
a denial and provides specific and limited grounds for revocation of a
permit. See id. The law also establishes an appeal process,
which allows an aggrieved party to appeal to a regional board. See
id. at § 10. Thus, Defendant's ordinance, on its face, does not
impermissibly infringe upon Plaintiffs' First Amendment rights. As a
result, Plaintiffs' challenge is more properly characterized as an
as-applied challenge, and Plaintiffs must therefore demonstrate actual or
imminent injury to establish standing.
Plaintiffs admit that they have, as of yet, suffered no injury in fact.
Fantasy Island remains open and operating. Defendant has not attempted to
enforce any fines against Plaintiffs, and the state court has stayed the
criminal action pending Plaintiffs' application for a new permit or a
decision from this Court. Therefore, the Court concludes that Plaintiffs'
free speech claims are not yet ripe for adjudication.
2. Takings Claim
A takings claim is ripe when a government entity responsible for
enforcing the regulations at issue has rendered a final decision and the
plaintiff has sought compensation if the state provides a ""`reasonable,
certain and adequate provision for obtaining compensation.'"" Santini
v. Conn. Hazardous Waste Mgmt. Serv., 342 F.3d 118, 124 (2d Cir.
2003) (quotation omitted).
Once again citing Nakatomi Invs. v. City of Schenectady,
Plaintiffs contend that they need not exhaust their administrative
remedies in order to bring the takings claims. See 949 F. Supp. 988
. However, Plaintiffs admitted that they have not attempted to obtain
an assembly permit from Inspector Howland even by informally requesting
one. As a result, Plaintiffs have no final
decision from Defendant. Where a plaintiff has not attempted to
obtain required permits before bringing a takings claim in federal court,
the plaintiff's claim is not ripe for adjudication. See, e.g., Dix v.
City of N.Y., No. 01 CIV. 6186, 2002 WL 31175251, *7 (S.D.N.Y. Sept.
As discussed above, Plaintiffs' establishment remains open for business
and has never closed; Defendant has not attempted to collect any fine.
Moreover, even accepting Plaintiffs' assertion that no application form
exists that would permit them to operate legally, Plaintiffs have not
pursued any of the reasonable and certain state remedies open to them,
such as an appeal to the Zoning Board of Appeals or an Article 78
proceeding. Accordingly, the Court concludes that Plaintiff's takings
claim is not ripe for adjudication.*fn3
After carefully considering the file in this matter and the parties'
submissions, as well as the applicable law, and for the reasons stated
herein, the Court hereby
ORDERS that Plaintiffs' motion for a preliminary injunction
is DENIED; and the Court further
ORDERS that Defendant's motion for summary judgment is
DENIED; and the Court further
ORDERS that Defendant's motion to dismiss the complaint on
the ground that the claims are not ripe is GRANTED without
prejudice; and the Court further
ORDERS that the Clerk of the Court enter judgment in favor of
Defendant and close this case.
IT IS SO ORDERED.