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United States District Court, N.D. New York

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 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" Page 5 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 Page 6 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. 30, 2002).*fn2

  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 Page 7

  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.


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