United States District Court, E. D. New York.September 10, 1974381 F.Supp. 859 (Approx. 9 pages)
381 F.Supp. 859
United States District Court, E. D. New York.
SALEM INN, INC., and M & L Rest, Inc., Plaintiffs,
v.
Louis J. FRANK, Individually and as Police Commissioner of Nassau County, et al., Defendants.
No. 74-C-1108.
Sept. 10, 1974.
Attorneys and Law Firms
*860 Kassner & Detsky, New York City, for plaintiffs; Herbert S. Kassner, New York City, of counsel.
Joseph Jaspan, County Atty. Nassau County, Mineola, N.Y., for defendant Louis J. Frank.
Joseph H. Darago and Joseph A. Guarino, Manhasset, N.Y., for defendant Frank Doran.
Ressa & Nappi, Port Washington, N.Y., for defendant Howard Einhorn; Ralph A. Nappi, Port Washington, N.Y., of counsel.
Opinion
BARTELS, District Judge.
This is the second attempt of the Town of North Hempstead by ordinance to prevent ‘topless' dancing within its boundaries. Plaintiffs, owners of two bars in North Hempstead featuring topless dancing, bring this action pursuant to 28 U.S.C. § 2201, seeking a preliminary injunction, a permanent injunction and a declaratory judgment against the enforcement of Chapter 11 of the Code *861 of the Town of North Hempstead1 charging a violation of their civil rights under 42 U.S.C. § 1983. The ordinance prohibits owners or operators of cabarets, bars, lounges, dance halls, discotheques, restaurants, or coffee shops from permitting any waitress, barmaid, female entertainer or any other female person in the employ thereof to appear before the public with uncovered breasts, and likewise forbids any female person to appear with uncovered breasts in any of the said places. A fine of up to $500 and imprisonment of up to one year are provided for each offense. Unlike the ordinance enjoined in September, 1973, Salem Inn, Inc. v. Frank, 364 F.Supp. 478 (E.D.N.Y.1973), affirmed, 501 F.2d 18 (2d Cir., 1974), (‘Salem Inn I’), this ordinance applies only to the above enumerated places and not to ‘any other public place.’ In all other relevant respects the ordinance is identical.
*862 After the passage of the new ordinance on July 23, 1974, arrests were made of the owner and two of the dancers at the Interlude Lounge, a plaintiff in the earlier action. Upon hearing of these arrests plaintiffs Salem Inn, Inc. and M & L Rest, Inc. immediately terminated topless dancing because of their fear of arrest and instituted this action for an injunction and declaratory judgment on the grounds that the ordinance violates the First Amendment by placing an overbroad restriction on constitutionally protected speech and the Equal Protection clause of the Fourteenth Amendment by restricting its application to certain enumerated places.
In support of the ordinance the defendants assert that the commercial exploitation of nudity existing in the enumerated establishments is ‘adverse to the public peace, morals and good order.’ Ch. 11, Code of the Town of North Hempstead. Prior to the passage of the ordinance, the Town held a public hearing which was replete with complaints of noise, litter, and offensive conduct by patrons of ‘topless' bars owned by plaintiffs and others. Complaints were voiced about the operation of the establishments in the late afternoon when schoolchildren must walk past and late at night when noise disturbs the neighbors. It was admitted that the dancing in the bars could not be seen from the street although children on occasion attempted to look through the windows. Objections were also raised as to the large percentage of customers from outside the Town and the fact that the reputation of the Town was being damaged by the presence of the bars. There was no testimony that any of the conditions arising from the entertainment itself caused a type of ‘Bacchanalian revelries' described in California v. LaRue, supra, e.g., sexual contact between entertainers and customers, prostitution, and rape.
The government has an interest and a right under its police power to regulate and in certain circumstances to prohibit conduct involving public nudity. See United States v. Hymans, 463 F.2d 615 (10th Cir. 1972). But when this *864 conduct also contains a speech element, thus affecting First Amendment rights, the burden rests upon the government to demonstrate that the regulations or prohibitions are necessary to promote a compelling governmental interest, such as protection of public health, safety, peace and morals. In addition it should be clear that there is no reasonable way to achieve these goals with a lesser burden on this constitutionally protected activity. O'Brien, supra; O'Neill v. Dent, 364 F.Supp. 565 (E.D.N.Y.1973). The challenged ordinance plainly covers a field much wider than is essential to further the Town's interest in dealing with the nuisance conditions complained of at the public hearing. Instead of dealing with the specific conditions, the ordinance focuses on an activity which can contain protected expression and which has not been shown to be the source of the problem. Similar problems of crowds, noise and litter are frequently presented by many forms of public entertainment such as sporting events, rock concerts, political rallies, etc., and it would be equally unreasonable to ban such events in order to correct problems which can be best attacked through regulation of zoning, parking, hours of operation, etc. Cf. Taylor v. City of Chesapeake, 312 F.Supp. 713 (E.D.Va.1970).
III
The application of the ordinance only to bars, lounges, coffee shops, discotheques, etc., and not to theaters, opera houses and concert halls is also challenged on equal protection grounds. Since the location classification here involves the exercise of fundamental rights protected by the First Amendment, the classification must again serve a ‘compelling state interest’ to withstand such an attack. Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); O'Neill v. Dent, supra. While restrictions applied only to places serving alcoholic beverages have been upheld in certain circumstances involving the Twenty-First Amendment, California v. LaRue, supra; Paladino v. City of Omaha, 471 F.2d 812 (8th Cir. 1972); Salem v. Liquor Control Comm., 298 N.E.2d 138, 34 Ohio St.2d 244 (1973), the ordinance here applies its restrictions to coffee shops, restaurants and even dance halls and discotheques. It is difficult to determine what compelling state interest could be served by an ordinance which would bar a production of ‘Hair’ at a cabaret and allow nude dancing in a burlesque theater.
Thus, we are constrained to hold once again, and we might add reluctantly, that the attempt of the Town of North Hempstead to prohibit ‘topless' dancing through Chapter 11 of its Code is on its face violative of plaintiffs' rights under the First Amendment since it includes within its prohibition constitutionally protected expression and also that it violates their rights under the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs have demonstrated in the record that they will suffer a substantial loss of business by the enforcement of the ordinance and for this and the other reasons set out in Salem Inn I, supra, we find that federal intervention and injunctive relief are justified. See 414 Theater Corp. v. Murphy, supra, 499 F.2d at 1159-1160.
Therefore, it is ordered that pending the final determination of this action, the defendants are hereby enjoined from prosecuting the plaintiffs for any violation of Chapter 11 of the Code of the Town of North Hempstead or in any way interfering with their activities which may be prohibited by the text of said Chapter.
Chapter 11 of the Code of the Town of North Hempstead provides, in part:
‘SECTION 1.0 Legislative Purpose—
The Town Board of the Town of North Hempstead does hereby find that there exists in this Town an increasing trend toward nude and semi-nude acts, exhibitions and entertainment, and of undress by female employees of bars and restaurants where food or alcoholic beverages are sold to the public, and that such acts and such competitive commercial exploitation of nudity is adverse to the public peace, morals and good order; that it is in the best interest of the public safety and welfare of this Town to restrict such nudity and the commercial promotion and exploitation thereof in bars and restaurants where food or alcoholic beverages are sold, as hereinafter set forth.
The Town Board of the Town of North Hempstead further finds that it is solely within the powers of the State of New York as delegated to the State Liquor Authority to regulate and control the manufacture, sale and distribution within the State of alcoholic beverages, for the purpose of fostering and promoting temperance in their consumption and respect for an obedience to law; and that the same should be augmented not inconsistent with State power by local regulation of conduct of persons engaged in the sale to the public of food and drink and alcoholic beverages, and those persons who are in their employ.
It is, therefore, declared to be policy of the Town Board of the Town of North Hempstead that in order to preserve public peace and good order, and to safeguard the health, safety, welfare and morale within the unincorporated area of the Town of North Hempstead, it is necessary to regulate and control the conduct of owners and operators of cabarets, bars, lounges, dance halls, discotheques and places which serve food or alcoholic beverages so as to fix certain responsibilities and duties of persons owning, operating or controlling such establishments and all persons employed, whether for hire or not, in such establishments.
SECTION 3.0 Provisions—
3.1. It shall be unlawful for any person maintaining, owning or operating a cabaret, bar or lounge, dance hall, discotheque, restaurant or coffee shop within the Town of North Hempstead:
a. to suffer or permit any waitress, barmaid, female entertainer or other female person in the employ thereof who appears before or deals with the public in attendance therein to appear in such manner that the portion of her breast below the top of the areola is not covered with a fully opaque cover or that one or both breasts are wholly exposed to view.
b. to suffer or permit any person in the employ thereof who appears before or deals with the public in attendance therein to appear in such manner as to actually display or simulate the display of the pubic hair, anus, vulva or genitals.
b. It shall be unlawful for any person to appear in any cabaret, bar or lounge, dance hall, discotheque, restaurant or coffee shop within the Town of North Hempstead in such a manner as to actually display or simulate the display of the pubic hair, anus, vulva or genitals.
SECTION 9.0 Penalties—
Any person who shall violate any section of this local law shall be guilty of a misdemeanor punishable by a fine not exceeding $500.00 or imprisonment for a period not to exceed one year, or both. Each days continued violation shall constitute a separate violation.'