98 Misc. 2d 67 | N.Y. City Crim. Ct. | 1979
OPINION OF THE COURT
In this consolidated motion, the above-captioned defendants move pursuant to CPL 170.30 (subd 1, par [a]) for an order dismissing the criminal complaints lodged against them, upon the ground that the statute which they have been charged with violating, is unconstitutional. In each case, either the corporate or individual defendant, has been charged by the Department of Consumer Affairs with violating section B3224.0 of the Administrative Code of the City of New York in that he operated a motion picture theatre without the required license. It is the contention of the defendants that the Administrative Code’s movie licensing provisions as set forth in section B32-24.0 et seq. constitute an unlawful prior restraint upon the First Amendment rights, and in addition that
At the outset, this court must determine whether the defendants have standing to attack the movie licensing statute. The traditional test for determining standing is whether there is a sufficient nexus between the status of the defendants and the deprivations allegedly flowing from the existence of the laws being challenged. The defendants herein have adequately alleged and shown that they will sustain a direct and immediate injury as a result of the enforcement of this statute.
In Burton v Municipal Ct. of Los Angeles Judicial Dist. (68 Cal 2d 684), the petitioners, who were charged with violating a criminal statute,
Turning to the merits of the case, the defendants ad
The second prong of defendants’ argument is that the statute, even assuming that it is lacking neither clarity nor precision, is void for overbreadth, that is, it offends the constitutional principle that "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” (Zwickler v Koota, 389 US 241, 250; NAACP v Alabama, 377 US 288, 307.) These parties claim on the one side the freedom of expression, guaranteed by the First Amendment, and on the other side the right to employ the sovereign power explicitly reserved to the State by the Tenth Amendment. However in order to avoid the excesses of administrative censorship, any legislation affecting the dissemination of ideas, must be scrutinized closely, in order to determine that the interferences allowed are only those appropriate. Moreover, this court fully recognizes that there is a strong presumption of constitutionality of a legislative enactment. (See People v Pagnotta, 25 NY2d 333, 337; People v Scatena, 404 NYS2d 655, 657; People v Gonzalez, 402 NYS2d 584, 587.) It is with these principles as a guide that this court will consider whether the movie licensing statute is facially overbroad.
Under section B32-26.0 (subd a, par 5) of the Administrative Code the Commissioner of Consumer Affairs may refuse to
"the applicant, licensee, its officers, principals, directors and stockholders owning more than ten per cent of the stock of the corporation have been convicted to [sic]:
"(A) any of the following offenses and there is a direct relationship between the offense and the conduct of a motion picture theatre:
"(i) an offense within article two hundred and [sic] the penal law relating to bribery involving public servants;
"(ii) a felony within article two hundred ten of the penal law relating to perjury;
"(iii) an offense within article two hundred thirty of the penal law relating to prostitution offenses;
"(iv) an offense within article two hundred forty-five of the penal law relating to offenses against public sensibilities;
"(v) an offense within section 260.20 of the penal law relating to unlawfully dealing with a child;
"(B) any other offense which is a felony under the laws of this state or a crime committed in violation of the laws of any other jurisdiction which if committed in this state would be a felony; "(C) any offense which is a misdemeanor involving the premises on or in which the licensed business is to be conducted”.
There is no doubt that New York City has a valid interest in the exercise of its police power to establish narrowly drawn standards in the granting of licenses for operating motion pictures, and that such standards may include consideration of the character of the applicant. (Matter of Small v Moss, 277 NY 501.) Similarly it is also settled that the distribution and showing of motion pictures is protected by the First Amendment. (Joseph Burstyn, Inc. v Wilson, 343 US 495; Interstate Circuit v Dallas, 390 US 676). Therefore the question for consideration here is whether the licensing scheme which the plaintiff is attempting to enforce against the defendants herein constitutes a valid exercise of the police power in an area which clearly infringes on First Amendment freedoms. Accordingly the Court of Appeals has declared that, "in order for an exercise of the police power to be valid, there must be 'some fair, just and reasonable connection’ between it and the promotion of the health, comfort, safety and welfare of soci
At the heart of the issue regarding the unconstitutionality of the New York City "movie licensing statute”, is the inordinate emphasis on prior criminal convictions governing the issuance, renewal and revocation of licenses under the ordinance. Standards for excluding persons from engaging in commercial activities must bear some reasonable relation to their qualifications to engage in these activities. In the present case I can perceive no reasonable relation between the qualifications of an applicant to operate a movie theatre and any past conviction of any of the vast number of crimes listed in section B32-26.0 (subd a, par 5) of the Administrative Code. To permit the suspension of operation of a movie theatre on the basis of a prior conviction even for obscenity, amounts to an unconstitutional suppression of protected freedom of expression. (Avon 42nd St. Corp. v Myerson, 352 F Supp 994, 998.) It is well established by a series of decisions that ordinances controlling licensing of movie theatres are unconstitutional where officials are vested with authority to grant or deny the license on the basis of a prior criminal conviction. In City of Seattle v Bittner (81 Wn 2d 747) an ordinance which denied a theatre license if the applicant has within 10 years of the date of application been convicted of any felony or any misdemeanor involving moral turpitude or intent to defraud,
In the court’s view, the defendants’ point that the operators of movie houses have been singled out for the purposes of excessive regulation, is well taken. Participants in the business of distributing and displaying motion pictures require no special expertise. They are not like doctors or lawyers or school teachers whose past criminal convictions are often directly related to their occupational qualifications and may therefore be reasonably invoked to bar them from practicing their professions. The ordinance in this case appears to be primarily concerned with persons who have been convicted of sex crimes. No showing has been made that such persons are in any way disqualified to participate in the operation of a movie theatre or likely to abuse the right to do so to promote any criminal propensities that they may still possess. Accordingly, the ordinance’s broad exclusion for past criminal convictions goes far beyond any constitutionally permitted restriction on the right to engage in a lawful occupation or business.
It is contended however by the plaintiff, that "under the law, a license or employment opportunity cannot be denied an individual on the basis of a previous criminal conviction, unless the conduct of the crime which he was convicted of has a direct bearing on his ability or fitness to perform a responsibility related to the licensure or employment sought.” Clearly however, such a contention cannot stand in the face of the precise language of the statute in question. In this respect it is the finding of this court that the mere conviction of one or more of the enumerated crimes listed in the "movie licensing statute” cannot, as a matter of law, have any bearing on the ability of a license applicant to operate a movie theatre. Furthermore, it is abundantly clear that the movie licensing statute is set up in such a manner, that the conviction of a crime will allow the licensing official to find that, "there is a direct relationship between the offense and the conduct of a
In addition, the court is not convinced that the thrust of the movie licensing statute reaches for a legitimate purpose as defined in section 773-1.0 of the Administrative Code.
The court finds to be without merit the reliance of the defendants on the case of Gannett Co. v City of Rochester (69 Misc 2d 619).
Although certain parts of the movie licensing statute are
. Apparently five of the defendants have made application for a license and such applications are currently pending in the Department of Consumer Affairs.
. Subdivision b of section 773-5.0 of the Administrative Code imposes a fine ranging from $25 to $500 and/or 15 days imprisonment, together with a civil penalty of $100 on any person who engages in a regulated activity without a license.
. Petitioners were charged with violating section 103.109 of the Los Angeles Municipal Code, a misdemeanor.
. See section B32-22.0.
. See section B32-25.0.
. See section B32-26.0.
. Seattle Ordinance, § 10.02.100(6).
. City of Delavan Ordinance No. 73-6, § 12.
. City Code of St. Paul, § 372.04(g).
. A conviction of this crime (i.e., Penal Law, § 260.20, subd 5) is an offense relating to unlawfully dealing with a child, and as such constitutes grounds for denial or revocation of a license.
. Violation of zoning resolutions is a misdemeanor under section 643a-12.0 of the Administrative Code.
. Section 773-1.0 states that, "for the protection and relief of the public from deceptive, unfair and unconscionable practices, for the maintenance of standards of integrity, honesty and fair dealing among persons and organizations engaging in licensed activities, for the protection of the health and safety of the people of New York City and for other purposes requisite to promoting the general welfare”.
. Section 752 provides that "No application for any license or employment, to which the provisions of this article are applicable, shall be denied by reason of the applicant’s having been previously convicted of one or more criminal offenses * * * unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought.”
. See defendants memorandum in support of motion to dismiss, p 10.
. See section B32-26.0, subd a, par 1, cl [D],
. Section 773-16.0 of the Administrative Code provides that, "[i]f any provisions of this title or the application of such provisions to any person or circumstance shall be held unconstitutional or invalid, the constitutionality or validity of the remainder of this chapter and the applicability of such provision to other persons or circumstances shall not be affected thereby.
. After writing the decision in this case and prior to its publication in court the case of Natco Theatres v Ratner (US Dist Ct, SDNY) was decided by Judge Gerard L. Goettel. Both courts have reached the same conclusion independent of each other.