Doe v. City of Buffalo

New York Court of Appeals

Doe v. City of Buffalo

439 N.E.2d 321, 56 N.Y.2d 926, 453 N.Y.S.2d 605, 1982 N.Y. LEXIS 3517

CourtNew York Court of Appeals

DecidedJune 17, 1982

StatusPublished

Cited by1 cases

This text of 439 N.E.2d 321 (Doe v. City of Buffalo) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Doe v. City of Buffalo, 439 N.E.2d 321, 56 N.Y.2d 926, 453 N.Y.S.2d 605, 1982 N.Y. LEXIS 3517 (N.Y. 1982).

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Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified so as to declare that portion of section 16 (subd [17], par 1, cl [e]) of chapter 70 of the Buffalo City Ordinances unconstitutional insofar as it requires an applicant for an adult use permit to disclose “such other information as the director of licenses and permits shall require.” As so modified, the order should be affirmed, with costs.

We agree with the Appellate Division that, as applied to plaintiff, the registration requirements of section 31 of chapter 7 of the Buffalo City Ordinances are not violative of the Fifth and Fourteenth Amendments. However, by conditioning the grant or denial of a permit to operate an adult theatre upon the filing of an application containing “such other information as the director of licenses and permits shall require”, section 16 (subd [17], par 1, cl [e]), in effect, confers open-ended discretionary, power upon the director of licenses and permits in an area potentially affecting the free exercise of First Amendment rights. As such, this portion of the ordinance is void on its face. (See, e.g., Shuttlesworth v City of Birmingham, 394 US 14.7; Staub v City of Baxley, 355 US 313; Lovell v Griffin, 303 US 444; see, generally, Tribe, American Constitutional Law, §§ 12-32 — 12-35.) Nor is plaintiff’s challenge to the ordinance premature inasmuch as it is the mere existence of such unbridled discretion, as opposed to its actual use, which renders this provision of the ordinance constitutionally offensive.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, with costs to appellant, in accordance with the memorandum herein and, as so modified, affirmed.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified so as to declare that portion of section 16 (subd [17], par 1, cl [e]) of chapter 70 of the Buffalo City Ordinances unconstitutional insofar as it requires an applicant for an adult use permit to disclose “such other information as the director of licenses and permits shall require.” As so modified, the order should be affirmed, with costs.

We agree with the Appellate Division that, as applied to plaintiff, the registration requirements of section 31 of chapter 7 of the Buffalo City Ordinances are not violative of the Fifth and Fourteenth Amendments. However, by conditioning the grant or denial of a permit to operate an adult theatre upon the filing of an application containing “such other information as the director of licenses and permits shall require”, section 16 (subd [17], par 1, cl [e]), in effect, confers open-ended discretionary, power upon the director of licenses and permits in an area potentially affecting the free exercise of First Amendment rights. As such, this portion of the ordinance is void on its face. (See, e.g., Shuttlesworth v City of Birmingham, 394 US 14.7; Staub v City of Baxley, 355 US 313; Lovell v Griffin, 303 US 444; see, generally, Tribe, American Constitutional Law, §§ 12-32 — 12-35.) Nor is plaintiff’s challenge to the ordinance premature inasmuch as it is the mere existence of such unbridled discretion, as opposed to its actual use, which renders this provision of the ordinance constitutionally offensive.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, with costs to appellant, in accordance with the memorandum herein and, as so modified, affirmed.

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439 N.E.2d 321, 56 N.Y.2d 926, 453 N.Y.S.2d 605, 1982 N.Y. LEXIS 3517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-city-of-buffalo-ny-1982.

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