Salem Inn, Inc. v. Frank, 381 F.Supp. 859 (E.D.N.Y., 1974)
SALEM INN, INC., and M & L Rest, Inc., Plaintiffs,
Louis J. FRANK, Individually and as Police Commissioner of Nassau County, et al., Defendants.
United States District Court, E. D. New York.
September 10, 1974.
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.
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
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.
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.
Defendants assert that this is a proper case for abstention, citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L. Ed.2d 688 (1971). They contend...