Opinion
Argued May 12, 1982
Decided June 17, 1982
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, JOSEPH D. MINTZ, J.
Frank S. Kedzielawa and Paul J. Cambria, Jr., for appellant. Joseph P. McNamara, Corporation Counsel ( William E. Carey and Patricia A. Pancoe of counsel), for respondents.
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 U.S. 147; Staub v City of Baxley, 355 U.S. 313; Lovell v Griffin, 303 U.S. 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.