Opinion
September 30, 1994
Appeal from the Supreme Court, Monroe County, Wisner, J.
Present — Green, J.P., Fallon, Wesley, Doerr and Boehm, JJ.
Judgment unanimously affirmed with costs. Memorandum: Supreme Court properly declared that the criteria used by the Town Board of the Town of Henrietta (Town Board) in denying plaintiffs' application for a special permit are unconstitutional. Although the Town Code does not directly regulate constitutionally protected expression, "the provision requiring a special * * * permit after a public hearing impermissibly vests town officials with the power to discriminate on the basis of the content of the * * * expression" (Town of Islip v. Caviglia, 141 A.D.2d 148, 166, affd 73 N.Y.2d 544). Section 127-48 of the Town Code does not provide "narrow, objective and definite standards to guide" the Town Board (Shuttlesworth v. Birmingham, 394 U.S. 147, 151; see, Town of Islip v. Caviglia, supra, at 166; 15192 Thirteen Mile Rd. v. City of Warren, 593 F. Supp. 147, 156; Little v. City of Greenfield, 575 F. Supp. 656, 662; Amico v. New Castle County, 571 F. Supp. 160, 173). Rather, the criteria contained in that section confer broad discretion upon the Town Board, leaving the permit process open to the kind of arbitrary action that is "inherently inconsistent with a valid time, place and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view" (Heffron v International Socy. for Krishna Consciousness, 452 U.S. 640, 649). Thus, the Town of Henrietta was properly enjoined from enforcing the special permit requirements of the Town Code against establishments offering live entertainment.