Sportsmens Tavern Lawsuit

FILED: ERIE COUNTY CLERK 08/24/2020 10:59 AM INDEX NO.
809297/2020
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/24/2020
STATE OF NEW YORK

SUPREME COURT : COUNTY OF ERIE
SPORTSMEN'S TAVERN LLC,
Petitioner,
VERIFIED PETITION
For Judgment Pursuant to
Article 78 of the CPLR and/or the First Amendment to the Index No.
United States Constitution and Article 1, §8 of the New
York State Constitution
v.
NEW YORK STATE LIQUOR AUTHORITY,
Respondent.
Petitioner, SPORTSMEN'S TAVERN LLC, herein respectfully alleges:
1. At all times relevant hereto, Petitioner SPORTSMEN'S TAVERN LLC
("Petitioner") was and is a New York limited liability company with a principal place of business
located at 326 Amherst Street, Buffalo, New York 14207 (the "Buffalo Premises"), wherein it
operates a licensed bar/restaurant.
2. Upon information and belief, at all times relevant hereto, Respondent NEW
YORK STATE LIQUOR AUTHORITY ("SLA") was, and is, a government agency established
and existing under the laws of the State of New York, authorized under the NY Alcoholic
Beverage Control Law to issue licenses for restaurants and taverns to sell liquor on-premises.
3. Petitioner is licensed by the SLA to serve alcoholic beverages.
4. Petitioner offers a full-service food menu to its patrons.
5. Petitioner also offers live entertainment to its patrons in the form of live on
premise music.
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6. Petitioner frequently advertises and/or offers for sale tickets for live on premise
music at the Buffalo Premises.
7. The business operations of Petitioner has been severely impacted by the pandemic
caused by the novel coronavirus and the illness that it causes, COVID-19, and has, through no
fault of its own, been forced to curtail business and/or severely limit its business operations as
required by governmental order.
8. Indeed, as a result of the COVID-19 pandemic, New York State issued orders
requiring the full or partial suspension of business at a wide range of establishments, which
includes enforceable authority by virtue of civil authorities with jurisdiction over Petitioner's
businesses (collectively the "Suspension Orders").
9. The Suspension Orders include, but are not limited to, the following Executive
Orders issued by Governor Andrew Cuomo:
a. Executive Order 202,issued on March 7, 2020, declaring a "disaster emergency"
for all of New York State because of COVID-19;
b. Executive Order 202.1, issued on March 12, 2020, requiring that any large
gathering or event where attendance was anticipated to be in excess of five
hundred people to be cancelled or postponed for a minimum of thirty days, and
requiring any business where attendance would be fewer than five hundred
people, to operate at no greater than fifty percent occupancy and no greater than
fifty percent of seating capacity.
c. Executive Order 202.3, issued on March 16, 2020, that any large gathering or
event where more than fifty people were expected to attend to be cancelled or
postponed indefinitely, and requiring that any restaurant or bar in the state of New
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York cease serving patrons food or beverage on-premises effective at 8 pm on
March 16, 2020, and limiting the service offood or beverage to off-premises
consumption only.
10. These various Executive Orders and/or parts thereof have been continued and/or
extended by subsequent Executive Order.
1 1. Then, on April 26, 2020, Governor Cuomo announced a phased approach to
reopen industries and businesses in New York that was purportedly based upon a data-driven,
regional analysis.
12. On May 4, 2020, the Governor indicated that the regional analysis would include
several public health factors, such as new COVID-19 infections, health care system capacity,
diagnostic testing, and contact tracing capacity.
13. Under the Governor's plan, "New York Forward," the various counties in the
state were grouped into ten regions,' and reopening would purportedly be based on a review of
the conditions specific to each region.
14. The Buffalo Premises at issue here is located within the Western New York
Region.
15. On May 11, 2020, Governor Cuomo announced that the first phase of reopening
would begin on May 15, 2020 in several regions of New York based upon available regional
metrics and indicators.
16. On June 6, 2020 and June 7, 2020, the Governor issued Executive Orders 202.38
and 202.39, respectively, which modified the blanket prohibition against on premise service of
food and beverages set forth in Executive Order 202.3 to allow "a restaurant or bar to serve
' The ten regions are the Capital District, Central New York, Finger Lakes, Hudson Valley (without
Westchester/Rockland), Long Island, Mohawk Valley, North Country, New York City, Southern Tier,
Westchester/Rockland and Western New York.
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patrons food or beverage on-premises only in outdoor space, provided such restaurant or bar is in
compliance with Department of Health guidance promulgated for such activity" and the
restaurant or bar was located in a region cleared for Phase 2 of reopening.
17. Nothing in Executive Orders 202.38 or 202.39 precludes the reopening and
operation of a bar/restaurant that offers live music. True and correct copies of Executive Orders
202.38 and 202.39 are attached hereto as Exhibits A and B.
18. Subsequently, New York State authorities promulgated rules and regulations for
bars and restaurants expressly providing that indoor on-premises service could resume so long as
bars and restaurants complied with the mandatory guidelines issued by the State. A copy of the
Food Service Guidelines for Employers and Employees is attached hereto as Exhibit C.
19. Under these guidelines, on-premises indoor service offood and beverages became
permissible in any Region that had entered Phase 3 of reopening.
20. The Western New York Region, in which Petitioner is located, entered Phase 3 on
June 16, 2020.
21. In compliance with the guidelines for re-opening indoor service establishments,
Petitioner resumed operations when Western New York entered Phase 3 of re-opening.
22. Prior to re-opening, Petitioner was authorized by the Respondent SLA to operate
and offer live musical performances. Attached hereto as Exhibit D is a statement received by
Petitioner from the SLA confirming that upon reopening it would be permitted to resume
providing live music. Attached hereto as Exhibit E is an investigation report New York State
Department of Health, following up on a complaint, that the Department expressly concluded
was unfounded, and finding that Petitioner was in compliance with all required safety protocols
then promulgated.
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23. Petitioner has remained in compliance with the re-opening guidelines, including
having tables separated by six feet; requiring employees and patrons to comply with masking
requirements; cleaning and sanitizing tables, chairs, restrooms, stages, microphones, and other
high-traffic areas; and requiring performers to maintain twelve feet of separation from patrons.
24. Due to the spacing guidelines requiring six feet of separation between all tables,
Petitioner has been forced to operate at approximately thirty-three (33%) percent of maximum
occupancy; well below the fifty percent (50%) maximum capacity permitted under the
guidelines.
25. Additionally, Petitioner has provided a separate entrance and dressing room for its
performers, takes and records body temperatures for each performer prior to admittance, and
ensures that performers maintain adequate distance (of not less than twelve feet) from patrons
while performing.
26. Upon information and belief, at the time licensed restaurants and bars were
permitted to reopen when their region entered Phase 3, the SLA permitted such establishments to
have live entertainment, and there was no express prohibition on the form or content of live
entertainment offered.
27. Upon information and belief, the SLA provided guidance in the form of answers
to "Frequently Asked Questions" on its website, which referred business owners to the
requirements for live indoor entertainment issued by the Department of Health, such as patrons
remaining seated except for necessary reasons (e.g., restroom, entering/exiting), standing patrons
should wear face coverings, and performers should be at least 12 feet from patrons.
28. Upon information and belief, at some point between the Western New York
Region entering Phase 4 on June 30, 2020 and August 20, 2020, Respondent SLA modified its
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guidelines to prohibit all forms of live entertainment except for live music which is "incidental to
the dining experience and not the draw itself" See, SLA Phase 3/4 Guidelines for Licensed On-
Premises Establishments, available at https://sla.ny.gov/phase3-guidelines-for-on-premises-
licenses (last visited on August 22, 2020)("Guideline"). Furthermore, the modified guidelines
state that "advertised and/or ticketed shows are not permissible." See id. Thus, the SLA,an arm
ofthe State of New York, imposed a content-based rule, sanctioning one form of expression over
another and vesting the SLA with unbridled discretion to determine what constitutes music
"incidental to the dining experience and not the draw itself."
29. Consequently, after reopening for a short period of time, Petitioner's owner,
Dwane Hall, learned on August 20, 2020, that he could no longer advertise and/or sell tickets or
offer his patrons live entertainment in the form of live music as "the draw itself," even though
such prohibited activity would neither increase the legal occupancy capacity nor diminish the
required safety precautions.
30. Additionally and critically, Petitioner's inability to distinguish between live music
"incidental to the dining experience" and live music which is "the draw itself' prevents
Petitioner from being able to offer any type of live entertainment for fear of violating the SLA's
guidelines.
31. Petitioner's ability to engage in protected expression — the communication of
information about live music — has been silenced, even though such communication in no way
impacts the total capacity nor the safety requirements.
32. If Petitioner is not allowed to legally advertise its live entertainment, there is a
substantial risk that Petitioner will go out of business.
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33. The previous shutdown of all restaurants and bars in the Western New York
Region for indoor service has had a substantial impact on the finances of Petitioner, and upon
information and belief, the finances of many restaurants and bars in the Western New York
Region.
34. This targeted restriction of Petitioner's establishment on the basis of
advertisement, ticket sales, and the form of live music offered, without any support for restricting
the mode of legal advertisement is a content based violation of the First Amendment as well as
arbitrary and capricious.
35. Moreover, it is unclear whether the SLA could provide any justification for its
arbitrary and capricious rule. The Food Services Guidelines for Employers and Employees have
already limited Petitioner's maximum occupancy and implemented other health regulations such
as distancing, sanitizing, and masking requirements that must be followed, regardless of whether
music of any kind is offered at the Premises, and regardless if having such music is advertised.
Indeed, Petitioner does not bypass these occupancy, distancing, and other health requirements by
advertisement, ticket sales, or the offering of certain types of live music. As a result, the SLA
Guideline has curtailed Petitioner's constitutionally protected speech without furthering any
governmental interest.
36. The SLA's arbitrary and capricious rule has eviscerated Petitioner's First
Amendment rights as well as those of its performers and patrons as content-based discrimination.
Indeed,"[m]usic is one of the oldest forms of human expression," and "as a form of expression
and communication, is protected under the First Amendment. Ward v. Rock Against Racism,491
U.S. 781, 790 (1989)(holding that city's regulation of musical aspects of a concert must meet
the demands of the First Amendment). So, too, is communication about music, such as
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advertising and ticketing. In the end the regulations concerning capacity and safety standards are
not changed whether an establishment achieves capacity by advertising a live band or a free
steak dinner. Thus, there is no rational basis to prohibit a form of advertising.
AS AND FOR A FIRST CAUSE OF ACTION
37. Petitioner repeats and realleges each and every paragraph above with the same
force and effect as if fully set forth herein.
38. The subject guidance issued by Respondent SLA prohibiting licensed bars and
restaurants from providing live music which is not "incidental to the dining experience" or "not
the draw itself' and the threat to cite Petitioner for operating its establishment constitutes an
unconstitutional prior restraint because the Guideline gives SLA officials unbridled discretion
which is per se unlawful on its face.
39. Petitioner has a clear legal right to provide live music entertainment to its
customers, and Respondent SLA has promulgated a Guideline which intimidates parties, such as
Petitioner, into censoring their own legal speech for fear of retribution, thereby creating a
"chilling effect" on First Amendment protected speech.
40. Petitioner has a clear legal right not to be subject to the subjective and
discriminatory decisions and polices being made by the SLA which amount to so called
government acceptance of one legal form of expression over another legal form of expression,
and not grounded in good science or medical data, and is thus, as well arbitrary and capricious.
41. Petitioner is suffering per se irreparable injury and is threatened with irreparable
injury in the future by reason of being forced to cease lawful First Amendment activity in the
form of advertisement, ticket sales, and the offering of certain live entertainment due to the
nature of such live entertainment, and Petitioner has no plain, adequate nor complete remedy to
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protect the constitutional rights and to redress the wrongs and illegal acts complained of, other
than immediate and continuing injunctive relief.
42. Petitioner faces the prospect of a loss of its businesses and the violation of its civil
rights and liberties as a result of Respondent SLA's decision to exclude music which is not
"incidental to the dining experience" from the types of live entertainment otherwise permissible
at bars and restaurants in the Western New York Region.
43. Absent an injunction, the harm to Petitioner in the loss of its constitutional rights
exceeds any conceivable harm Respondent or the State of New York would suffer if they were
prohibited from enforcing a facially unconstitutional regulation; indeed, there can be no harm to
the Respondent since all capacity and safety requirements remain in place if an injunction is
granted.
44. Petitioner is therefore entitled to a declaratory judgment declaring that the
prohibitions against engaging in advertising or ticketing of live music, and having live music that
is limited to being "incidental to the dining experience" and "not the draw itself' are
unconstitutional on its face and as applied to Petitioners under the First Amendment to the
United States Constitution and corresponding provisions of the New York State Constitution,
together with a preliminary and permanent injunction prohibiting the enforcement of such
provision by Respondent SLA and would not be contrary to the public interest.
45. Petitioner has suffered irreparable injury.
AS AND FOR A SECOND CAUSE OF ACTION
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restaurants from providing live music which is not "incidental to the dining experience" and "not
the draw itself' and the threat to cite Petitioner for operating its establishments is
unconstitutionally vague because it fails to provide person(s) of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits, and authorizes or even
encourages arbitrary and discriminatory enforcement.
customers, and Respondent SLA has promulgated a Guideline which results in speculation by
parties, such as Petitioner, as to whether their conduct constitutes a violation of the Guideline.
Furthermore, the Guideline encourages arbitrary and discriminatory enforcement against certain
types of speech based upon its content.
and not grounded in good science or medical data, and is thus, arbitrary and capricious as well.
50. Petitioner is suffering irreparable injury and is threatened with irreparable injury
in the future by reason of being forced to cease advertisement, ticket sales, and offering of
certain live entertainment due to the nature of such live entertainment, and Petitioner has no
plain, adequate nor complete remedy to protect the constitutional rights and to redress the
wrongs and illegal acts complained of, other than immediate and continuing injunctive relief.
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"incidental to the dining experience" and "not the draw itself' from the types of live
entertainment otherwise permissible at bars and restaurants in the Western New York Region.
prohibited from enforcing an unconstitutionally vague regulation.
prohibition against music which is not "incidental to the dining experience" and "is not the draw
itself' is void for vagueness under the First Amendment to the United States Constitution and
corresponding provisions of the New York State Constitution, together with a preliminary and
permanent injunction prohibiting the enforcement of such provision by Respondent SLA and
would not be contrary to the public interest.
AS AND FOR A THIRD CAUSE OF ACTION
restaurants from advertising and/or selling tickets for live music, or providing live music which
is not "incidental to the dining experience" and "not the draw itself' and the threat to cite
Petitioner for operating its establishments constitutes an impermissible content-based regulation
ofspeech in violation ofthe First Amendment of the Constitution.
customers, and Respondent SLA has promulgated a Guideline which regulates the content of
speech, i.e. communication about live musical performances in the form of advertising and
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ticketing for such performances, and is thus presumptively invalid and subject to strict scrutiny.
Regardless of advertising or ticketing, such live performances will not result in any number of
patrons greater than the number allowed by the Food Services Guidelines for Employers and
Employees. As such, it is not the least restrictive means for furthering the governmental interest
of public health and safety, because regardless of the ban on communications about live musical
performances, Petitioner's occupancy, and other aspects of his operations are already governed
by the Food Services Guidelines.
and not grounded in good science or medical data, and is thus, arbitrary and capricious as well.
in the future by reason of being forced to cease advertisement, ticket sales, and offering of
certain live entertainment due to the nature of such live entertainment, and Petitioner has no
plain, adequate nor complete remedy to protect the constitutional rights and to redress the
"incidental to the dining experience" and "not the draw itself' from the types of live
entertainment otherwise permissible at bars and restaurants in the Western New York Region.
prohibited from enforcing an impermissible content-based regulation of protected speech.
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prohibition against advertising and/or selling tickets for live music, and music which is not
"incidental to the dining experience" and "not the draw itself' constitutes an impermissible
content-based regulation of protected speech under the First Amendment to the United States
Constitution and corresponding provisions of the New York State Constitution, together with a
preliminary and permanent injunction prohibiting the enforcement of such provision by
Respondent SLA and would not be contrary to the public interest.
AS AND FOR A FOURTH CAUSE OF ACTION
restaurants from advertising and/or selling tickets for live music, or providing live music which
is not "incidental to the dining experience" and "not the draw itself' and the threat to cite
Petitioner for operating its establishments violates the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution because it allows operation of restaurants and bars
who provide music but who do not engage in First Amendment protected speech about their live
musical performances, but restricts restaurants and bars who do engage in First Amendment
protected speech about their live musical performances through advertising and ticket sales.
customers, and Respondent SLA has promulgated a Guideline which does not treat similarly
situated parties in the same manner, i.e. bars and restaurants that have the capacity to offer live
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music based on whether they do or do not engage in the First Amendment protected activity of
advertising and ticketing.
and not grounded in good science or medical data, and is thus, as well arbitrary and capricious.
in the future by reason of being forced to cease advertisement and ticket sales, and Petitioner has
no plain, adequate nor complete remedy to protect the constitutional rights and to redress the
rights and liberties as a result of Respondent SLA's decision to prohibit advertisement and ticket
sales for live entertainment otherwise permissible at bars and restaurants in the Western New
York Region.
prohibited from enforcing a regulation which violates the Equal Protection Clause.
prohibition against advertising and/or ticket sales for live music, or providing live music which is
not "incidental to the dining experience" and "not the draw itself' violates the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution and corresponding
provisions of the New York State Constitution, together with a preliminary and permanent
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injunction prohibiting the enforcement of such provision by Respondent SLA and would not be
contrary to the public interest.
AS AND FOR A FIFTH CAUSE OF ACTION
74. There is no valid or sound scientific or medical rationale for distinguishing
between certain forms of live music entertainment, or between live music entertainment for
which advertisements and/or ticket sales have been made, as has been done by Respondent SLA.
As a result, the Guideline is arbitrary, capricious and an abuse of discretion, and unlawful based
violation of the right offree expression.
75. Indeed, whether a live music performance is "incidental" or "the main draw,"
Petitioner is nonetheless required to abide by the Food Services Guidelines for Employers and
Employees, including maximum occupancy and distancing requirements. Therefore, the
Guideline has no effect on Petitioner's maximum capacity, the physical distance between
patrons, or compliance with any other health and safety regulation. As a result, the Guideline
prohibits Petitioner's First Amendment protected speech without furthering any governmental
interest whatsoever.
76. Essentially, under the pretext of the COVID-19 pandemic, the SLA is seeking to
institute a blanket prohibition against certain types of live musical performance, and
communication about such performances, resulting in an unconstitutional content based
distinction that violates the free speech provisions of the United States and New York State
Constitutions.
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77. The SLA has promulgated this rule with no findings, studies, or evidence to
support the distinction between different types of live musical performance, those which have
been advertised, and those for which tickets have been sold.
78. Petitioners have commenced this proceeding pursuant to CPLR §7803(3).
79. By reason of the foregoing, the decision of the SLA to allow one form of live
entertainment (live music which is incidental to the dining experience) and prohibit other forms
(live music which is not incidental to the dining experience, or live music which is advertised
and/or for which tickets are sold) is arbitrary, capricious and an abuse of discretion, and an
unlawful content based violation of the right offree expression.
80. The SLA's arbitrary and capricious decision has caused a serious financial
hardship on Petitioner and has eviscerated Petitioner's ability to offer First Amendment protected
speech to its patrons to the detriment of Petitioner, its employees, live music performers, and the
patrons.
WHEREFORE,Petitioner demandfjudgment:
A. On its First Cause of Action, declaring that Respondent SLA's Guideline
constitutes an unconstitutional prior restraint of First Amendment protected speech because the
Guideline gives SLA officials unbridled discretion which is per se unlawful on its face;
B. On its Second Cause of Action, declaring Respondent SLA's decision
unconstitutionally vague because it fails to provide person(s) of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits, and authorizes or even
encourages arbitrary and discriminatory enforcement;
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C. On its Third Cause of Action, declaring Respondent SLA's decision constitutes an
impermissible content-based regulation of speech in violation of the First Amendment of the
Constitution and corresponding provisions ofthe New York State Constitution;
D. On its Fourth Cause of Action, declaring that Respondent SLA's decision violates
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and
corresponding provisions of the New York State Constitution;
E. On its Fifth Cause of Action, declaring that Respondent SLA's decision is
arbitrary, capricious, an abuse of discretion, and unlawful based violation of the right of free
expression;
F. Preliminarily during the pendency of this proceeding and permanently thereafter
enjoining and restraining Respondent SLA from prohibiting the advertising, selling tickets, and
offering live music which is not incidental to the dining experience;
G. Awarding Petitioner its costs and disbursements in this proceeding; and
H. Awarding such other and further relief as the Court deems just and proper.
DATED: August 24, 2020

Buffalo, New York
LIPSITZ GREEN SCIME CAMBRIA LLP
ambria, Jr., Esq.

effrey F. Reina, Esq.
Attorneysfor Petitioner
42 Delaware Avenue, Suite 120
Buffalo, New York 14202-3857
(716) 849-1333
pcambria@lglaw.com
jreina@lglaw.com
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VERIFICATION
STATE OF NEW YORK )

)SS:
COUNTY OF ERIE
Dwane Hall, being duly sworn, deposes and says that he is a Managing Member of
Petitioner SPORTSMENS TAVERN, LLC in the within action and that he has read the
foregoing Verified Petition and knows the contents thereof, that the same is true to Deponent's
knowledge, except as to matters therein stated to be alleged on information and belief and as to
those matters Deponent believes them to be true. Deponent has made this verification, and not
the Petitioner, because the Petitioner is a corporation.
K
DW-A E HALL
Subscribed and sworn to before me

this a‘ittlelay
of Au•ust, 2020.
S
.41*-14 JEFFREY F. REINA
A!isrhointeff Notary Public, State of New York
•i of
'y Qualified in Niagara County
No.02RE6333443
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FILED: ERIE COUNTY CLERK 08/24/2020 10:59 AM INDEX NO.

STATE OF NEW YORK

SPORTSMEN'S TAVERN LLC,

NEW YORK STATE LIQUOR AUTHORITY,

Petitioner, SPORTSMEN'S TAVERN LLC, herein respectfully alleges:

1. At all times relevant hereto, Petitioner SPORTSMEN'S TAVERN LLC

operates a licensed bar/restaurant.

3. Petitioner is licensed by the SLA to serve alcoholic beverages.

4. Petitioner offers a full-service food menu to its patrons.

music at the Buffalo Premises.

required by governmental order.

businesses (collectively the "Suspension Orders").

Orders issued by Governor Andrew Cuomo:

a. Executive Order 202,issued on March 7, 2020, declaring a "disaster emergency"

for all of New York State because of COVID-19;

gathering or event where attendance was anticipated to be in excess of five

hundred people to be cancelled or postponed for a minimum of thirty days, and

fifty percent of seating capacity.

York cease serving patrons food or beverage on-premises effective at 8 pm on

extended by subsequent Executive Order.

1 1. Then, on April 26, 2020, Governor Cuomo announced a phased approach to

diagnostic testing, and contact tracing capacity.

the conditions specific to each region.

metrics and indicators.

restaurant or bar was located in a region cleared for Phase 2 of reopening.

202.38 and 202.39 are attached hereto as Exhibits A and B.

permissible in any Region that had entered Phase 3 of reopening.

June 16, 2020.

Department of Health, following up on a complaint, that the Department expressly concluded

Premises Establishments, available at https://sla.ny.gov/phase3-guidelines-for-on-premises-

"incidental to the dining experience and not the draw itself."

required safety precautions.

31. Petitioner's ability to engage in protected expression — the communication of

impacts the total capacity nor the safety requirements.

substantial risk that Petitioner will go out of business.

34. This targeted restriction of Petitioner's establishment on the basis of

arbitrary and capricious.

steak dinner. Thus, there is no rational basis to prohibit a form of advertising.

AS AND FOR A FIRST CAUSE OF ACTION

force and effect as if fully set forth herein.

which is per se unlawful on its face.

"chilling effect" on First Amendment protected speech.

than immediate and continuing injunctive relief.

at bars and restaurants in the Western New York Region.

44. Petitioner is therefore entitled to a declaratory judgment declaring that the

45. Petitioner has suffered irreparable injury.

AS AND FOR A SECOND CAUSE OF ACTION

force and effect as if fully set forth herein.

unconstitutionally vague because it fails to provide person(s) of ordinary intelligence a

reasonable opportunity to understand what conduct it prohibits, and authorizes or even

encourages arbitrary and discriminatory enforcement.

types of speech based upon its content.

prohibited from enforcing an unconstitutionally vague regulation.

53. Petitioner is therefore entitled to a declaratory judgment declaring that the

would not be contrary to the public interest.

54. Petitioner has suffered irreparable injury.

AS AND FOR A THIRD CAUSE OF ACTION

force and effect as if fully set forth herein.

Petitioner for operating its establishments constitutes an impermissible content-based regulation