"Q"-Lungian Enters., Inc. v. Town of Windsor Locks
| Citation | 272 F.Supp.3d 289 |
| Decision Date | 18 September 2017 |
| Docket Number | No. 3:13–cv–01285 (JAM),3:13–cv–01285 (JAM) |
| Court | U.S. District Court — District of Connecticut |
| Parties | "Q"–LUNGIAN ENTERPRISES, INC., et al., Plaintiffs, v. TOWN OF WINDSOR LOCKS, et al., Defendants. |
Daniel A. Silver, Law Office of Daniel A. Silver, New Britain, CT, Jennifer M. Kinsley, Sirkin, Pinales & Schwartz, LLP, Cincinnati, OH, for Plaintiffs.
Katherine E. Rule, Thomas R. Gerarde, Howd & Ludorf, LLC, Hartford, CT, for Defendants.
RULING ON CROSS–MOTIONS FOR SUMMARY JUDGMENT
Nude dancing is expressive activity that qualifies for protection as "free speech" under the First Amendment to the U.S. Constitution. The plaintiffs in this lawsuit ran a billiards bar and restaurant known as "Pool Table Magic" in the Town of Windsor Locks, Connecticut. They wanted to expand their business to include topless female dancers. But the Town denied them a zoning permit. So plaintiffs sued on grounds that the Town's zoning code violates the First Amendment.
I will now dismiss this action for two reasons. First, plaintiffs don't have standing. For a plaintiff to have standing to maintain an action in a federal court, a plaintiff must not only prove an injury caused by a defendant but also that a court ruling in the plaintiff's favor would redress that injury. Although plaintiffs here have sued the Town to challenge its zoning code, they have not challenged a separate state regulation that prohibits them as a liquor licensee from employing or using female topless dancers. Even if I ruled for plaintiffs that the local zoning code violated their First Amendment rights, plaintiffs would still have remained subject to the state liquor regulation, and my ruling would not redress plaintiffs' claim of injury.
Second, the Town's zoning code did not violate plaintiffs' rights under the First Amendment. Because the zoning code is not a content-based regulation of expressive activity, it is not presumptively invalid under the First Amendment. Nor is it a verboten prior restraint on speech. To the extent that the Town's zoning code affected plaintiffs' plans at all to engage in expressive activities, it operated as a valid time-place-and-manner regulation with reasonable criteria and allowance for alternative avenues for free expression. The Town did not violate the First Amendment.
In 1993, the Town of Windsor Locks adopted an adult-oriented establishment ordinance. Doc. # 54–9. The preamble to this ordinance notes that "there are a number of ‘adult oriented establishments’ located in the Town of Windsor Locks which require special supervision from the Town's public safety agencies in order to protect and preserve the health, safety and welfare of the patrons of such establishments, as well as the health, safety and welfare of the Town's citizens." Id. at 3. The preamble recites public health and safety concerns relating to such adult businesses, including that such establishments may encourage prostitution and cause health problems from the deposit of human bodily fluids in publicly accessible locations. Id. at 3–4. The ordinance goes on to note that it is not the Town's intent to deny any person the right to free speech as protected by the federal and state constitutions. Id. at 4.
The 1993 ordinance defines an "adult-oriented establishment" to include in relevant part an adult entertainment venue that features live performances by topless women. Id. at 6–7. Among other regulations, the ordinance prohibits all adult entertainment establishments from being located within 500 feet of a residential zone or 1000 feet of a public park or playground. Id. at 8. The parties do not dispute that at the time of the events at issue in this case the Town required that any such adult-oriented establishments be located in a B–1 (business) zoning district.1
Apart from this adult business ordinance, the Town was also governed at the relevant time by a general and comprehensive zoning code. As of October 2012, the operative form of the zoning code was the 2009 printing, subject to a few 2011 amendments not relevant to this case. Section 402 of this code contained tables listing in detail both the permitted and prohibited uses of land in each type of zoning district. Doc. # 52–4 at 2–10. Section 401 of the code explained the various abbreviations that appear in these tables. Uses marked "SP" were permitted uses that were subject to site plan and design review. Doc. # 52–4 at 1. Uses marked "SU" were permitted uses that were subject to a further requirement of obtaining a special use permit. Ibid. Approval for "SP" and "SU" uses required a meeting of the Planning and Zoning Commission (PZC), and this approval was subject to conditions set out in § 1102 and § 1103 of the code. See ibid. ; Doc. # 52–5 at 1–2.
In contrast to uses marked as "SP" or "SU", uses marked "P" in the zoning code were permitted without review by the PZC, and their approval required only the ministerial issuance of a building permit.2 Uses marked "X" were prohibited outright, as was any use not enumerated in the code, unless the PZC determined that it was "sufficiently similar to a listed use." Doc. # 52–4 at 1. In addition, section 402A also listed certain permitted "accessory" uses, including any "accessory use customary with and incidental to a permitted use on the same lot." Doc. # 52–7 at 12.
In short, the Town's general zoning code specified a range of permitted and unpermitted uses. Adult entertainment was not mentioned anywhere in the general zoning code. Only the specific 1993 ordinance regulated these establishments by name.
In 1988, Mark Kulungian first opened a billiards hall known as Pool Table Magic in Enfield, Connecticut. Doc. # 52–2 at 9. Pool Table Magic moved to its current location in 2004 at 75 Ella Grasso Boulevard in Windsor Locks. Ibid. ; Doc. # 52–2 at 10–11. This location is within a B–1 zoning district, and it is not within 500 feet of a residential district or 1000 feet of a recreational area. Doc. # 52–1 at 14. Accordingly, there is no indication in the record before me that the Town's adult business ordinance would prohibit Pool Table Magic from engaging in adult-business oriented activity.
The two plaintiffs in this case are two companies connected to Kulungian and the Pool Table Magic business. Plaintiff "Q"–Lungian Enterprises, Inc., operates Pool Table Magic, and it is a tenant of the property at 75 Ella Grasso Boulevard that is owned by co-plaintiff Jessie James Realty, LLC.
On October 12, 2012, Kulungian submitted an application to the PZC for a site plan modification and for zoning approval to add "live entertainment which would include, but not be limited to, exotic [i.e. topless] dancers" at Pool Table Magic. Doc. # 52–1 at 6–7. His application stated that "the proposed accessory use of live entertainment is customary with and incidental to the permitted use as a restaurant." Id. at 7.
On February 7, 2013, the PZC rejected this application, and a week later sent a letter to Kulungian stating that "the proposed accessory use is not a customary use with a restaurant or a restaurant use and is not a listed use on the Permitted Use Tables of Section 402." Doc. # 52–1 at 29. However, the letter suggested that "the newly proposed accessory use for the building might be considered similar to an amusement enterprise or an assembly hall use, and therefore an application for site plan modification and a special use permit should be submitted." Ibid.
Kulungian followed up by submitting a new application on March 5, 2013, seeking a site plan modification and special use permit for the same exotic dancing proposal as in his previous application. Id. at 31–32. This application was also denied by the PZC on August 12, 2013. The PZC wrote a letter to Kulungian stating that the application was rejected "due to the failure of the application to offer any evidence showing the proposed use was permitted under the amusement enterprise provision." Id. at 47.
Plaintiffs then sued. On September 3, 2013, plaintiffs filed this complaint alleging that their First Amendment rights had been violated. Doc. # 1. The complaint advances three different theories of First Amendment violations, somewhat confusingly styled as separate "counts" or "causes of action" of the complaint. First, the complaint alleges that the requirement of the zoning code that plaintiffs apply for a special use permit is an unconstitutional prior restraint on protected speech. Doc. # 1–1 at 12–13. Second, the complaint alleges that the zoning code acts as an unconstitutional restriction on where plaintiffs may engage in live entertainment and does not allow for alternative avenues of communication, as required by the United States Supreme Court in City of Renton v. Playtime Theaters , 475 U.S. 41, 50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1984). Doc. # 1–1 at 13–15. Third, the complaint alleges that the zoning code impermissibly "zones out" plaintiffs' proposed entertainment use, because it prohibits all forms of live entertainment except for dramatic and musical productions. Id. at 15–17. This third "count" also cites Renton , and it seems to serve as a catch-all for a number of mini-theories of First Amendment violation: that the regulations were a content-based restriction on speech, that they were overbroad, that they were not narrowly tailored, that they were not necessary to a compelling government interest, and that they impermissibly restricted people's ability to engage in live entertainment or other First Amendment-protected activities within Windsor Locks. Id. at 15–17. A fourth "count" in the complaint is framed as an administrative appeal of the PZC's decision under state law. Both sides have moved for summary judgment on the first three First Amendment "counts" of the complaint.
The principles governing the Court's review of a motion for summary judgment are well established. Summary judgment may be granted only if "the movant...
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