Centerfolds, Inc. v. Town of Berlin
| Decision Date | 20 December 2004 |
| Docket Number | No. 3:02CV2006(WWE).,3:02CV2006(WWE). |
| Court | U.S. District Court — District of Connecticut |
| Parties | CENTERFOLDS, INC. and Mario Pirozzoli, Jr. Plaintiffs, v. TOWN OF BERLIN, Bonnie L. Therrien, Ida Ragazzi, Joanne Ward, Joseph Aresimowicz and Linda Cimadon, Defendants. |
Norman A. Pattis, Williams & Pattis, New Haven, CT, for Plaintiffs.
Thomas R. Gerarde, Howd & Ludorf, Hartford, CT, for Defendants.
RULING ON MOTION FOR SUMMARY JUDGMENT
This action concerns the defendant Town of Berlin's regulation of sexually oriented businesses ("SOBs") through a municipal ordinance. Specifically, the plaintiffs, Centerfolds, Inc., and its primary shareholder, Mario Pirozzoli, allege that 1) the ordinance is impermissibly content-based and overbroad in violation of the First Amendment of the United States Constitution; and 2) that the Town Manager, defendant Bonnie Therrien, and the four council members, defendants Ida Ragazzi, Joseph Aresimowicz, Joanne Ward, and Linda Cimadon, acted to deprive them of property without due process in violation of the Fourteenth Amendment. Plaintiffs request relief in the form of compensatory and punitive damages, an injunction to prohibit the enforcement of the ordinance against the plaintiffs, and a declaratory ruling finding that the ordinance is unconstitutional.
Defendants have moved for summary judgment on the complaint, arguing that no constitutional violation has occurred. Plaintiffs have filed an opposition to that motion, which the Court will construe as a cross-motion for summary judgment on the facial challenges to the ordinance's constitutionality.
The Court will also instruct the plaintiffs to move on any claims that have not been fully resolved by this decision. For the following reasons, defendants' motion for summary judgment will be granted in part and denied in part.
The parties have submitted briefs, statements of facts, and supporting exhibits. These materials reveal the following relevant undisputed facts.
On October 19, 1999, the Berlin Town Council passed a moratorium on all new SOBs pending the Ordinance Committee's research and drafting of an ordinance to regulate such businesses. In June, 2000, the Ordinance Committee presented its proposed ordinance accompanied by a "Sexually Oriented Business Summary." The Summary cites the experiences of other municipalities in dealing with the negative effects of such businesses if permitted without regulation. It lists negative secondary effects, including "an increase in high-risk sexual activity and prostitution, resulting in higher risk of public exposure to communicable diseases and AIDS, property devaluement, increased criminal activity, and a decline of retail trade." It states:
The Town of Berlin, like other municipalities, is susceptible to the proven secondary effects of SOBs. Of particular concern to Berlin is the existence of the Berlin Turnpike, a major commercial thoroughfare that bisects the Town. The Berlin Turnpike has been a magnet for SOBs and, with its increased development, will continue to attract these types of businesses. Other areas of Berlin have been and will continue to be targets of SOBs.
The Summary also provides an overview of First Amendment jurisprudence and delineates the ordinance's underlying purpose and intent:
The Town Council for the Town of Berlin wishes to protect its citizens and community from the adverse secondary effects of the SOBs that have been experienced in other communities. These harmful secondary effects include: (1) an increase in the risk of communicable diseases, including AIDS and Hepatitis B; (2) an increase in crime, especially sex-related crime; (3) decline in property value; and (4) unsanitary public places. The Town has a substantial government interest in protecting, preserving and promoting the health, safety and welfare of its citizens and those persons who patronize Berlin businesses and establishments.
On June 20, 2000, the Town Council passed the proposed ordinance regulating SOBs. In Section 1(e), the ordinance declares that its purpose and intent is to "regulate sexually oriented businesses to promote the health, safety and general welfare of the residents of the Town and to establish reasonable and uniform regulations of such businesses in order to reduce or eliminate the adverse secondary effects of such sexually oriented businesses...."
In Section 4(a)(1), the Town's ordinance provides:
No licensee, operator or employee of a sexually oriented business shall perform or permit to be performed, offer to perform, or allow patrons to perform any live performance or conduct featuring any specified sexual activities on the licensed premises.
In subsection (gg) of Section 2, the ordinance defines "specified sexual activities" as:
simulated or actual (1) showing of human genitals in a state of sexual stimulation or arousal, (2) acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio or cunnilingus, (3) fondling or erotic touching of another person's genitals, pubic region, buttocks or female breasts, (4) lap dancing, or (5) excretory function as part of or in connection with any of such activities.
In Section 5, the ordinance states:
No entertainer, either before, during or after a performance, shall have physical contact with any patron of a sexually oriented business while on a licensed premises.
The ordinance prohibits installation of "enclosed booths, cubicles, rooms or stalls within sexually oriented businesses, for whatever purpose, but especially for the purpose of providing for the secluded viewing of adult-oriented motion pictures or other types of adult entertainment." Section 4(a)(3).
In Section 10, the ordinance provides that the Town Manager "shall be responsible for investigating, granting, denying, renewing, suspending and revoking all sexually oriented business applications and licenses...." The application is forwarded to the Chief of Police, Fire Marshal, Chief Building Official, Director of Health and Zoning Enforcement Officer for the relevant compliance investigations.
Section 11 states that if a renewal application and fee are timely filed 30 days prior to expiration of the license, the Town Manager:
shall, prior to the expiration of the previous license, renew the license for the same licensee at the same location for an additional one (1) year, unless (1) the random inspection reports in the licensee's file reveal uncorrected violations of this Ordinance or uncorrected violations of any fire, building, health or zoning codes or regulations, of which the licensee has received written notice, or (2) any condition under Section 10(d) herein that could have been grounds for denial of the original application has since become true.
A non-renewed licensee has 30 days to correct any noticed violations. However, Section 11 provides further that:
in no instance shall a renewal be issued to a licensee who, within the one (1) year period of the previous license (1) has had two (2) or more material violations of this Ordinance, to which the licensee has received written notice, or (2) has had one (1) or more uncorrected material violations of this Ordinance pending for over thirty (30) days.
If a license is not "renewed for any violation of this Ordinance, no license shall issue for the same licensee for five (5) years from the expiration of the previous license." Pursuant to Section 13, a decision of non-renewal may be appealed at a public hearing. At the hearing, the aggrieved party may present evidence and cross examine Town Officials. Section 13(d) of the Town ordinance provides that after the public hearing, the Town Council "shall enter its vote to either sustain or overrule" the Town Manager's licensing decision, and it "shall issue a written notice of its decision, stating the reasons therefore...." If the licensing decision is voted overruled, the Town Manager must reverse the previous licensing decision.
The decision of the Town Council may be appealed to the Superior Court within twenty (20) days of such written notice of such decision, and during the "pendency of any appeal of a non-renewal, suspension or revocation, the operations of the sexually oriented business may be maintained by the licensee, unless otherwise ordered by the Superior Court."
In July, 2002, defendant Bonnie Therrien, the Town Manager, made a Freedom of Information Act request to the State Department of Consumer Protection seeking investigative reports by the Liquor Division relative to "lap dances" and other sexual activities between employees and patrons occurring at Centerfolds, a licensed SOB located in Berlin. Therrien reviewed the reports and the Town's ordinance. She found that the activities documented in the report violated the ordinance's prohibitions against "specified sexual activities" and physical contact between entertainers and patrons.
By letter dated July 15, 2002, Ms. Therrien notified plaintiffs of the revocation of their business license pursuant to Section 12(b) of the ordinance that "the Town Manager shall revoke any license" where a licensee "knowingly allowed any live performance or conduct featuring any specified sexual activities to occur on the licensed premises...." She also advised plaintiffs that, pursuant to Section 12(c), the license revocation was effective ten days after receipt of the notice, and that plaintiffs could contest the revocation by filing a written application for a public hearing with the Town Clerk within five days of the notice.
Centerfolds appealed the Town Manager's decision and a public hearing was held on August 27, 2002, at which hearing Centerfolds was represented by counsel. During the pendency of this appeal process, the revocation of Centerfolds' license was stayed. Accordingly, Centerfolds was not required to close its business despite the revocation.
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