Christy v. Servitto

• Decision Date: 24 October 1988
• Docket Number: Civ. A. No. 83-5418 PH.
• Citation: 699 F. Supp. 618
• Parties: Karen CHRISTY and Christy Newsreel Services, Inc., Plaintiffs, v. Michael SERVITTO, George O. Bruggeman and The City of Warren, Defendants.
• Court: U.S. District Court — Western District of Michigan

699 F. Supp. 618

Karen CHRISTY and Christy Newsreel Services, Inc., Plaintiffs, v. Michael SERVITTO, George O. Bruggeman and The City of Warren, Defendants.

Civ. A. No. 83-5418 PH.

United States District Court, E.D. Michigan, S.D.

October 24, 1988.

Franklin Richard Brussow, Brussow & Krause, Lansing, Mich., for plaintiffs.

Janice Hildenbrand, Ulanoff, Ross & Wesley, Southfield, Mich., Matthew A. Seward, Detroit, Mich., Walter A. Jakubowski, Dave Dalenberg, City Atty.'s Office, Warren, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

Nearly three years ago, this Court, in 15192 Thirteen Mile Road Inc. v. City of Warren, 626 F.Supp. 803 (E.D.Mich.1985), was called upon to review various constitutional challenges to section 14.02 of the Warren zoning ordinance. Section 14.02 regulated the ability of adult businesses to locate within the City of Warren. The plaintiffs, five different corporations whose principals proposed to open adult businesses in Warren, attacked the ordinance as void for vagueness, overbroad, and deficient under United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). After conducting two hearings for preliminary injunctions and having taken testimony for nearly four weeks, the Court upheld the portion of section 14.02 prohibiting an adult business from locating within 500 feet of a residential use, an area zoned residential, and from within 1000 feet of a church or school. The Court struck down as unconstitutionally vague, however, the site plan review procedure and procedure for special land use approval because they vested an improper degree of discretion in the reviewing officials.

While 15192 Thirteen Mile Road was still pending, Karen Christy, one of the principals in 15192 Thirteen Mile Road, and Christy Newsreel Services, Inc. brought this action alleging that defendants precluded them from using the building located at 5583 East Eight Mile to open a retail video sales and service store in violation of the first, fifth and fourteenth amendments to the United States Constitution. The Court refused to consolidate this action with 15192 Thirteen Mile Road because this case raised difficult questions concerning the application of section 14.02 and other city regulations not present in the other actions consolidated under 15192 Thirteen Mile Road.

The Court held 46 days of trial in this matter and admitted approximately 200 exhibits. Having reserved its ruling on defendants' motion at trial for an involuntary dismissal pursuant to Rule 41(b), the Court hereby issues its Findings of Fact and Conclusions of Law in accordance with Rule 52(a).

I. FINDINGS OF FACT

A. Introduction

(1) Karen Christy is the sole shareholder of Christy Newsreel Services, Inc. (Newsreel Services), a Michigan corporation formed on November 1, 1982. Christy, through Newsreel Services, presently operates three adult entertainment businesses: the "Velvet Touch, Video and Gift Boutique," in Lansing, "Unique Creations," in Ypsilanti, and the "Velvet Touch, Video and Gift Boutique," located on I-69 and referred to at trial as the "Charlotte store." She also is attempting to open two other stores in the Lansing area. Newsreel Services presently employs approximately 20-30 people.

(2) Christy resides with and has had a social and business relationship with Whitman since 1978; Whitman also is engaged in the operation of several adult oriented businesses throughout the state.. Whitman presently operates five such stores through Executive Art, Inc.; one each in Lansing, Kalamazoo, Wyoming, Mt. Morris and Warren.¹ Whitman also operates a store in Parma and a store in Flint through a separate corporation, Fashion Design. The sign above each of Whitman's stores reads "Velvet Touch."

(3) Michael Servitto was appointed Director of the City of Warren's Department of Public Service in November 1981, by Mayor-Elect James Randlett, and served in that position until Randlett was defeated in the mayoral election in November 1985.

As Director of the Department of Public Service, Servitto supervised eight divisions: Building and Safety Engineering, Water, Department of Public Works, Service, Sanitation, Engineering, Sewage and Treatment, and Building Maintenance. Servitto testified that work associated with the Water Division and Department of Public Works consumed the majority of his time.

(4) George O. Bruggeman is Superintendent of the Division of Buildings and Safety Engineering (building department), one of the eight divisions within the Department of Public Service. The building department contains five separate bureaus: Electrical, Building, Plumbing, Heating/Cooling and Zoning. Each bureau employs one or more inspectors who are charged with the responsibility of implementing the City's ordinances and adopted trade codes which regulate the occupancy of buildings located in the City of Warren.

(5) On December 12, 1978, the Warren City Council adopted by reference, with certain modifications, the Basic Building Code, 1978 Edition, published by the Building Officials and Code Administrators Information, Inc. (BOCA). The BOCA Basic Building Code went into effect on January 1, 1979. The 1981 BOCA Basic Building Code was adopted by reference, again with certain modifications, by the City Council, effective June 13, 1983. Prior to January 1, 1979, the building department applied the Warren Building Code.

The electrical inspectors apply the Warren Electrical Ordinance, the National Electrical Code (N.E.C.) and the Uniform Reciprocal Rules (adopted by the Uniform Reciprocal Council of Southeast Michigan Communities). The zoning inspectors apply the Warren zoning ordinance.

(6) Also within the building department but independent from the other five bureaus is the position of City Plan Examiner. The Plan Examiner reviews building permit applications and any accompanying plans to ensure the application and plans conform to the applicable code provisions.

(7) Under section 119.2 of both the 1978 and 1981 edition of the BOCA Basic Building Code (BOCA Code), an owner is required to obtain a "certificate of use and occupancy," whenever an existing building is "enlarged, extended or altered to change from one use to another or to a different use within the same use group in whole or in part,...." A certificate of use and occupancy for an existing building is referred to in the City of Warren as a certificate of reoccupancy or as a certificate of occupancy for reoccupancy. "Use group" is defined in section 201.3 as the "classification of a building or structure based on the purpose for which it is used." Section 202.1 establishes nine use groups: (1) Group A: assembly; (2) Group B: business; (3) Group F: factory and industrial; (4) Group H: high hazard; (5) Group I: institutional; (6) Group M: merchantile; (7) Group R: residential; (8) Group S: storage; and (9) Group T: temporary and miscellaneous. "Use" is defined in section 201.3 as "The purpose for which the building or structure is designed, used or intended to be used."

(8) In order to obtain a certificate of occupancy, an owner of a building or his agent must first obtain a "special permit" requesting reoccupancy inspections. Once the special permit is secured, a date is established in which the owner or agent agrees to be on the premises during a specific period of time for the inspections. Once the inspections are completed, the owner or agent is then apprised of any outstanding violations either by phone or mail by each of the inspectors. Depending on the nature of the violation, the owner or agent may need to obtain a permit from the particular bureau to remedy the violation. It is not uncommon for a building to require several inspections before all the violations are remedied. Once all the violations are corrected and each inspector has issued his approval, a certificate of occupancy is issued.

(9) The determination of whether a building permit is necessary to do certain work, regardless of whether the planned work is to remedy violations resulting from a request for a reoccupancy inspection or simply to remodel the premises, is governed by section 112.1 of the BOCA Code:

112.1 When permit is required: It shall be unlawful to construct, enlarge, alter or demolish a structure; or change the occupancy of a building or structure requiring greater strength, exitway or sanitary provisions; or to change to another use; or to install or alter any equipment for which provision is made or the installation of which is regulated by this code, without first filing an application with the building official in writing and obtaining the required permit therefor; except that ordinary repairs, as defined in Section 102.0, which do not involve any violation of this code shall be exempt from this provision.

Section 102.1 pertaining to ordinary repairs states in relevant part:

102.1 General: Ordinary repairs to structures may be made without application or notice to the building official; but such repairs shall not include the cutting away of any wall, partition or portion thereof, the removal or cutting of any structural beam or bearing support, or the removal or change of any required means of egress, or rearrangement of parts of a structure affecting the exitway requirements;....

Applications for a building permit are provided at the building department. In filling out an application, section 112.4 provides:

112.4 Description of work: The application shall contain a general description of the proposed work, its location, the use and occupancy of all parts of the building or structure and of all portions of the site or lot not covered by the building or structure, and such additional information as may be required by the building official.

Section 112.5 requires the submission of specifications and plans along with the permit applications:

112.5 Plans and specifications: The application for the permit shall be accompanied by

...