Cologne v. Westfarms Associates, 260773

• Decision Date: 04 January 1982
• Docket Number: No. 260773,260773
• Citation: 37 Conn.Supp. 90,442 A.2d 471
• Court: Connecticut Superior Court
• Parties: Christine A. COLOGNE et al. v. WESTFARMS ASSOCIATES et al. -New Britain at Hartford

Page 471

442 A.2d 471

37 Conn.Supp. 90

Christine A. COLOGNE et al. v. WESTFARMS ASSOCIATES et al.

No. 260773.

Superior Court of Connecticut, Judicial District of

Hartford-New Britain at Hartford.

Jan. 4, 1982.

Martha Stone, Hartford, Helen Z. Pearl, New Britain, and Martin B. Margulies, New York City, of the New York and Massachusetts bars, for plaintiffs.

Schatz, Schatz, Ribicoff & Kotkin, Hartford, for defendants.

BIELUCH, Judge.

The plaintiffs seek to enjoin the defendants from prohibiting the use by the plaintiffs of a common area in the defendants' shopping mall for the solicitation of signatures supporting a proposed "equal rights" amendment (hereinafter ERA) to the constitution of the United States. By agreement of the parties the application for a temporary injunction was withdrawn in favor of an expedited hearing on a permanent injunction.

The plaintiffs are Christine A. Cologne (hereinafter Cologne), president of the Greater Hartford Area Chapter of the National Organization for Women (hereinafter Hartford NOW) and the Connecticut National Organization for Women (hereinafter Connecticut NOW). Cologne is responsible for the coordination of Hartford NOW's participation in the national ERA campaign sponsored by the National Organization for Women (hereinafter NOW). Connecticut NOW has approximately 3000 members throughout the state, including Cologne, and is also participating in the national campaign for the adoption of the ERA, which succinctly reads: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."

The named defendant, Westfarms Associates (hereinafter Westfarms), is a partnership consisting of several individual defendants. It owns and operates a shopping center, known as Westfarms Mall, located partly in West Hartford and partly in Farmington, Connecticut. Westfarms has hired the Taubman Company, of Troy, Michigan, to be its operating agent for the management of the shopping center. The policies and procedures formulated by the Taubman Company for the operation of the mall are the policies and procedures of Westfarms. John E. Wagner, an employee of the Taubman Company, was the center manager of Westfarms Mall at all times relevant to this action, and in such capacity was responsible for carrying out the policies and procedures established by his employer for the maintenance, promotional activities, preservation and security of the building and surrounding parking lots.

Westfarms Mall is a totally enclosed and climate controlled shopping center open to the public for retail business with those who maintain stores on the premises. The purpose of its development was to provide a building for the leasing and operation of retail stores and for the encouragement of retail sales in the shopping center for the mutual benefit of the owners and occupants. The mall has five entrances and consists of approximately one hundred thirty-two retail establishments, three cinemas and fourteen restaurants. In addition, the mall is secured by three major department stores as anchors at two ends and at the center of one side. Those three department stores are a part of the mall complex and shops even though the portions of the mall building housing them are separately owned by them and have separate exterior entrances. The policies and procedures adopted for the operation of the mall are not binding upon those department stores. The entire parking area is considered common area, although the major portion of the parking area is owned in fee by the three department stores, which have granted cross-easements to the defendants.

The mall is open limited hours. When the retail and department stores close, entry is blocked to all areas except to the restaurants and movie theaters. All entrances are closed from approximately 1:00 a. m. to 8:00 a. m. Employment at the mall is normally provided to approximately 2000 full and part-time employees. This increases to about 3000 during the peak months of November and December. Approximately eleven full-time and four part-time security officers are employed by the defendants. They are uniformed and have police powers within the mall. Those officers are charged with policing the mall and with enforcing the policy promulgated for the premises and in issue before the court. They patrol the building and the parking lots in order to maintain peace and order. Police protection is also provided by the town of Farmington by routine inspections on a daily basis.

Westfarms Mall is the largest shopping center in Connecticut, and one of the largest in New England. Its estimated annual sales for 1980 totaled $73,000,000, not including sales receipts for the three major department stores, which are not available. The mall substantially predominates in the region as to volume of sales and number of patrons. By current estimates approximately 5000 persons visit the mall daily and 10,000 to 20,000 on Saturday or Sunday. Five bus lines provide public transportation to the mall on a regular basis.

The total area of the mall is approximately 96 acres, one-half of which is owned by the defendants and the remainder of which by the three department stores. The mall building covers about 24 acres of the land and contains about 1,000,000 square feet. Gross leasable area of Westfarms Mall presently is 407,200 square feet, in addition to approximately 500,000 square feet owned by the three department stores. The internal common areas of the shopping mall, including walkways and open courtyard areas, contain 84,000 square feet.

There are no public streets or sidewalks within the mall complex or adjacent to the building. The parking areas are not public streets and are not available for parades, public meetings or demonstrations.

The mall is constructed so that all retail establishments are enclosed in a two-level structure, with two major department stores on the north and south ends and a third one to the east of the center or grand court. On the first level, at the north and south ends of the shopping center, are two courts containing 15,600 square feet each. Pedestrian walkways begin at the two end department stores and lead to an open center court, called the grand court. On the second level, the walkways lead to a balcony area that overlooks the grand court. All retail stores leased from the defendants border these walkways and are entered from them. While the three department stores have their own private exterior entranceways, their interior entrances in the mall are from these same bordering walkways.

The grand court, containing approximately 14,000 square feet, is three steps lower than the common walkways and is separated from the immediate vicinity of the stores by the common walkways which form a ring around the court. Four-foot barriers rise from the floor of the grand court and are approximately two feet from the floor of the common walkways. On one side of the grand court, surrounded by fountains, is an elevated stage where many activities and exhibitions take place. On the other side of the grand court is an information booth. Carpeted areas with cushioned benches are located throughout all three courts.

The building, which includes the common walkways and the three open court areas, is designed to make shopping easy and to promote retail sales. In the building a controlled shopping environment is provided, in that the shopper is isolated from vehicular traffic and noise, public sidewalk solicitations and unfavorable weather. Efforts are made by the management and its tenants to attract shoppers and prospective shoppers and to pursue customer motivation by advance scheduling of events designed to attract public interest. The grand or center court of the mall is consistently used by the management and its tenants to stage such events of public interest.

One of Wagner's duties as center manager was to administer the policy adopted by Westfarms entitled, "TRESPASSING-DEMONSTRATIONS." This policy states as follows:

"ANY UNAUTHORIZED ACTIVITY (EXCLUSIVE OF LABOR ACTIVITY) IN THE COMMON AREAS NOT DIRECTLY RELATED TO THE PURPOSE FOR WHICH WESTFARMS WAS DEVELOPED REGARDLESS OF WHETHER THAT ACTIVITY IS CONDUCTED BY ONE OR MORE PERSONS AND REGARDLESS OF WHETHER THAT ACTIVITY IS PEACEFUL OR NON-PEACEFUL WILL BE CONSIDERED UNLAWFUL TRESPASSING AND IT WILL BE TREATED AS SUCH BY THE OWNERS AND MANAGING AGENTS OF WESTFARMS. BY WAY OF EXAMPLE, AND NOT TO BE A COMPLETE LIST, THE FOLLOWING ARE ACTIVITIES WHICH CONSTITUTE TRESPASSING AND WILL NOT BE PERMITTED: SOLICITING, SPEECH MAKING, DISTRIBUTING HANDBILLS OR OTHER LITERATURE, SEEKING SIGNATURES ON PETITIONS, OR TAKING SURVEYS (OR ANYTHING ELSE WHICH MIGHT BE CLASSIFIED AS EXPRESSIVE ACTIVITY).

OUR POLICY IS BASED ON THE UNITED STATES SUPREME COURT RULING IN THE CASE OF Lloyd Corp. v. Tanner, 407 U.S. 551 (, 92 S.CT. 2219, 33 L.ED.2D 131) (1972). WESTFARMS IS PREPARED TO TAKE EVERY LEGAL AVENUE TO PREVENT SUCH TRESPASS AND WHEN REQUIRED BY THE POLICE, WILL PROSECUTE VIOLATORS TO THE FULL EXTENT OF THE LAW."

It applies to all of the mall property and is intended by the defendants to avoid any annoyance to customers, the creation of litter, and the potential creation of disorder, as well as to allow only activities which are compatible with the purpose of the mall and the atmosphere sought to be preserved by the defendants.

NOW has organized a nationwide campaign to ensure ratification of the ERA by its June 30, 1982 deadline. The campaign consists of two parts: one, seeking millions of signatures for petitions in support of the ERA to be sent to the president of the United States and, two, soliciting membership in the form of a two dollar contribution to cover costs of the NOW Message Brigade, a computerized list of ERA supporters who can be mobilized by NOW to help persuade political figures to support the ERA. Because of the large volume of people who daily...