Keepers, Inc. v. City of Milford

• Decision Date: 30 March 2013
• Docket Number: Civ. No. 3:07CV1231 (AWT).
• Citation: 944 F.Supp.2d 129
• Court: U.S. District Court — District of Connecticut
• Parties: KEEPERS, INC., d/b/a Keepers, f/k/a Sidepockets, Inc., a Connecticut Corporation; and After Dark LLC., d/b/a Romantix Adult Emporium, a Connecticut Limited Liability Company, Plaintiffs, v. The CITY OF MILFORD, CONNECTICUT, a Municipal Corporation, Defendant.

944 F.Supp.2d 129

KEEPERS, INC., d/b/a Keepers, f/k/a Sidepockets, Inc., a Connecticut Corporation; and After Dark LLC., d/b/a Romantix Adult Emporium, a Connecticut Limited Liability Company, Plaintiffs,

v.The CITY OF MILFORD, CONNECTICUT, a Municipal Corporation, Defendant.

Civ. No. 3:07CV1231 (AWT).

United States District Court,

D. Connecticut.

March 30, 2013.

Bradley J. Reich, Law Offices of Bradley J. Reich, Denver, CO, Bradley J. Shafer, Shafer & Associates, PC, Lansing, MI, Daniel A. Silver, Law Office of Daniel A. Silver, New Britain, CT, for Plaintiffs.

James Newhall Tallberg, Karsten & Tallberg, LLC, West Hartford, CT, Scott D. Bergthold, Stephen S. Duggins, Law Office of Scott D. Bergthold, PLLC, Chattanooga, TN, for Defendant.

RULING ON MOTIONS FOR SUMMARY JUDGMENT

ALVIN W. THOMPSON, District Judge.

Plaintiff Keepers, Inc. (“Keepers”) is a Connecticut corporation operating a cabaret-style nightclub in Milford. The establishment features live clothed and semi-nude dancing for adult patrons. Plaintiff After Dark LLC (“After Dark”) does business as Romantix Adult Emporium, a retail adult entertainment establishment that sells, exhibits, and distributes erotic books, magazines, video tapes and motion picture filmfare. Defendant City of Milford (the “City”) is a municipal corporation chartered under the laws of the State of Connecticut. The parties have filed cross motions for summary judgment relating to the constitutionality of two versions of a City ordinance regulating sexually oriented businesses.

The plaintiffs challenge the constitutionality of the ordinance arguing that it violates the First Amendment (as an impermissible prior restraint, an undue burden on protected expression, overbroad, and an impermissible impairment on the right to freely associate); the Fourth Amendment; the Takings Clause of the Fifth Amendment; the Ninth Amendment; and the Fourteenth Amendment (as vague as-applied, facially vague, and causing a deprivation of liberty interests without due process). They also contend it violates Conn. Gen. Stat. § 8–2.

For the reasons set forth below, the plaintiffs' motion for partial summary judgment is being granted in part and denied in part, and the defendant's motion for summary judgment is being granted in part and denied in part.

I. FACTUAL BACKGROUND

Joseph Regensberger assumed ownership of Keepers in approximately January 2001. The business was operating as a restaurant and bar at the time under the name “Sidepockets.” In 2003, Regensberger decided to convert Sidepockets into an adult cabaret. This renovation involved removing the kitchen to make room for a dressing room for dancers. The conversion also included building a stage, putting in carpets, building a DJ booth, and making a VIP area. At the time, adult cabarets such as Keepers were subject to Milford's Ordinance Regulating Adult Oriented Establishments, promulgated in 1996.

In 2003, the City passed an amendment to Chapter 2.3 of the City Ordinance Regulating Adult–Oriented Establishments. Keepers believed the provisions of the 2003 ordinance to be more restrictive than those of the 1996 ordinance.

Around this time, Regensberger agreed to a suspension of Keepers' liquor license for four days as a result of alleged violations on the premises such as dancers improperly exposing and touching themselves, and various other violations occurring in March 2003. In 2007, Regensberger lost his liquor license in Connecticut as a result of prostitution activities occurring in 2005 at another adult entertainment business he owned. His inability to hold a liquor license, coupled with the more restrictive 2003 ordinance, contributed to Regensberger's ultimate decision to sell Keepers to one of his employees, Angela Silano, for $250,000 in 2008. Regensberger assists Silano in this litigation in an unpaid capacity.

Romantix Adult Emporium (operated by After Dark LLC) has a main retail floor where merchandise is displayed, and an adult “arcade” in the rear of the establishment which consists of enclosed private booths outfitted for the viewing of adult movies. After Dark joins Keepers in its claims relating to the 2007 ordinance, but not the 2003 ordinance.

In 2003, the Milford Board of Aldermen voted to amend the 1996 Ordinance Regulating Adult–Oriented Establishments. At the meeting, various members of the community spoke in favor of the amendment, voicing concerns about the potential deleterious effect sexually oriented businesses ¹ might have on their community. At the meeting, the then-city attorney Marilyn Lipton submitted materials for the Board to consider regarding the secondary effects of sexually oriented businesses in formulating the amendment. In enacting the amendment in August 2003, the Board stated that “this ordinance is based on evidence of the adverse secondary effects of adult uses that is within the common knowledge of municipalities and is widely reported in judicial opinions, media reports, land use studies, and crime impact reports made available to the Board of Aldermen.” Milford, Conn., Ordinances § 2.3–1(1) (2003) (Pls.' Mem. Supp. Mot. Summ. J. Ex. B). Among other changes, the 2003 ordinance included a section entitled “Additional regulations concerning live public nudity on premises.” Id. at § 2.3–3(7). This section provides:

A. It shall be a violation of this Chapter for a patron, employee, or any other person to knowingly or intentionally, in an adult-oriented establishment, appear in a state of nudity, regardless of whether such public nudity is expressive in nature.

B. It shall be a violation of this Chapter for a person to knowingly or intentionally in an adult-oriented establishment, appear in a semi-nude condition unless the person is an employee who, while semi-nude, shall be at least six (6) feet from any patron or customer and on a stage at least eighteen (18) inches from the floor....

C. It shall be a violation of this Chapter for any employee, while semi-nude in an adult-oriented establishment, to knowingly or intentionally receive any pay or gratuity by direct physical contact with any patron or customer or for any patron or customer to knowingly or intentionally pay or give any gratuity by direct physical contact with any employee, while said employee is semi-nude in the adult-oriented establishment.

D. It shall be a violation of this Chapter for any employee, while semi-nude in an adult-oriented establishment, to knowingly or intentionally touch a customer or the clothing of a customer.

Id. The 2003 ordinance also included language requiring sexually oriented businesses to allow periodic inspections by the City, see id. at § 2.3–3(6), and preventing applicants for a license under the ordinance from being approved if the applicant has been convicted of, or pled nolo contendre to, certain sexually-related crimes. See id. at § 2.3–4(3)(i).

Keepers filed suit in 2003, alleging that these regulations are unconstitutional. ( See Sidepockets, Inc., d/b/a Keepers v. City of Milford, No. 3:03–cv–2134(AWT).) During the pendency of the litigation, the City repealed the 2003 ordinance and enacted a superseding ordinance on May 7, 2007. ( See Milford, Conn., ordinances ch. 2.3 (2007) (Pls.' Mot. Summ. J. Ex. C.).) The City then filed a motion to dismiss Keepers' case as moot, which was denied.

The Board of Aldermen considered additional material on secondary effects when passing the 2007 ordinance, but the ordinance retains roughly similar prohibitions on nudity, touching, space requirements between patrons and dancers (“buffer zones”), receipt of gratuity, and licensing as were in the 2003 ordinance. ( See ch. 2.3 (2007).) The 2007 ordinance also places more stringent requirements on operators of booths intended to exhibit sexually explicit films or videos (“adult arcades”). For instance, the 2007 ordinance requires brighter illumination in viewing booths and requires that:

the interior of the premises shall be configured in such a manner that there is an unobstructed view from an operator's station of every area of the premises, including the interior of each viewing room ... to which any patron is permitted access for any purpose.... The view required ... must be by direct line of sight from the operator's station. It is the duty of the operator to ensure that at least one employee is on duty and situated in each operator's station at all times that any patron is on the premises. It shall be the duty of the operator ... to ensure that the view area specified in this paragraph remains unobstructed by any doors, curtains, walls, merchandise, display racks or other materials or enclosures at all times that any patron is present ....

§ 2.3–13(a)(7) (2007). Keepers, joined by After Dark, filed a second action challenging the constitutionality of the 2007 ordinance. The claims in the previous suit concerning the 2003 ordinance were joined with the claims in this case.

II. LEGAL STANDARD

A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(a). See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir.1994). Rule 56(c) “mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548.

When ruling on a motion for summary judgment, the court must respect the province of the jury. The court, therefore, may not try issues of fact. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Donahue v. Windsor Locks Bd. of Fire Commis., 834...