Morascini v. Commissioner of Public Safety

• Decision Date: 07 May 1996
• Docket Number: No. 15270,15270
• Court: Connecticut Supreme Court
• Parties: David MORASCINI v. COMMISSIONER OF PUBLIC SAFETY et al.

Page 1340

675 A.2d 1340

236 Conn. 781

David MORASCINI v. COMMISSIONER OF PUBLIC SAFETY et al.

No. 15270.

Supreme Court of Connecticut.

Argued Nov. 28, 1995.

Decided May 7, 1996.

Robert W. Werner, Associate Attorney General, with whom were Carolyn K. Querijero and Margaret Q. Chapple, Assistant Attorneys General, and, on the brief, Richard Blumenthal, Attorney General, for appellants (defendants).

Martin B. Margulies, Bridgeport, with whom were Philip D. Tegeler and, on the brief, Martha Stone, Hartford, for appellee (plaintiff).

Karen K. Buffkin and Pedro E. Segarra, Hartford, filed a brief for the city of Hartford as amicus curiae.

Alan Neigher and Judith M. Trutt, Ridgefeld, filed a brief for Real Art Ways et al. as amici curiae.

Mary-Michelle U. Hirschoff, Bethany, filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON, NORCOTT, KATZ and PALMER, JJ.

CALLAHAN, Associate Justice.

The sole issue in this appeal is whether the trial court properly concluded that General Statutes § 7-284 ¹ is unconstitutional as applied to a rap music concert at the plaintiff's nightclub and as it would apply thereafter to concerts and other forms of expressive conduct. We conclude that the statute is not unconstitutional either on its face or as it applied to the plaintiff.

The plaintiff is David Morascini, who, in 1990, was the owner and operator of the Palace Cafe and Restaurant (Palace), a nightclub located in Stafford Springs. The defendants are Nicholas A. Cioffi, the commissioner of public safety and the commanding officer for the division of the Connecticut state police, Colonel Ray Ouellette, the deputy commissioner of the division of state police, Lieutenant Peter Plante, the commanding officer of Troop C of the Connecticut state police, and Major John Jacewicz, the eastern district commander of the Connecticut state police.

The following facts are undisputed. On October 8, 1990, the plaintiff contracted with the rap music group 2 Live Crew to perform at the Palace on October 12, 1990. In the late afternoon of October 10, the plaintiff contacted the state police barracks in Stafford Springs seeking to obtain a number of metal detectors for use at the performance. It was only then that the state police learned of the imminent 2 Live Crew appearance at the Palace.

On the morning of October 11, with only a short time remaining before the 2 Live Crew concert, the state police acted to ensure that the concert would be safe for all concerned. The police initially met with the fire marshall to discuss emergency lights, exits and occupancy limits for the Palace. They then contacted the highway department to arrange for barricades to keep concertgoers safe from traffic on adjacent streets and called area hospitals to advise them of the event. The state police also toured the Palace to ensure compliance with the fire code.

In the course of their preparations, the state police received information from police departments in other states that had previously hosted 2 Live Crew concerts. This information included three newspaper articles sent by the Dallas, Texas police department relating to a "furniture throwing melee at an aborted 2 Live Crew concert" ² in Dallas that had caused over $100,000 in damage. The articles reported that it was necessary to call approximately fifty police officers in riot gear to the scene when the private security force of twenty-seven guards was unable to control the crowd. The state police also received an investigative report compiled by the chief of the Westerly, Rhode Island police department. That report detailed the public safety concerns that had followed 2 Live Crew to the various cities on its tour. The report noted that "[e]ach community contacted stressed that they had indeed received information as to large appearances and were more concerned as to problems outside rather than problems inside." The report also indicated that 2 Live Crew's promoter represented to the Westerly chief of police that "a large amount of weapons" had been confiscated from 2 Live Crew patrons at previous concerts. Lastly, the report revealed that two of the members of 2 Live Crew had been arrested on June 10, 1990, during a performance in Hollywood, Florida. ³

The state police also received information as to the possibility that a street gang would attend the concert and cause problems. In addition, there were no advance ticket sales for the show, and neither the police nor the plaintiff knew how many people would seek to attend the concert. This uncertainty caused concern regarding traffic problems and the potential negative reactions of those who might arrive after the 310 available tickets for the show had been sold.

In light of the above information and the related public safety concerns, state police officials recommended to the then commissioner of public safety, Bernard Sullivan, that state police be assigned to the Palace for the concert. Sullivan agreed with the recommendation and determined, pursuant to § 7-284, the amount of necessary police services. Initially, Sullivan intended to bill the plaintiff for those police services in advance of the concert, but later, after seeking and receiving the advice of the state attorney general, he agreed not to bill the plaintiff until after the performance.

The concert ultimately was held as scheduled with assigned state police and auxiliary troopers present. As in Dallas, concertgoers became agitated when 2 Live Crew arrived approximately two hours later than scheduled and temporarily walked out after a monetary dispute with management. Starting at approximately 1:30 a.m. on October 13, however, the group finally performed without serious incident. Approximately one month later, the plaintiff received a bill for $1991.74 for the police services that had been provided at the concert.

The plaintiff refused to pay the bill and subsequently filed this action seeking: (1) a declaratory judgment that § 7-284 is unconstitutional under both the state ⁴ and the federal constitutions as applied to the October, 1990 2 Live Crew concert and to other concerts in the future; (2) a declaratory judgment that § 7-284 does not apply to concerts and other events not specifically enumerated therein; (3) a preliminary and permanent injunction prohibiting the state police from collecting fees for police services rendered at the 2 Live Crew concert and at future activities involving protected speech; and (4) an award of the plaintiff's costs and attorney's fees under 42 U.S.C. § 1988. The defendants filed a counterclaim, alleging that, pursuant to § 7-284, they had provided the plaintiff with police services for which they were entitled to be paid.

The parties filed motions for summary judgment. The trial court denied the defendants' motion but granted the plaintiff's motion, concluding that "the application of § 7-284 to performances of music and other protected speech, including the concert in this case, treats 'the First Amendment as a privilege to be bought rather than a right to be enjoyed'; Invisible Empire Knights of the Ku Klux Klan v. West Haven, [600 F.Supp. 1427, 1434 (D.Conn.1985) ]; and is therefore unconstitutional." Morascini v. Commissioner of Public Safety, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV910392693, 1995 WL 91432 (February 17, 1995). The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(b)(2), which provides for a direct appeal to this court "in any matter where the superior court declares invalid a state statute or a provision of the state constitution." We reverse the judgment of the trial court.

I

We first address whether the trial court correctly concluded that § 7-284 applies to concerts. ⁵ By its terms, § 7-284 requires the proper police official ⁶ to furnish necessary police protection, to be paid for by the promoter, at "any boxing bout or wrestling match, place of public amusement, sport contest or hockey, baseball or basketball game, or any other exhibition or contest, which is being held or is to be held in any municipality...." We conclude that the Palace is a "place of public amusement," that concerts are "exhibition[s]" within the meaning of § 7-284 and that the statute is therefore applicable to concerts.

"The word 'amusement' means anything that amuses, as an entertainment or spectacle.... Radcliffe v. Query, 153 S.C. 76, 150 S.E. 352 [1929]." 4 Am.Jur.2d 121 n. 1, Amusements and Exhibitions § 1. "A statute providing for the regulation of places of amusement includes all classes of public exhibitions, such as are usually conducted upon a stage for the observation and amusement of the public. Hence, a place of public amusement where concerts are given upon a stage is within its terms. New York v. Eden Musee American Co., 102 N.Y. 593, 8 N.E. 40 [1886]." Id. "Theaters and concert halls are places of public amusement...." Id., pp. 121-22, citing People ex rel. McShane v. Keller, 96 Misc. 92, 161 N.Y.S. 132 (1916). A "place of amusement" is "[a] place to which people resort for diversion or pleasure, some being Exhibitive and others participative, the former being represented by theaters, stadiums, and so forth and the latter by skating rinks, bowling alleys and so forth." Ballentine's Law Dictionary (3d Ed.1969). We conclude that a nightclub that stages performances for the entertainment of its patrons is a "place of public amusement" as that phrase is commonly understood.

Moreover, concerts, by their very nature, are "exhibition[s]" as that phrase is commonly understood. To exhibit is "[t]o show or display...." Black's Law Dictionary (6th Ed.1990). An exhibition is "[a] fair; a show; a presentation of works of art or of trade and commerce for viewing by the...