NEEDREPLACE, Civil No. 3:11cv1148 (JBA).

CourtNew York District Court
Writing for the CourtJANET BOND ARTERTON
Citation7 F.Supp.3d 194
PartiesSammer KAROUT, Plaintiff, v. A. Dennis McBRIDE, et al., Defendants.
Decision Date21 March 2014
Docket NumberCivil No. 3:11cv1148 (JBA).

7 F.Supp.3d 194

Sammer KAROUT, Plaintiff,
A. Dennis McBRIDE, et al., Defendants.

Civil No. 3:11cv1148 (JBA).

United States District Court, D. Connecticut.

Signed March 21, 2014

Motion granted.

[7 F.Supp.3d 196]

William Sylvester Palmieri, Law Offices of William S. Palmieri, LLC, New Haven, CT, for Plaintiff.

Melinda A. Powell, Rose Kallor LLP, Hartford, CT, for Defendants.



Plaintiff Sammer Karout filed suit against the City of Milford (the “City”) and A. Dennis McBride, the Director of the Milford Health Department (the “Health Department”), David Sulkis, the City Planner, and Susan Shaw, the Chair of the Planning and Zoning Board, alleging in Count One violations of equal protection as guaranteed by the Fourteenth Amendment of the United States Constitution by all Defendants. Plaintiff also alleges municipal liability against the City (Count Two), Intentional Infliction of Emotional Distress (Count Three), and Tortious Interference with Business Relations (Count Four). Defendants move [Doc. # 52] for summary judgment. For the reasons that follow, Defendants' motion is granted.1

I. Factual Allegations

Plaintiff, a Syrian-born Muslim with dual American and Syrian citizenship, is the owner of two businesses in Milford, Connecticut. (Karout Dep. Tr., Exs. 1–2 to Pl.'s Loc. R. 56(a)2 Stmt. [Doc. # 64–3] at 7, 36–37.) Since 2008, Plaintiff has owned and operated the Triple Olive Tree, a Middle Eastern grocery store and restaurant. ( Id. at 14.) Around the time that Plaintiff purchased the Triple Olive Tree, he explored the possibility of opening what would become the Olive Tree Hookah Lounge in an adjacent storefront.2

In order to determine the legal steps required to open such an establishment, Plaintiff visited the Health Department, but was told that it did not have any jurisdiction over hookah lounges. ( Id. at 14.) Plaintiff next visited the Zoning Department, where employee Linda Stock

[7 F.Supp.3d 197]

professed to have never heard of a hookah. Plaintiff contends that Ms. Stock “kept ignoring [him] and making fun of” him and laughed at him.3 ( Id. at 16.) After consulting with another employee in the Zoning Department who could not provide any information, Plaintiff concluded that he “did not need any other permission or okay from any other department” to operate a hookah-smoking establishment. ( Id. at 15.)

Shortly after Plaintiff opened the Hookah Lounge in June 2009, the Mayor of Milford received a citizen complaint, contending that it was “a black mark in Milford” and that the establishment “may end up being just a haven for drugs.” (Citizen Complaint, Ex. LL to Defs.' 56(a)1 Stmt. at 2.) The email was forwarded to multiple city agencies for investigation, including the Health Department. ( Id.)

A. Health Department Allegations

On June 19, 2009, the Health Department issued a Notice of Violation (“NOV”), declaring the Hookah Lounge a public nuisance and ordering it closed. 4 (L. Miller Notes, Ex. I to Defs.' 56(a)1 Stmt. at 2.) The NOV faulted the establishment as lacking any signs warning the public regarding “the contents of the hookah tobacco” or “the hazards of smoking/secondhand smoke or the hazards of the combustion of other substances that might be added to the hookah tobacco” and “inadequate means for sanitizing the smoking apparatus and the smoking hoses.” (NOV, Ex. ZZ to Defs.' 56(a)1 Stmt. at 1.) On June 26, 2009, the Health Department rescinded the original NOV, but later that same evening two inspectors returned and issued a new NOV based on inadequate sanitizing of the smoking equipment. ( Id.) Some customers in the establishment were scared by the inspection and left. (Karout Dep. Tr. at 40.)

Plaintiff appealed the NOV, and on September 24, 2009, the Connecticut Department of Public Health (“CDPH”) held a hearing. Dr. McBride testified that the Hookah Lounge was a public health nuisance due to the risk of communicable diseases that could be transmitted from the hookah pipes and that he believed it was “one of the most important public health issues that I've had to deal with in my career.” (Transcript of CDPH Hearing, Ex. O to Defs.' 56(a)1 Stmt. at 71, 106.) Dr. McBride also submitted a report that he authored titled Hookah Smoking: A Public Health Nuisance (Ex. M to Defs.' Loc. R 56(a)2 Stmt.), describing the Hookah Lounge and discussing the health dangers of smoking hookah generally.

Citing and appending reports from the World Health Organization (“WHO”) and the Centers for Disease Control and Prevention (“CDC”), Dr. McBride described a widely held but apocryphal public belief that hookah smoking was less dangerous than cigarettes when in fact the smoke produced by a hookah pipe “contains high levels of toxic compounds, including carbon monoxide, heavy metals, nicotine, ‘tar’ and cancer-causing chemicals even after it has been passed though water.” ( Id. at 4–5.) According to the WHO, a typical hookah user would inhale 100 to 200 times the volume of smoke inhaled with a single

[7 F.Supp.3d 198]

cigarette. ( Id. at 5.) Because hookah tobacco is often mixed with sweeteners and artificial fruit flavors, many users mistakenly believe that it is not as addictive or harmful as cigarettes. ( Id. at 6.)

Citing a CDC report, Dr. McBride described how “smoking a shared hookah may increase the risk of transmission of illnesses such as tuberculosis, viruses such as herpes or hepatitis,” and pneumonia. ( Id.) Even where disposable mouthpieces were used “the tubing of the water pipe itself has the potential for spreading infectious diseases” and “diseases can be transferred in part due to the moist smoke.” ( Id.)

At the conclusion of his report, Dr. McBride discussed a report from a university health center, which described a “foreign born” student who acquired a drug-resistant strain of tuberculosis. ( Id. at 7.) Dr. McBride then noted:

Nationally, foreign born individuals are 10 times more likely to get tuberculosis. (CDC, 2007). Hookah smoking is of special concern to Milford. The concerns about the role hookahs play as source for the spread of tuberculosis is a real concern for Milford. Milford has a number of foreign born residents. Milford has a relatively low incidence of tuberculosis but it does have cases. In 2005, a Milford foreign born resident had a serious case of kidney tuberculosis. It also should be noted that Milford is a major shopping and dining location for Bridgeport and New Haven, which both have large numbers of foreign born residents and among the highest numbers of tuberculosis in the state (CT Department of Public Health, 2009). In Connecticut, the majority of tuberculosis cases are among foreign born residents. Furthermore, a high percentage of these residents come from continents where hookah smoking is prevalent, including Asia and Africa (Hadler, 2005).

( Id.)

On October 6, 2010, the CDPH issued a Memorandum of Decision, holding that while Mr. Karout had failed to present sufficient evidence to refute the claim that hookah smoke “constitutes a nuisance or source of filth” under Conn. Gen.Stat. § 19a–206(a), the Health Department had failed to establish that the smoke was a “public nuisance,” because there was “no evidence that the smoke leaves the property in any manner, or harms any members of the public other than those choosing to enter the lounge” with the “sole purpose” to “knowingly smoke the hookah pipe.” (CDPH Decision, Ex. L to Defs.' 56(a)1 Stmt. at 7–8.) The decision also concluded that the Health Department had failed to establish that the method Mr. Karout used to clean the pipes was insufficient to mitigate the risk of communicable diseases. ( Id. at 9.)

B. Zoning Department Allegations

On June 30, 2009, a Zoning Enforcement Officer issued a cease and desist order to Mr. Karout, and the property owner, Sultaneh Jaser, after the recent “discovery of the hookah lounge” by the Health Department. (Staff Report, Ex. T to Defs.' 56(a)1 Stmt. at 1.) The Zoning Department asserted that the Hookah Lounge did not fall within one of the enumerated “permitted uses” for its location and could not be classified as either a store “for sale of goods or the performance of personal services,” “[f]ood or beverage service establishment,” or “[e]ating places.” ( Id.; see also Milford Zoning Regulations, Ex. R to Defs.' 56(a)1 Stmt. §§–.3, As a result, the Zoning Department required Mr. Karout to apply for a Special Exception Permit.

[7 F.Supp.3d 199]

The Special Exception application required the submission of a site plan for approval of “the location and design of all required buffer strips, landscaping and screening,” external lighting, trash containers, and parking facilities. (Milford Zoning Regulations §–.17.) It also required the Zoning Board to “take into consideration the public health, safety and general welfare” in reviewing the application. ( Id. § 7.1.3.) On April 30, 2010, the City Planner, Defendant David Sulkis, informed Plaintiff that his initial application was incomplete. (Ltr. from D. Sulkis to A. Scheirer dated Apr. 30, 2010, Ex. U to Defs.' 56(a)1 Stmt. at 1.) Mr. Sulkis also told Mr. Karout that he needed to enter into a lease with the Connecticut Department of Transportation to acquire additional parking spaces for his customers and that he needed to enclose dumpsters that already existed in the rear of the property. (Karout Dep. Tr. at 58–60.)

The Zoning Board held meetings regarding Plaintiff's application on December 21, 2010, January 18, 2011, February 15, 2011, and March 1, 2011. (Verbatim Minutes, Exs. A, Y, Z, AA to Defs.' 56(a)1 Stmt.) At the first meeting, Plaintiff's attorney described the Hookah Lounge as “a cultural and social meeting place for people” from the Middle East and parts of India and Pakistan. (Verbatim Minutes, Ex. A at 3.) At the start of 2011, Defendant Susan Shaw became the Chair of the Planning...

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