Stratton v. Drumm

• Decision Date: 23 February 1978
• Docket Number: Civ. No. H-77-545.
• Citation: 445 F. Supp. 1305
• Parties: Kathleen S. STRATTON et al. v. Clarence A. DRUMM, Individually and as Chief of Police for the Town of East Hartford, et al.
• Court: U.S. District Court — District of Connecticut

445 F. Supp. 1305

Kathleen S. STRATTON et al. v. Clarence A. DRUMM, Individually and as Chief of Police for the Town of East Hartford, et al.

Civ. No. H-77-545.

United States District Court, D. Connecticut.

February 23, 1978.

Samuel H. Teller, East Hartford, Conn., Edward T. Lynch, Jr., New Britain, Conn., for plaintiffs.

Stephen C. Barron, Chief Assistant Corp. Counsel, East Hartford, Conn., for defendants.

RULING ON MOTION FOR PRELIMINARY INJUNCTION

BLUMENFELD, District Judge.

This action is brought under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), and under the Declaratory Judgments Act, 28 U.S.C. §§ 2201, 2202, to prevent the Town of East Hartford, Connecticut, from enforcing an amendment to its Massage Parlor Ordinance, East Hartford Code of Ordinances § 12-60(a), (c), which forbids massagists to administer massages to persons of the opposite sex.¹ The plaintiffs are operators and female employees of two massage parlors licensed under the ordinance. Defendants include the town, the mayor, the chief of police, and the members of the Town Council. In addition to claims made under state law,² plaintiffs contend that § 12-60 conflicts with Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), denies them the equal protection of the law, deprives them of property rights without due process of law, impairs their freedom of contract, invades their right of privacy and freedom of association, and constitutes an impermissible exercise of the police power.

The ordinance, passed in 1975, sets numerous requirements for the operation of massage parlors, provides for issuance of permits to massagists and massage parlors, and requires regular inspections by city officials. The amendment now at issue was passed October 4, 1977, with an effective date of October 28. The complaint in this action was filed on October 25, 1977, and a temporary restraining order was entered on the same day pending a hearing on plaintiffs' motion for a preliminary injunction. An evidentiary hearing was held on November 3, 1977.

The complaint states that the plaintiffs are duly licensed by the town under existing provisions of the Massage Parlor Ordinance, and have made substantial financial commitments to their business and occupation.³ Because nearly all massage customers are male, it is alleged that enforcement of § 12-60 would deprive the female massagist plaintiffs of their employment. Because there are no licensed male massagists in East Hartford, the operator plaintiffs claim that § 12-60 would force them out of business. They have moved for an injunction pendente lite to restrain enforcement of § 12-60 and prevent these injuries.

I.

Defendants do not contest this court's jurisdiction to hear this action under 28 U.S.C. § 1343(3). However, they argue that the court should abstain from ruling on the issues presented here, because a similar action between the same parties is now pending in the state court. In that case, the superior court denied plaintiffs' motion for a preliminary injunction against enforcement of the Massage Parlor Ordinance. King's Ransom, Inc. v. City of East Hartford, No. 201218 (Hartford County Super. Ct., filed Mar. 23, 1976). Defendants have pointed out that "state courts are competent to decide questions arising under the federal constitution, and federal courts most assuredly do not provide a forum in which disgruntled parties can re-litigate federal claims which have been presented to and decided by state courts." Deane Hill Country Club, Inc. v. City of Knoxville, 379 F.2d 321, 325 (6th Cir.), cert. denied, 389 U.S. 975, 88 S.Ct. 476, 19 L.Ed.2d 467 (1967) (citations omitted).

However, the state court was never presented with the objections now raised to § 12-60. The superior court has before it the provisions of the Massage Parlor Ordinance passed in 1975. Since the 1977 amendments have not been challenged in the state court, principles of comity and federalism do not call for abstention by this court.

II.

The following standards govern a motion for a preliminary injunction:

"To obtain the preliminary relief he seeks the movant must make `"a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief."' Triebwasser & Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1358 (2d Cir. 1976) (emphasis in original), quoting Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973); see Pride v. Community School Board, 482 F.2d 257, 264 (2d Cir. 1973). Further, it should be emphasized that such preliminary injunctive relief can be awarded only upon a clear showing that the movant is entitled to the relief, Triebwasser & Katz v. American Telephone & Telegraph Co., supra at 1358; Sonesta International Hotels Corp. v. Wellington Associates, supra at 250, and that in making such a showing the movant bears a heavy burden, Pride v. Community School Board, supra at 264." New York v. Nuclear Regulatory Commission, 550 F.2d 745, 750 (2d Cir. 1977).

Plaintiffs contend that preliminary relief is appropriate under either of these standards. This discussion will be directed primarily to the questions of irreparable injury and probable success on the merits.

Plaintiffs' claim that enforcement of § 12-60 would cause irreparable damage is supported by testimony. Witnesses testified that about 99 percent of all massage customers are male. If females could not legally administer massages to males, the massagist plaintiffs would effectively be barred from their occupation in the town of East Hartford. Currently there are no males licensed as massagists in East Hartford, and it would take a male applicant at least 30 days to obtain a license under current procedures. If the amendment were enforced, the operator plaintiffs would be forced to close their businesses, because no massagists legally qualified to serve their male customers would be available for employment. No remedy at law would be available to compensate plaintiffs for the loss of employment and business. Cf. Joseph v. House, 353 F.Supp. 367, 375 (E.D. Va.), aff'd sub nom. Joseph v. Blair, 482 F.2d 575 (4th Cir.), reh'g denied, 488 F.2d 403 (4th Cir. 1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974). I therefore conclude that plaintiffs have made a sufficiently clear showing of possible irreparable injury.

III.

Turning to the question of the likelihood of success on the merits, it must first be noted that consideration of plaintiffs' primary constitutional claims has been foreclosed by recent decisions of the United States Supreme Court. That Court has thrice dismissed appeals from state court decisions sustaining local legislation essentially identical to § 12-60. Smith v. Keator, 419 U.S. 1043, 95 S.Ct. 613, 42 L.Ed.2d 636 (1974), dismissing for want of a substantial federal question 285 N.C. 530, 206 S.E.2d 203 (1974); Rubenstein v. Township of Cherry Hill, 417 U.S. 963, 94 S.Ct. 3165, 41 L.Ed.2d 1136 (1974), dismissing for want of a substantial federal question, No. 10,027 (N.J.Sup.Ct., Jan. 29, 1974); Kisley v. City of Falls Church, 409 U.S. 907, 93 S.Ct. 237, 34 L.Ed. 169 (1972), dismissing for want of a substantial federal question 212 Va. 693, 187 S.E.2d 168 (1972).

When a case is within the appellate jurisdiction of the Supreme Court, 28 U.S.C. § 1257(1), (2), and that Court dismisses the appeal for want of a substantial federal question, the dismissal is a ruling on the merits which binds lower courts in subsequent cases. Hicks v. Miranda, 422 U.S. 332, 343-45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Dismissal is a summary action, and the Court publishes no written opinions to articulate the principles on which its decision is based. Thus, when a lower court is cited to a summary dismissal as binding precedent, "its initial task is to ascertain what issues were properly presented in the earlier case and declared by the Court to be without substance." Id., 422 U.S. at 345 n.14, 95 S.Ct. at 2290.

In each of the three cases cited above, the Supreme Court was asked to decide whether an ordinance prohibiting administration of massages to persons of the opposite sex in commercial establishments violated the equal protection or due process clauses of the fourteenth amendment. Statement As To Jurisdiction, Smith v. Keator, supra, summarized in 43 U.S.L.W. 3270 (1974); Statement As To Jurisdiction, Rubenstein v. Township of Cherry Hill, supra, summarized in 42 U.S.L.W. 3637 (1974); Statement As To Jurisdiction, Kisley v. City of Falls Church, supra, summarized in 41 U.S.L.W. 3123 (1972). Other courts have adhered to these decisions in rejecting constitutional challenges to similar ordinances. Tomlinson v. Mayor of Savannah, 543 F.2d 570 (5th Cir. 1976); Hogge v. Johnson, 526 F.2d 833 (4th Cir. 1975), cert. denied, 428 U.S. 913, 96 S.Ct. 3228, 49 L.Ed.2d 1221 (1976); Colorado Springs Amusements, Ltd. v. Rizzo, 524 F.2d 571 (3d Cir. 1975), cert. denied, 428 U.S. 913, 96 S.Ct. 3228, 49 L.Ed.2d 1222 (1976); Brown v. Haner, 410 F.Supp. 399 (W.D.Va.1976).

The argument that state police powers may not constitutionally be used to control these activities was also raised and dismissed in Rubenstein v. Township of Cherry Hill, supra. Plaintiffs' claim that § 12-60 abridges their right to privacy and freedom of association is clearly without merit, because those rights do not extend to commercial ventures. Brown v. Haner, supra; see Paris Adult Theatre I. v. Slaton, 413 U.S. 49, 65-66, 93 S.Ct. 2628, 37 L.Ed.2d 446, reh'g denied, 414 U.S. 881, 94 S.Ct. 27, 38 L.Ed.2d 128 (1973). Nor does § 12-60 offend the Constitution by limiting the freedom to enter contracts. Cf. Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Day-Brite...