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Beverly Hills Suites LLC v. Town of Windsor Locks

United States District Court, D. Connecticut

September 30, 2015

BEVERLY HILLS SUITES LLC, et al, Plaintiff,
v.
TOWN OF WINDSOR LOCKS, et al., Defendant

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          For Beverly Hills Suites LLC, Plaintiff: David N. Neusner, LEAD ATTORNEY, Embry & Neusner, Groton, CT; Simon Schwarz, LEAD ATTORNEY, PRO HAC VICE, The Schwarz Law Firm, New York, NY.

         For Windsor Locks Family Trust, Plaintiff: David N. Neusner, LEAD ATTORNEY, Embry & Neusner, Groton, CT; Ryan James McKone, LEAD ATTORNEY, Williams Walsh & O'Connor, LLC, North Haven, CT; Simon Schwarz, LEAD ATTORNEY, PRO HAC VICE, The Schwarz Law Firm, New York, NY.

         For Sharok Jacobi, Plaintiff: David N. Neusner, LEAD ATTORNEY, Embry & Neusner, Groton, CT; Simon Schwarz, LEAD ATTORNEY, PRO HAC VICE, The Schwarz Law Firm, New York, NY.

         For Peter L Ressler, Petitioner: Peter L. Ressler, LEAD ATTORNEY, Groob, Ressler & Mulqueen, New Haven, CT.

         For Town of Windsor Locks, Windsor Locks Police Department, John Suckocki, Jr., Chief, Individually and in his Official Capacity, Ricardo Rachele, Detective Sergeant, Individually and in his Official Capacity, Defendants: James G. Williams, LEAD ATTORNEY, The Law Offices of Williams, Walsh & O'Connor, LLC, North Haven, CT; Ryan James McKone, Scott Roland Ouellette, LEAD ATTORNEYS, Williams Walsh & O'Connor, LLC, North Haven, CT.

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         MEMORANDUM OF DECISION

         Michael P. Shea, United States District Judge.

         From 2007 to 2010, the plaintiffs, a hotel and its principal, Sharok Jacobi, hosted parties, rap music concerts, gatherings of " swingers," and other events at their facility in Windsor Locks, Connecticut, in addition to renting rooms to guests. Some of these events attracted boisterous crowds, and the Windsor Locks police were summoned several times in response to noise complaints and reports of criminal activity, including fights and, on at least one occasion, a shooting. The police also referred the hotel to the Liquor Control Division of the Connecticut Department of Consumer Protection, as well as the Windsor Locks Fire Marshal, for alleged liquor and fire code violations--reports that prompted investigations by those authorities and led to temporary shut-downs of the hotel and its bar, as well as the arrest of Jacobi.

         In this action, the plaintiffs claim that the defendants--a police officer, the police chief, and the Town of Windsor Locks--targeted them for enforcement activities based on animus against the plaintiffs' customers and entertainers--young, African-American and Hispanic people--and members of the swingers' groups who congregated for parties at the hotel and its bar. The hotel claims that the defendants harmed its business and asserts violations

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of First Amendment rights of free expression and association, selective enforcement in violation of the Fourteenth Amendment, deprivation of due process rights in violation of the Fourteenth Amendment, and " warrantless searches" by the police in violation of the Fourth Amendment. Jacobi sues for false arrest and malicious prosecution.

         I grant the defendants' motion for summary judgment as to all claims. The First Amendment claims fail because the swingers' activity documented in the record--namely, participating in sexual encounters with others in the hotel's bar--is not protected by the First Amendment, and because the record does not contain any evidence that the defendants prevented or " chilled" any concerts. The selective enforcement claim fails because the plaintiffs have introduced no evidence that any other hotels in Windsor Locks demanded as much police attention or were otherwise similarly situated. The procedural due process claim fails because there is no evidence that the defendants improperly influenced the independent decisions by the Liquor Control Division and the Fire Marshal to shut down the bar and hotel, respectively, and thus no evidence that the defendants deprived the plaintiffs of property or liberty interests. The Fourth Amendment claim fails because the only evidence in the record about police visits to the hotel to which either side has pointed shows that the police were either summoned by hotel staff or were present in areas of the hotel--such as the bar and front desk--to which the hotel invited the public and in which it thus had no reasonable expectation of privacy. Finally, Jacobi's false arrest claim fails because the police had probable cause to arrest him, and the statements he contends were omitted from the arrest warrant affidavit were either immaterial or unknown to the police.

         I. BACKGROUND

         A. The Amended Complaint

         Sharok Jacobi is the sole trustee of the Windsor Locks Family Trust, and the Trust is the sole member of Beverly Hills Suites, LLC, which owns the Beverly Hills Suites (hereafter referred to as the " Hotel" ).[1] The Hotel and Jacobi have brought an eight-count complaint against the Town of Winsor Locks (the " Town" ), John T. Suchocki, Jr., the chief of the Windsor Locks Police Department (" WLPD" ), and Detective Sergeant Richardo Rachele (together, the " Defendants" ). (Am. Compl., ECF No. 69-2.) Plaintiffs are suing Suchocki and Rachele in both their individual and official capacities. ( Id. ¶ 10-11.) Invoking 42 U.S.C. § 1983, the Hotel brings claims against all Defendants for violations of its free speech and free association rights under the First Amendment (Count One), the equal protection clause of the Fourteenth Amendment (Count Two), the due process clause of the Fourteenth Amendment (Count Three), and its right to be free from warrantless searches and seizures under the Fourth Amendment (Count Four). The Hotel also brings a claim against all Defendants for attorney's fees (Count Six) and against the Town for municipal liability for Rachele's alleged constitutional violations (Count Five). Jacobi brings claims against all Defendants for false arrest and malicious prosecution (Count Seven). Finally, Plaintiffs bring

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claims for violations of the Constitution of the State of Connecticut (Count Eight).

         B. Complaints and Disturbances at the Hotel -- Generally

         The following facts are taken from the parties' statements of material fact pursuant to Local Rule 56(a) and their supporting exhibits. ( See Defendants' L.R. 56(a)(1) Statement, ECF No. 32-4 (" Defs.' SMF" ); Plaintiffs' Response to Defendant's L.R. 56(a)(1) Statement, ECF No. 41-1 (" Pls.' SMF" ).)

         The Hotel purchased the premises in Windsor Locks in 2004, and was generally not operational until 2006, when it had a " soft opening," while it was still undergoing renovations. (Defs.' SMF ¶ ¶ 1, 4; Pls.' SMF ¶ ¶ 1, 4.) The Hotel's grand opening occurred in April of 2007. (Defs.' SMF ¶ 5; Pls.' SMF ¶ 5.) The Hotel contained a club/lounge that served alcohol, which was known as " Club 91" (Defs.' SMF ¶ 2; Pls.' SMF ¶ 2) prior to December 2008, after which it was renamed " Windsor Lounge." (Pls.' SMF ¶ 7.) A single road served as the only access road for both the Hotel and an adjacent residential condominium association. (Defs.' SMF ¶ 3; Pls.' SMF ¶ 3.) In September, 2010, a receiver was appointed to operate the Hotel. (Defs.' SMF ¶ 6; Pls.' SMF ¶ 6.)

         The parties agree that between 2007 and September 2010 there were no other venues in the Town " that held nighttime parties/events with a comparable volume of people." (Defs.' SMF ¶ 24; Pls.' SMF ¶ 24.) The Plaintiffs, however, dispute Defendants' evidence that there was no other venue in the Town " that contacted the police for assistance with anywhere near the frequency as" the Hotel, and that the WLPD " had to request mutual aid from other police departments" to serve the Hotel on numerous occasions. (Defs.' SMF ¶ 24 (citing Rachele Aff. ¶ 28-29); Pls.' SMF ¶ 24 (citing Jacobi Decl. ¶ 5).)[2] Defendants, relying on Rachele's affidavit, assert that between 2007 through 2010, the WLPD received " multiple loud noise complaints pertaining to the hotel." (Defs.' SMF ¶ 8.) Plaintiffs do not dispute this statement, but assert that most of the loud noise complaints " came from one lady that lived in the condominium complex next to the hotel." (Pls.' SMF ¶ 8.) According to the testimony of one of the Hotel's managers, Jennifer Feigenbaum, " [t]he same woman" made such calls, and called the police to complain about noise even when the Hotel did not have events. (Pls.' Ex 1, ECF 89-1, Feigenbaum Tr. at 84.)

         According to Rachele's affidavit (based on his personal knowledge and his review of police incident reports prepared by WLPD officers) and several of his police reports, the following incidents at the Hotel required police attention from 2007 to 2010[3]:

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o On June 6 and June 9, 2007, the WLPD responded to the Hotel on noise complaints of loud music from area residents. (Pls.' Ex. B, Narrative Police Report 07-4992, ECF No. 91 at 12.)
o On August 25, 2007, a manager at the Hotel called the WLPD to complain about a large group of 15-20 people arguing and throwing bottles, and requested police assistance. (Defs.' Ex. C, Rachele Aff. ¶ 6.)
o One week later, the WLPD was " again contacted concerning a report of a large fight involving 25 people." ( Id. ¶ 7.)
o On September 29, 2007, there was a disturbance at Club 91 with possible shots fired. ( Id. ¶ 8.)
o On December 9, 2007, Hotel staff requested extra police attention " because of a large crowd." On the same day, a manager at the Hotel called the WLPD about a large, out-of-control crowd in the parking lot. Police were dispatched at approximately 3:00 a.m. " Upon arrival police observed complete chaos taking place in the parking lot, with approximately 100 people outside, some running and screaming through the parking lot. Initially the police were unable to enter the lot due to a large crowd of people and grid lock of vehicles attempting to exit the establishment. There were multiple fights involving numerous individuals." ( Id. ¶ 9.)
o On December 23, 2007, two Enfield police officers, who were on " private duty assignment" at the Hotel, radioed the WLPD concerning a fight in the Hotel lobby. ( Id. ¶ 10.)
o On December 30, 2007, several fights broke out among the approximately 50 people in line for Club 91 in the Hotel lobby. One person was arrested for assault. Later that night, the police " received reports of numerous fights occurring" inside Club 91, including one person who pulled " a 4x4x36 inch metal cigarette disposal post out of its base," swung it around, and " eventually threw it into the crowd despite an order from the police to put it down." Because of these issues, the Hotel closed the club and told the patrons to leave.[4] ( Id. ¶ 11.)
o On January 1, 2008, " a call for police was made from the front lobby vestibule where it was reported that two females were arguing and that one female had assaulted another." (Pls.' Ex. C, Narrative Police Report 08-32, ECF No. 91 at 16.)
o On November 1, 2008, a female, later identified as a security officer at the Hotel, called the WLPD to report that there was going to be a " possible shooting." The caller reported that there were over 20 people claiming to have weapons. Upon arrival, the police heard gunshots. (Rachele Aff. ¶ 16; Pls.' Ex. K, WLPD Narrative Report of Sgt. Michael Balfore at 68-69.)
o On May 23, 2010, the WLPD " received a complaint from an individual who reported that she was assaulted with a shoe in the hotel lounge at around 3:00 a.m." (Rachele Aff. ¶ 18.)

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o On June 5, 2010, two females fought in front of the Hotel. In addition, a Hotel employee called 911 and reported that he had been assaulted. Finally, a " manager advised that a guest reported to him that someone had broken a glass door on the west side of the building--the glass was shattered and it appeared that a rock was thrown through the window." (Rachele Aff. ¶ 20.)
o On August 13, 2010, " there were several 911 calls reporting shots fired at the hotel." Police officers heard gunfire when they arrived, and they saw multiple active fights between groups of people in the parking lot. " A male who was shot was transported to St. Francis Hospital." ( Id. ¶ 21.)

         C. The Hotel's Allegations of Racial Animus

         According to Jacobi, about 20-25% of the Hotel's revenue came from the events it hosted, such as dances and concerts. (Plaintiff's Disputed Issues of Material Fact, ECF No. 89 (" Pls.' Stmt. Disputed Facts" ) ¶ 5; Jacobi Decl., ECF No. 89-5 ¶ 9.) " Many of these events featured entertainers and artists such as 'DJ Styles', a popular disc jockey, who are African-American or Hispanic, and appealed to a clientele whose racial composition was mostly young African-American and Hispanic persons." (Pls.' Stmt. Disputed Facts ¶ 5; Jacobi Decl. ¶ 9.) The Hotel marketed these events through radio advertisements and flyers. ( Id. ) During a meeting before one such event, the June 4, 2010 Ludacris concert, Suchocki allegedly told hotel staff, including Jacobi and Feigenbaum, " I don't like having other colors in this Town" (Jacobi Decl. ¶ 10), or " I don't want other colors in this town." (Feigenbaum Tr. pp. 110, 126-27.)

         Plaintiffs assert that Defendants " regularly and systematically interrupted these events and prevented potential customers from attending by, among other things, arbitrarily closing the private road leading to the Hotel, placing police cars with emergency lights at the entrances to the premises[,] . . . falsely informing patrons that the events were sold out and/or that the parking lot was full, and issuing [the Hotel] false and fabricated summonses for excessive noise. . . ." (Jacobi Decl. ¶ 11.) Without describing any specific incidents or citing any specific evidence, Plaintiffs allege that Defendants closed the parking lot on multiple occasions for no reason other than to disrupt events at the Hotel. (Pls.' SMF ¶ 21 (citing Jacobi Decl. ¶ ¶ 7-8).) Defendants contend that the police closed the Hotel's parking lot when " the police needed to address criminal incidents, or when there was over occupancy of the parking [lot] which impeded the safe ingress/egress of emergency vehicles." (Defs.' SMF ¶ 21 (citing ¶ Rachele Aff. 26).) Plaintiffs state that, while there may have been some occasions where the shared roadway was obstructed, impeding the access of emergency vehicles, " such obstruction was not caused by over-occupancy of a huge lot, as long as incoming cars would be directed to go far in the back. Any claimed obstruction could easily have been remedied by having the owners remove any illegally parked vehicles." (Pls.' SMF ¶ 21 (citing Jacobi Decl. ¶ ¶ 7-8).) The parties agree, however, that there is no evidence that any such dances and concerts did not go forward because of anything the police did. (Defs.' SMF ¶ 20; Pls.' SMF ¶ 20.)

         D. November 8, 2008 Undercover Investigation of Swingers' Event

         On September 16, 2008, a person calling

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himself Mark Lindquist[5] e-mailed the Liquor Control Division within the State of Connecticut Department of Consumer Protection (" Liquor Control" ) and reported that he had evidence of nudity and sexual acts occurring in public areas of the Hotel, which were visible from a café across the street from the Hotel. (Defs.' Ex. D1, ECF No. 84-3 at 35; Defs.' SMF ¶ 9.) Lindquist also informed Liquor Control that several websites were advertising swingers' parties at the Hotel. (Defs.' Ex. D1, ECF No. 84-3 at 35.)

         Liquor Control agents visited the Hotel and spoke with Jacobi and Feigenbaum about Lindquist's reports on September 23, 2008. (Defs.' Ex. D1, ECF No. 84-3 at 35.) According to a report by Philip Colla, Special Agent for Liquor Control, " Jacobi stated that he was willing to comply with the liquor laws and that the advertised conduct does not happen within his hotel." ( Id. 35.) The Liquor Control agents gave Jacobi a current Liquor Control Act and Regulation book, and showed him the sections stating that persons may not be unclothed and that no one is allowed to perform or simulate sexual acts on the permit premises, except in private sleeping accommodations. ( Id. ) Colla reported that they " discussed at length what acceptable conduct is and what is not allowed under the liquor control law." ( Id. )

         Liquor Control Agents Colla and Lewis met with Lindquist in person at a Dunkin Donuts in Wethersfield, Connecticut, on October 10, 2008. ( Id. at 35-36.) Lindquist did not provide the agents with any identification, but he claimed that he was a father who frequented the café across the street from the Hotel with his children (Defs.' SMF ¶ 9), and that he could see unclothed people from the café . (Defs.' Ex. D1, ECF No. 84-3 at 35-36.) He also claimed that he attended a swingers' party at the Hotel in June 2008 to take photographs to send to Liquor Control, and he had witnessed oral sex acts in the barroom. ( Id. at 36.) At the next scheduled swingers' party, on October 25, 2008, the WLPD " found a party in operation [at the Hotel] but observed no unclothed individuals and no sexual acts." ( Id. ) Agent Colla notified Lindquist that the police did not find any sexual activity. ( Id. ) Lindquist responded by e-mail and said that he had attended the party and took " photographs of unclothed patrons and sexual acts displayed in the public areas." ( Id. ) Agent Colla forwarded the photographs provided by Lindquist to the WLPD. ( Id. )

         Colla and Lewis met with Rachele and WLPD Detective Dawn Morini on November 5, 2008, " to discuss an undercover operation at the hotel to substantiate the claims of sexual acts being performed on the permit premises." ( Id. ) In preparation for the operation, Agent Colla signed up online for a party at the Hotel on November 8, 2008, which was organized by a group known as " Hot Couples" or " HCP." ( Id. ) Lewis and Colla arrived at the Hotel at 10:05 p.m., and entered Club 91 through a door with a sign that stated " HCP Private Party, must be on guest list, HCP Private Party." ( Id. ) The agents were greeted by the promoter of the party, Maulucci, who confirmed that they were on the guest list. ( Id. ; Pls.' Ex. I, ECF No. 91 at 31.) The agents ordered drinks, and when the agents asked their bartender if there was food being served, she said " no, sorry." (Defs.' Ex. D1, ECF No. 84-3 at 37.)

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The agents stood to the left end of the bar, where they " had a clear view into a sitting area" despite the presence of plants, the purpose of which appeared to be to block the view. ( Id. at 37 (" we had a clear view into a sitting area that they attempted to obstruct viewing with plants." ).) The Agents observed men and women exposing their genitals, fondling others' genitals, engaging in oral sex, and masturbating. They also observed women exposing their breasts and men fondling and caressing exposed breasts. ( Id. ) The agents observed a photographer taking photographs of attendees who were unclothed, and who were simulating and performing sex acts. ( Id. ) They saw Brian True, the permittee, moving through the room and noted that he did not attempt to stop such sex acts. ( Id. at 38.) Colla then called Detective Morini of the WLPD and informed her that the agents had observed " violations." ( Id. ) The agents then left and reentered Club 91 wearing raid jackets and began an inspection of the premises. Agent Lewis interviewed Maulucci, and learned that he pays $500 per event for use of Club 91. ( Id. at 40.) Plaintiffs' exhibits contain copies of contracts between the Hotel and Maulucci, which show that, for each party, HCP paid the Hotel $500 to rent Club 91 for the night, and the Hotel also received proceeds from liquor sales and room reservations. (Pls.' Ex. O, ECF No. 91-1.)

         At the end of the inspection, Agent Colla " took the photographs received from the complainant, Mark Lindquist, and tried to identify the areas in the hotel where the photos were taken," during a party in June 2008. (Defs.' Ex. D1, ECF No. 84-3 at 40.) Two of the photos, allegedly from June 2008, depicted couples engaged in graphic sexual conduct on green couches, which Colla found were located in the lobby of the Hotel. ( Id. ) Other photos provided by Lindquist and allegedly from the October 25, 2008 party included a photo of a woman " exposing her buttocks and genitals" in front of a wall that had a painting of flowers, and Colla found this wall in the dining room adjacent to the lobby. ( Id. ) Photographs seized from the photographer on November 8 showed additional photos taken at the party on October 25, 2008, and at the party on November 8, 2008. ( Id. at 40-41.)

         The agents found multiple violations of the Connecticut Liquor Control statutes and regulations for June 2008, October 25, 2008, and November 8, 2008, including violations of: Conn. Gen. Stat. § 30-62a (consumer bars); Conn. Gen. Stat.§ 30-21(d) (definition of Hotel, which requires food to be served at all times when alcoholic liquor is served); Regs. Conn. State Agencies § 30-6-A24(c) (conduct of premises); and Regs. Conn. State Agencies § 30-6-A24(a) (unlawful conduct: smoking). ( Id. at 39, 41-42.)

         Based on this investigation, and relying on the Liquor Control agents' observations, interviews, and communications with Lindquist, Rachele submitted an affidavit as part of his application for an arrest warrant for Jacobi. (Defs.' SMF ¶ 11; Pls.' Ex. I, ECF No. 91 at 31.) A Connecticut Superior Court Judge determined that there was probable cause to arrest Jacobi. (Defs.' SMF ¶ 11.) Rachele's affidavit also stated that, on November 8, 2008, he and the Liquor Control agents interviewed Maulucci, who told them that " he had entered into a contract with Sharok Jacobi to have his parties at the hotel and that Jacobi was fully aware of the parties and what was taking place in Club 91 and the lobby of the hotel." (Pls.' Ex. I, (ECF No. 91 at 32) Arrest Warrant Affidavit for Jacobi, p. 38.)

         An arrest warrant was issued for Jacobi on November 13, 2008, charging him with

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Criminal Liability to Commit Obscenity in violation of Connecticut General Statutes § § 53a-9[6] and 53a-194[7] and Criminal Liability to Commit Public Indecency in violation of Connecticut General Statutes § § 53a-9 and 53a-186[8] for events " which took place on or about the date of 11-8-08." [9] (Defs.' Ex. D1, ECF No. 84-3 at 41; Pls.' Ex. I, ECF No. 91 at 33.) Jacobi turned himself in to the WLPD on November 17, 2008. (Pls.' Ex. I, ECF No. 91 at 48.) Plaintiffs contend that the assertions in Rachele's affidavit for Jacobi's arrest warrant were " not true nor accurate," there was no probable cause, and Rachele's affidavit " failed to disclose that the evidence presented was illegally obtained" as a result of Rachele's previous warrantless searches. (Pls.' SMF ¶ 11.) Jacobi asserts that Rachele failed to tell the signing judge that:

i. informant Lindquist was never asked for identification when he gave the Liquor Control officers " phony, cut and pasted pictures" purporting to show sexual acts taking place in public areas of the Hotel on October 25, 2008;
ii. " no reasonable . . . police officer would believe that such activity would have taken place . . . at a luxury hotel, in public areas," because it would hurt its business, especially in light of the fact that, during the event actually observed by undercover authorities on November 8, 2008, " no such activity [occurred] outside a tightly sealed off bar area" ;
iii. " Moylan" was never questioned by Rachele " about his obsessive interest in stopping HCP events at Club 91" ;
iv. the Hotel " was not a sleazy motel where unsavory sex and prostitution occur but a gorgeous hotel renovated at a cost of ...

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