United States District Court, D. Connecticut
RULING GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Jeffrey Alker Meyer United States District Judge
This is a case about a sports-bar-turned-concert-venue and the efforts of a town to regulate its operation through police and zoning enforcement. Plaintiffs owned a large sports bar in Hamden, Connecticut that often hosted live entertainment events. Plaintiffs complain that they were subject to unfair regulation that drove them out of business and that violated their rights under both the Equal Protection and Due Process Clauses. I conclude that plaintiffs have not established a genuine issue of fact or law to sustain their claims. Accordingly, I will grant defendants’ motion for summary judgment.
Plaintiff Dennis Dean owns co-plaintiff Phoenix Management Group One, LLC, a company that did business in the name of “Dean’s Point After Super Sports Bar and Grille” (or “the Point After”) on Dixwell Avenue in Hamden. Plaintiffs have named as defendants the Town of Hamden, the Town of Hamden Zoning Board of Appeals, Police Chief Thomas J. Wydra, and Zoning Enforcement Officer Holly Masi.
The following facts are set forth as presented by the parties but as viewed in the light most favorable to plaintiffs. The Point After opened in 2005 after receiving the proper permits and liquor license from the Town. These permits allowed plaintiffs to host various sorts of entertainment, including live music and DJs. In 2008, again after receiving the proper building and other permits, plaintiffs expanded the bar to 8, 000 square-feet of space. The Town’s fire marshal approved an occupancy level of 1, 200 persons based on the bar’s newly expanded space.
In 2009, however, defendant Holly Masi, the Town’s Zoning Enforcement Officer, learned that the Point After was hosting large events and issued a notice of violation based on excessive occupancy. According to Masi, the capacity of the Point After was only 179 people-a numerical limit that was not based on fire safety requirements but that was based on the number of allotted parking spots under the site plan for the expanded site. Despite Masi’s notice of violation, plaintiffs continued hosting large events at the Point After with attendance exceeding 179 people. See Doc. #28-2 at 60-61.
Under the Town of Hamden’s so-called “Amusement Ordinance, ” plaintiffs were required to acquire a license from the Hamden Police Department for every concert or show and also to hire at the police chief’s discretion a certain number of special-duty police officers to serve as security. See Doc. #28-2 at 55; Hamden Code of Ordinances §§ 112.01, 112.07. From 2008 to 2011, plaintiffs applied for more than 50 licenses for entertainment events. The police chief-defendant Wydra-reviewed these applications. Whenever Wydra granted a license, the license included both the number of expected attendees and the number of off-duty police officers that plaintiffs were required to hire for security purposes.
Despite the fact that Masi (the Town’s zoning enforcement officer) had issued a notice of violation citing the bar’s limited parking space issues, Wydra routinely approved events with capacities well over 179 people, and plaintiffs routinely hired the requisite number of officers and also employed their own private security officers inside the bar. The special-duty police officers from the Town usually remained available outside the venue and did not enter the building. Despite the Town-mandated security requirements, the address of the Point After was the subject of numerous police calls during this time, although mostly for minor disruptions.
In January 2011, a fight broke out in the Point After that required the police to enter the building for public safety. After that incident, Wydra required plaintiffs to hire more officers. Plaintiffs claim that certain police officers threatened Dean with arrest if he continued hosting live entertainment or DJ events, but none of the officers who allegedly made these threats have been named as defendants in this case, and there is no evidence that Wydra or any other defendant in this action instigated these threats.
By February 2011, Dean noticed an increase in visits by Hamden fire officials. During a three or four week period, the Hamden fire marshal or staff visited the venue three times. After those visits, the fire marshal claimed that the occupancy of the venue needed to be reduced. Plaintiffs attempted to apply for a permit from the Town of Hamden to increase capacity by adding exits and fixing the problems the fire marshal had noted, but they were allegedly told that the permit would not be granted. Over the course of months, the occupancy of the venue was reduced from 1, 200 to 540.
In March 2011, plaintiff Dean noticed that the special duty, hired police from the Town were taking a more active role in patrolling the premises. For example, they placed a police van and K-9 units outside the front entrance of the venue.
In April 2011, defendant Masi, in her capacity as the Town’s zoning enforcement officer, issued to plaintiffs a cease-and-desist order. The cease-and-desist order stated that plaintiff Phoenix Management Group was operating a nightclub in violation of Hamden zoning regulation § 160, which prohibited any activity “not expressly permitted by the regulations.” Doc. #28-2 at 76-78; see also Phoenix Mgmt. Grp. One, LLC v. Zoning Bd. of Appeals of Hamden, 2013 WL 3314000, at *1 (Conn. Super. Ct. 2013). Although Hamden’s zoning regulations do not define what activity would constitute operating a nightclub, the cease-and-desist order demanded that plaintiffs cease all live entertainment with a dance floor. Plaintiffs promptly appealed the cease-and-desist order to the defendant Zoning Board of Appeals (ZBA).
The ZBA held a public hearing on the matter in June 2011. Plaintiffs’ counsel at the hearing was prepared to argue that the Point After was not operating as a nightclub and was therefore not in violation of the regulations. But after the hearing was underway, the members of the ZBA shifted the discussion away from whether the Point After was technically a “nightclub”-a term that was undefined under the Town’s zoning ordinance-to whether the Point After had violated restrictions on parking. Thus, in view of the limited parking allocated for the Point After under its site plan, the ZBA concluded that the venue’s occupancy should be limited to a maximum of 179 persons at a time.
Plaintiffs’ attorney objected that plaintiffs had not received notice of this parking issue as grounds for the cease-and-desist order. But in an effort to have “cleaner” grounds for decision, the ZBA decided to “go after the parking and the original occupancy rather than going after this nightclub.” Phoenix Mgmt. Grp. One, LLC, 2013 WL 3314000 at *4. It also became clear that the real reason the Town was seeking regulation of this club was because of police complaints about the ...