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"Q"- Lungian Enterprises, Inc. v. Town of Windsor Locks

United States District Court, D. Connecticut

September 18, 2017

"Q"-LUNGIAN ENTERPRISES, INC., et al.., Plaintiffs,
TOWN OF WINDSOR LOCKS, et al.., Defendants



         Nude dancing is expressive activity that qualifies for protection as “free speech” under the First Amendment to the U.S. Constitution. The plaintiffs in this lawsuit ran a billiards bar and restaurant known as “Pool Table Magic” in the Town of Windsor Locks, Connecticut. They wanted to expand their business to include topless female dancers. But the Town denied them a zoning permit. So plaintiffs sued on grounds that the Town's zoning code violates the First Amendment.

         I will now dismiss this action for two reasons. First, plaintiffs don't have standing. For a plaintiff to have standing to maintain an action in a federal court, a plaintiff must not only prove an injury caused by a defendant but also that a court ruling in the plaintiff's favor would redress that injury. Although plaintiffs here have sued the Town to challenge its zoning code, they have not challenged a separate state regulation that prohibits them as a liquor licensee from employing or using female topless dancers. Even if I ruled for plaintiffs that the local zoning code violated their First Amendment rights, plaintiffs would still have remained subject to the state liquor regulation, and my ruling would not redress plaintiffs' claim of injury.

         Second, the Town's zoning code did not violate plaintiffs' rights under the First Amendment. Because the zoning code is not a content-based regulation of expressive activity, it is not presumptively invalid under the First Amendment. Nor is it a verboten prior restraint on speech. To the extent that the Town's zoning code affected plaintiffs' plans at all to engage in expressive activities, it operated as a valid time-place-and-manner regulation with reasonable criteria and allowance for alternative avenues for free expression. The Town did not violate the First Amendment.


         In 1993, the Town of Windsor Locks adopted an adult-oriented establishment ordinance. Doc. #54-9. The preamble to this ordinance notes that “there are a number of ‘adult oriented establishments' located in the Town of Windsor Locks which require special supervision from the Town's public safety agencies in order to protect and preserve the health, safety and welfare of the patrons of such establishments, as well as the health, safety and welfare of the Town's citizens.” Id. at 3. The preamble recites public health and safety concerns relating to such adult businesses, including that such establishments may encourage prostitution and cause health problems from the deposit of human bodily fluids in publicly accessible locations. Id. at 3-4. The ordinance goes on to note that it is not the Town's intent to deny any person the right to free speech as protected by the federal and state constitutions. Id. at 4.

         The 1993 ordinance defines an “adult-oriented establishment” to include in relevant part an adult entertainment venue that features live performances by topless women. Id. at 6-7. Among other regulations, the ordinance prohibits all adult entertainment establishments from being located within 500 feet of a residential zone or 1000 feet of a public park or playground. Id. at 8. The parties do not dispute that at the time of the events at issue in this case the Town required that any such adult-oriented establishments be located in a B-1 (business) zoning district.[1]

         Apart from this adult business ordinance, the Town was also governed at the relevant time by a general and comprehensive zoning code. As of October 2012, the operative form of the zoning code was the 2009 printing, subject to a few 2011 amendments not relevant to this case. Section 402 of this code contained tables listing in detail both the permitted and prohibited uses of land in each type of zoning district. Doc. #52-4 at 2-10. Section 401 of the code explained the various abbreviations that appear in these tables. Uses marked “SP” were permitted uses that were subject to site plan and design review. Doc. #52-4 at 1. Uses marked “SU” were permitted uses that were subject to a further requirement of obtaining a special use permit. Ibid. Approval for “SP” and “SU” uses required a meeting of the Planning and Zoning Commission (PZC), and this approval was subject to conditions set out in § 1102 and § 1103 of the code. See ibid.; Doc. #52-5 at 1-2.

         In contrast to uses marked as “SP” or “SU”, uses marked “P” in the zoning code were permitted without review by the PZC, and their approval required only the ministerial issuance of a building permit.[2] Uses marked “X” were prohibited outright, as was any use not enumerated in the code, unless the PZC determined that it was “sufficiently similar to a listed use.” Doc. #52-4 at 1. In addition, section 402A also listed certain permitted “accessory” uses, including any “accessory use customary with and incidental to a permitted use on the same lot.” Doc. #52-7 at 12.

         In short, the Town's general zoning code specified a range of permitted and unpermitted uses. Adult entertainment was not mentioned anywhere in the general zoning code. Only the specific 1993 ordinance regulated these establishments by name.

         In 1988, Mark Kulungian first opened a billiards hall known as Pool Table Magic in Enfield, Connecticut. Doc. #52-2 at 9. Pool Table Magic moved to its current location in 2004 at 75 Ella Grasso Boulevard in Windsor Locks. Ibid; Doc. #52-2 at 10-11. This location is within a B-1 zoning district, and it is not within 500 feet of a residential district or 1000 feet of a recreational area. Doc. #52-1 at 14. Accordingly, there is no indication in the record before me that the Town's adult business ordinance would prohibit Pool Table Magic from engaging in adult-business oriented activity.

         The two plaintiffs in this case are two companies connected to Kulungian and the Pool Table Magic business. Plaintiff “Q”-Lungian Enterprises, Inc., operates Pool Table Magic, and it is a tenant of the property at 75 Ella Grasso Boulevard that is owned by co-plaintiff Jessie James Realty, LLC.

         On October 12, 2012, Kulungian submitted an application to the PZC for a site plan modification and for zoning approval to add “live entertainment which would include, but not be limited to, exotic [i.e. topless] dancers” at Pool Table Magic. Doc. #52-1 at 6-7. His application stated that “the proposed accessory use of live entertainment is customary with and incidental to the permitted use as a restaurant.” Id. at 7.

         On February 7, 2013, the PZC rejected this application, and a week later sent a letter to Kulungian stating that “the proposed accessory use is not a customary use with a restaurant or a restaurant use and is not a listed use on the Permitted Use Tables of Section 402.” Doc. #52-1 at 29. However, the letter suggested that “the newly proposed accessory use for the building might be considered similar to an amusement enterprise or an assembly hall use, and therefore an application for site plan modification and a special use permit should be submitted.” Ibid.

         Kulungian followed up by submitting a new application on March 5, 2013, seeking a site plan modification and special use permit for the same exotic dancing proposal as in his previous application. Id. at 31-32. This application was also denied by the PZC on August 12, 2013. The PZC wrote a letter to Kulungian stating that the application was rejected “due to the failure of the application to offer any evidence showing the proposed use was permitted under the amusement enterprise provision.” Id. at 47.

         Plaintiffs then sued. On September 3, 2013, plaintiffs filed this complaint alleging that their First Amendment rights had been violated. Doc. #1. The complaint advances three different theories of First Amendment violations, somewhat confusingly styled as separate “counts” or “causes of action” of the complaint. First, the complaint alleges that the requirement of the zoning code that plaintiffs apply for a special use permit is an unconstitutional prior restraint on protected speech. Doc. #1-1 at 12-13. Second, the complaint alleges that the zoning code acts as an unconstitutional restriction on where plaintiffs may engage in live entertainment and does not allow for alternative avenues of communication, as required by the United States Supreme Court in City of Renton v. Playtime Theaters, 475 U.S. 50 (1984). Doc. #1-1 at 13-15. Third, the complaint alleges that the zoning code impermissibly “zones out” plaintiffs' proposed entertainment use, because it prohibits all forms of live entertainment except for dramatic and musical productions. Id. at 15-17. This third “count” also cites Renton, and it seems to serve as a catch-all for a number of mini-theories of First Amendment violation: that the regulations were a content-based restriction on speech, that they were overbroad, that they were not narrowly tailored, that they were not necessary to a compelling government interest, and that they impermissibly restricted people's ability to engage in live entertainment or other First Amendment-protected activities within Windsor Locks. Id. at 15-17. A fourth “count” in the complaint is framed as an administrative appeal of the PZC's decision under state law. Both sides have moved for summary judgment on the first three First Amendment “counts” of the complaint.


         The principles governing the Court's review of a motion for summary judgment are well established. Summary judgment may be granted only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). My role at the summary judgment stage is to decide if there are enough facts in dispute to warrant a trial. Of course, I must view the facts in the light most favorable to the party who opposes the motion for summary judgment and then to decide if those facts would be enough-if eventually proved at trial-to allow a jury to decide the case in favor of the opposing party. If the facts do not rise to the level that would allow a reasonable jury to rule in the opposing party's favor, then there is no point in allowing the lawsuit to proceed, and the motion for summary judgment will be granted. See generally Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam); Pollard v. New York Methodist Hosp., 861 F.3d 374, 378 (2d Cir. 2017).


         Article III of the Constitution limits the jurisdiction of the federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. From this requirement that there be an actual “case” or “controversy” for a court to resolves comes the principle that any plaintiff in a federal court must have “standing” to assert his or her claim-specifically, a plaintiff must show (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. See Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)); E.M. v. New York City Dep't of Educ., 758 F.3d 442, 449-50 (2d Cir. 2014). Moreover, even if the parties themselves have failed to raise the issue, the Court must dismiss an action if it discovers at any time during the litigation that the plaintiff lacks standing. See Fed. R. Civ. P. 12(h)(3); Keepers, Inc. v. City of Milford, 807 F.3d 24, 39 (2d Cir. 2015).

         Here it is readily apparent that plaintiffs lack standing. Although plaintiffs have challenged the failure of the Town's zoning code to allow them to host topless dancing activities, they have not challenged a cognate regulation of the State of Connecticut that independently precludes them as liquor license permittees from engaging in the same conduct. At the relevant times in this case, Pool Table Magic had a permit to sell alcohol that was issued under the State of Connecticut's Liquor Control Act, Conn. Gen. Stat. § 30-74. A Connecticut liquor regulation in turn prohibits any person from being employed or otherwise used on such premises holding a liquor permit while such person is “unclothed or in such attire, costume or clothing as to expose to view any portion of the female breast below the top of the areola. . . .” R.C.S.A. § 30-6-A24(b); see also Inturri v. Healy, 426 F.Supp. 543, 549 (D. Conn. 1977) (three-judge court decision upholding this regulation against challenge under the First Amendment and Equal Protection Clause).

         If a plaintiff challenges a law that forbids certain conduct when that very same conduct is also prohibited by a separate law that the plaintiff has not challenged, then a plaintiff lacks standing. A court cannot provide any meaningful relief to such a plaintiff, because-regardless of the outcome of the plaintiff's challenge to the first law-the plaintiff will remain subject to the prohibition of the second law that has not been challenged. Numerous courts have concluded in like circumstances that standing is lacking because any grant of relief would not redress the claim of injury suffered. See, e.g., Mercer Outdoor Advert., LLC v. City of Hermitage, Penn., 605 F.App'x 130, 132 & n.2 (3d Cir. 2015); White v. United States, 601 F.3d 545, 552 (6th Cir. 2010); Maverick Media Group, Inc. v. Hillsborough County, Fla., 528 F.3d 817, 820-23 (11th Cir. 2008) (per curiam); Midwest Media Property, L.L.C. v. Symmes Tp., Ohio, 503 F.3d 456, 461-62 (6th Cir. 2007); Covenant Media of SC, LLC v. City of North Charleston, 493 F.3d 421, 430 (4th Cir. 2007).

         Following this approach, I conclude that plaintiffs here lack standing to challenge the Windsor Locks zoning code. Even if I ruled for plaintiffs that the Town's zoning code violates the First Amendment, plaintiffs' proposed conduct would still have been illegal under R.C.S.A. § 30-6-A24(b), and any relief I might order would not redress plaintiffs' injury.[3]

         As this case has been pending for many years and may be subject to further review, I will also, for the sake of judicial economy, address the merits of plaintiffs' First Amendment claims. I conclude those claims are without merit, and this conclusion forms an alternate basis for my ruling dismissing this case.

         The First Amendment

         The First Amendment provides in relevant part that Congress may make no law that abridges the freedom of speech. U.S. Const. Amend. I. The protections of the First Amendment of course have long been applicable by incorporation under the Fourteenth Amendment against the States and their localities such as Windsor Locks. See U.S. Const. XIV; Cantwell v. State of Connecticut, 310 U.S. 296, 303 (1940).

         When a court is faced with a First Amendment challenge to a law that regulates expressive conduct, the court must decide at the outset what standard of review to apply (i.e., how strong the governmental interest must be and how strongly the government must show that its interest is appropriately served by the law without incidental impact on protected speech activity). The Supreme Court has long made clear that when the government regulates expressive activity on the basis of its content, then the law is subject to the most demanding “strict” form of scrutiny. See, e.g., Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994). By contrast, when regulations affect speech but are unrelated to the content of speech, then they are subject instead to some form of less demanding “intermediate” scrutiny. Ibid.; see generally Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267 (2007).

         Strict Scrutiny

         Plaintiffs contend that the Town has engaged in content-based regulation of their right to engage in topless dancing entertainment. I do not agree. In view of the government's interest in limiting the secondary effects on communities of adult-oriented businesses, the Supreme Court has long rejected the argument that the regulation of adult-oriented businesses amounts to content-based regulation that warrants the application of strict scrutiny. See, e.g., Young v. American Mini-Theatres, Inc., 427 U.S. 50, 70 (1976); Renton, 475 U.S. at 46-49. True enough, the notion that a law that targets adult-oriented speech is not content-based may well be “something of a fiction.” See Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 448-49 (2002) (Kennedy, J., concurring). And the Supreme Court has more recently ruled in a quite different context that the determination of whether a regulation is content-based should be based solely on Case 3:13-cv-01285-JAM Document 83 Filed 09/18/17 Page 10 of 29 whether the regulation on its face classifies on the basis of content (and presumably to the exclusion of the consideration of secondary effects). See Reed v. Town of Gilbert, 135 S.Ct. 2218, 2227 (2015).

         Nevertheless, Young and Renton remain good law. It is not for me to repudiate these decisions by ruling that the regulation of adult-oriented businesses amounts to content-based regulation and warrants the application of strict scrutiny. See, e.g., BBL, Inc. v. City of Angola, 809 F.3d 317, 326 & n.1 (7th Cir. 2015) (noting that “as long as one purpose of the ordinance is to combat harmful secondary effects, the ordinance is regarded as content neutral (despite the legal fiction) and thus intermediate scrutiny applies” and that “we don't think Reed [v. Town of Gilbert] upends established doctrine for evaluating regulation of businesses that offer sexually explicit entertainment, a category [of speech] the Court has said regulates the outer fringes of First Amendment protection”); see also Flanigan's Enterprises, Inc. of Georgia, 2017 WL 3475481, at *5-6 (11th Cir. 2017) (per curiam) (same); Free Speech Coal., Inc. v. Attorney ...

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