Legal Council for Masters Club LLC Addresses Tax Payers

Masters Club doesn't get the go ahead

Today was the final scheduled day for the preliminary injunction hearing in Masters Club v. East Hartford and no ruling either way has been made. It appears three days was just not enough time.

The JI has coverage of Wednesday’s events online now and I expect they’ll have some coverage of today’s events online tomorrow. The story is here.

Based on my conversations this evening with people from both sides it sounds like this issue has a long way to go before the preliminary injunction request is resolved. Experts are needed and probably more days in court later this year or even into next year. This means that for now the town’s regulations as they apply to Masters Club and all adult establishments still stand and Masters Club is not coming to Roberts Streets in the near future.

From what I’ve heard the case presented by Coleman was lacking any real punch on the issue of statements that may have been made by the Mayor and witnesses listed on the witness list never made it to the stand or even the court room.

For today East Hartford is the victor, if only by a lack of a ruling. I’ll take it.
It’s a good thing I didn’t try to go see the hearing while I was in New Haven Tuesday after all. The hearing actually happened in Bridgeport so I never would have found it. 

UPDATE
The Judge has made an order following the three day hearing:

SCHEDULING ORDER: Following three days of hearings on Plaintiff’s Motion for Preliminary Injunction and after conferring with counsel, the Court hereby issues the following scheduling order: Plaintiff will disclose its experts and provide Defense counsel with a 26(a) report by November 17, 2008. Plaintiff may also depose Defendants’ consultant or other fact witnesses during this time period. Defendants will depose Plaintiff’s experts by December 15, 2008. Defendants will then disclose their experts and provide Plaintiff’s counsel with a 26(a) report by January 21, 2009. (If Defendants choose not to use expert witnesses, counsel should notify the Court as soon as possible, but no later than January 21, 2009.) Plaintiff will depose these defense experts by February 21, 2009. The hearing on the motion for preliminary injunction will be continued on March 2-4, 2009. If, however, Defendants decide not to use any expert witnesses, the Court has set aside January 27-29, 2009, for the continuation of the Preliminary Injunction hearing. SO ORDERED. Signed by Judge William I. Garfinkel on 9/18/2008. (Smith, M.) (Entered: 09/18/2008)

Basically, it will be early March of 2009 before Masters Club can even hope to get an OK to go ahead. Although if they are successful in challenging the last amendment to the zoning regulations this may not hold true since the special permit would be in force again along with all it’s unconstitutionality.

UPDATE #2

The JI has added another article on the hearing as expected.

JI report suggests favorable results for town in strip club battle

The JI has an article by Alex Wood on the first day of the Masters Club v.  East Hartford preliminary injunction hearing.

From the sound of the article the judge is not particularly concerned with the motive of the town in creating new regulations. This would mean that Masters Club is sunk, since this is likely the entirety of their case, apart from a potential effort to show through testimony of local land owners that there is insufficient alternative means of communication.

From the article:

The judge asked more than once during Tuesday’s hearing whether Masters Club has considered applying to change the zoning of the Elks Club from I-2 to I-3 to permit development of the club.

Kim Coleman, the Bethany lawyer representing the club, cited several reasons she hasn’t done so, including the ban on alcohol sales in I-3 zones.

“I would not want to change to an I-3 because I could not serve alcohol,” she said.

An issue Garfinkel didn’t clearly resolve Tuesday is whether he will consider the town’s motives for the changes in the zoning regulations.

Coleman maintains that the real purpose of the regulations is to block new sexually oriented establishments, not to reduce their “secondary effects.” She cited testimony Kayser gave in a “deposition” that the PZC changed the zoning regulation to make it constitutional.

“Is that bad?” Garfinkel asked.

“That’s a classic case of a laudatory motive rather than an illicit motive,” the judge added.

This is pure speculation so far, but we’ll see what reports come out today. Maybe I’ll even get a statement, though I wouldn’t count on one until tomorrow evening.

When strip clubs won't back down

Masters Club has filed an appeal of the Planning and Zoning Commission’s July 31st decision which removed removed the special permit requirements for adult businesses and allowed them permitted use in all I-3 zones. The appeal makes the following claims:

Commission’s decision and administrative findings, inferences, conclusions and decisions relating thereto are:

a. in violation of constitutional, statutory and/or agency regulatory provisions;

b. in excess of the statutory authority of the agency;

c. made upon unlawful procedure;

d. affected by other errors of law;

e. clearly erroneous in view of the reliable, probative and substantial evidence of the whole record; and

f. arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

In short the appeal contends that the text of the amendment was changed substantially enough so as to change the meaning and effect of the application as originally filed prior to the second public hearing. Basically the first application text was typed out incorrectly and had the effect of modifying the special permit rules. The second application text removed the special permit rules entirely as they relate to adult business. It is Masters Club’s claim that the application’s effect can not be modified so severely without a new application being filed, which didn’t happen because of time constraints.

According to the documents the P&Z is being summoned October 7th for a court appearance in Hartford Superior Court which means this action, if successful would not invalidate the change prior to the preliminary injunction hearing September 16,17,18.

The text of the appeal is here.
Masters Club Zoning Appeal 

 

Also, it appears that Masters Club has filed suit against the East Hartford and Hartford Elks. The claim here is that the East Hartford Lodge intentionally misrepresented a lease agreement (which I presume is for the cell tower) by not being forthcoming about an amendment to the lease which they had entered into reducing the lessee’s rent. The complaint further alleges that the East Hartford Elks after the sale transferred half a million dollars to the Hartford Elks out of the sale proceeds of the property making that 500K that the Hartford Elks now possess available for payment of any judgement.

You can read the complaint here. You’ll have to forgive the quality. The Hartford Superior Court clerk charges $1.00 per page to copy (ridiculous) so I snapped pictures with my cell phone of the document and assembled them together.
Masters Club v. Elks 

Masters Club is gearing up for trial. I was informed today that I may be subpoenaed, though I can’t imagine why anything I say would matter in court. Update 09/11/08 – It sounds like I won’t have to make a court appearance. Lucky me.

Video: Town Council – August 26th

The agenda for the council meeting Tuesday night was considerable and unfortunately I ran out of battery before the council ran out of agenda. The video of what I got is below. I believe I only got about 2 minutes through the adult ordinances discussion.

There were some very notable items on the agenda Tuesday.

Officer Todd Mona and his dog Primo were recognized for their receipt of the 2007 Daniel Wasson Memorial K-9 Award.

The EHPD K-9 Division was recognized for their accomplishments in placing 1st as well as receiving multiple best in show awards in the 2008 Canine Olympics.

The Allstars softball team received recognition for their second championship domination in a row. Councilman Weinberg expressed his excitement at this second win being proof that the first wasn’t a fluke.

The council also discussed and passed the adult ordinances as recommended by the ordinance committee. What was notable in the discussion was when Chairman Kehoe was describing why and what changes were made from the prior version which was spoken on at the public hearing. Although Councilman Horan spoke precisely as required in describing the purpose of the legislation, mitigation of secondary effects, Kehoe and Weinberg betrayed this purpose.

At one point Weinberg made a statement that although federal law (failing to realize it is the constitution not federal law which requires it, or not recognizing the difference in the two) requires us to permit adult businesses in town these ordinances are going to make them not want to come to town. In other words these ordinances are in his view intended to or will have the effect of causing someone who wishes to open or operate a protected adult business to censor their own speech by choosing not to do so. That is unconstitutional as well.

Kehoe in his explanation of the changes to the ordinances explained on multiple items how they were changed in this final version because their lawyer, Mr. Gerard, told them they were indefensible since they could not come up with any plausible way they would mitigate secondary effects. In short, Kehoe admitted through the words that lay between the lines that in drafting these ordinances the primary concern of the council was preventing adult businesses from operating in town with secondary effects being an after thought considered only for constitutional defense. Are these public betrayals of the intent and purpose statement which preface the ordinances enough to give Attorney Silver or Coleman some some rope to hang them with? That I don’t know. Let us hope not.

[googlevideo=http://video.google.com/videoplay?docid=-8509558925591775998&hl=en]

Video: August 20th Special Permit Hearing

..

Finally I have the special permit video up. I had all kinds of trouble with google video. I must have uploaded the video 5 times and it wouldn’t convert properly on their end. I tried blip.tv as well, but their system seems to have a problem as well in that it only shows about 1 frame/second. Google finally decided to process my video though.

I also received word that channel 5 will be replaying the hearing on Monday.

Here’s a time line breakout so you can jump around to what you want to see.
00:00:50 – Mike Dayton, town planner
00:07:00 – Thomas Gerard, town legal counsel
00:14:50 – 1st Public Comment
00:22:50 – 2nd Public Comment, Susan Skowronek
00:34:40 – 3rd Public Comment, Susan Kniep
01:00:45 – 4th Public Comment
01:03:00 – 5th Public Comment
01:11:20 – 6th Public Comment
01:23:50 – 7th Public Comment
01:28:50 – 8th Public Comment
01:32:30 – 9th Public Comment
01:33:30 – 10th Public Comment
01:40:25 – 11th Public Comment
01:44:45 – 12th Public Comment, Jon Searles (Me) Roberts St Plan
02:01:30 – 13th Public Comment
02:04:25 – 14th Public Comment
02:08:50 – 15th Public Comment, Kim Coleman legal counsel for Masters Club LLC

[googlevideo=http://video.google.com/videoplay?docid=-7854567128234263013&hl=en]

Adult Entertainment – My Final and Comprehensive Recommendation

I’ve done a fair amount of research through all this adult mess and I think I’ve finally come to a conclusion on just what is the best plan for East Hartford in my estimation.

Granted I’m no adult entertainment mitigation professional, but then neither are our Mayor, Town Planner, Council Members, Development Director or P&Z members. You’d think that the town’s attorneys would be the ones with the knowledge to make up for that fact, but as it turns out the word on the street is that the best constitutional/adult entertainment attorneys are representing the town’s opposition, Masters Club LLC ( Kim Coleman, Norman Pattis constitutional lawyers) and Pitkin Street Entertainment LLC (Dan Silver 35 years representing adult businesses). Given those facts I suppose I may be equally as qualified to present a plan as anyone else so take this for what it’s worth.

Before I go into it we need to analyze the problems that faced us at the beginning of this, what problems face us now, and what problems may face us after tonight.

East Hartford’s adult zoning regulations have been unconstitutional for years and as of this moment are still unconstitutional. These are the particular reasons.

1. Zoning regulations can not be so restrictive that no, or an insufficiently small, area of opportunity exists for adult businesses to open. Multiple court cases have held that 4.5-5% of a towns land available for business use being available for adult businesses is sufficient to pass this test.
2. A special permit requirement is considered a prior restraint on free speech. Any special permit requirement for adult businesses cannot grant unbridled discretion to the decision making body. Unbridled discretion occurs when the particular requirements for approval or denial are not specifically defined in the special permit regulation or the terms used are ambiguous.
3. Any regulation of adult business must be on the merits of secondary effects. Any regulation which can be shown to be against the content of the speech, for example a regulation to ban strippers, is unconstitutional. A regulation based on reasonable expectations of secondary effects to ensure strippers don’t cause or participate in illegal activities, such as a distance requirement from patrons, is perfectly acceptable.

Clearly the town understands this at least partially. To date the town has lifted most zoning requirements for adult businesses alleviating some of the problem from number 1.

Next the town applied for the establishment of two adult zones which would have had no special permit requirements alleviating 1 and 2 above in the North Meadows and Prestige Park area of town. This application was denied after the residents of town pointed out the absurdity of “regulating for secondary effects”, which is the only way the town can regulate in this case, by placing these businesses in known residential areas.

Now the town has applied to lift the special permit requirements on adult businesses as allowed in I-3 zones which would, when combined with the lifting of regulations already completed, alleviate 1 and 2 above. This application also has the same fault of placing the permitted areas in known residential areas betraying the declared intention of mitigating secondary effects.

Unfortunately both plans on their face appear to be more directed towards complying with 1 and 2 above to win a particular lawsuit rather than complying with 1 and 2 above in an attempt to mitigate secondary effects.

Here is my plan and why it works.

1. Establish I-2A and B-3A zones which replace the current B-3 and I-2 zones on Roberts Street whose rules are identical to the existing zones with the addition of adult businesses as a special use. Remove adult businesses as a special use from I-3 zones.
2. Re-write section 503.3 special permit rules for adult businesses such that they define specific requirements which may be in addition to the requirements already imposed in the I-2A/B-3A zones such as minimum distances from schools and residential zoned properties in unambiguous terms.

That’s it. This plan manages to satisfy all the constitutional requirements of regulating adult businesses. It provides an alternative location of sufficient size (5.5% of East Hartford’s business use properties according to the 2003 plan of development) which is about as removed from neighboring residential areas as possible in East Hartford and whose location promotes interstate 84 as the natural travel route to and from any businesses as opposed to residential streets in the heart of town. It removes unbridled discretion from the special permitting process and most important of all it does not contradict itself in the claim of regulating for secondary effects.

Why do I think I’m right on this? That’s the easy one. First, it’s logical. Second I researched and this is what I found:

Mendon, Mass: This city has never had adult regulation until very recently. A neighboring town’s battle and success in repelling a club based on clear zoning regulations inspired them to pass regulations. What Mendon has done is demonstrated three important parts of regulating adult businesses. In their regulations they established a strict zone for adult businesses to locate. They implemented a special permit requirement which has clearly defined requirements for approval. Most importantly they are proof that the moment you pass a regulation defining an adult zone you will get adult businesses. Mendon has had two applications covered by their new rules. The first was denied because it was just down the street from the defined adult zone. The second application is for a location inside the new adult zone which means if all the requirements are met by the applicant there will be a club there.

TJS of New York, Inc. v. Town of Smithtown: In this 2008 case the decision clarified for me somewhat what is needed in creating an adult zone.

Zoning ordinances may limit adult entertainment businesses to particular locations provided that “reasonable alternative avenues of communication” remain for adult oriented businesses” [case citations left out] Reasonableness requires an assessment of available alternatives and whether these alternatives afford a reasonable opportunity to locate and operate such a business.

The decision goes on to reference other decisions establishing guidelines to pass a test of “reasonable alternative avenues of communication”. In short past decisions give guidance that around 5% of the total land available for business use, regardless of current use, availability or economic feasability must be available to adult businesses. The Roberts zone meets this test at 5.5% of the total land for business use.

New York State Office Of General Counsel: This legal memorandum expresses the importance and exclusivity of regulating adult businesses only for their secondary effects and surviving related legal challenges.

Blue Moon Entertainment, LLC, v. City of Bates City: The court was only overturning a previous decision here. Their findings in doing so are what interested me. They support my understanding that special permits are perfectly ok so long as they have a clearly defined set of conditions.

First Amendment
activities generally may be restricted by a zoning ordinance that contains “contentneutral”
regulations governing the time, place, and manner of expression, so long as
the ordinance is designed to serve a substantial governmental interest and does not
unreasonably limit alternative avenues of communication. City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 47 (1986). If, however, the ordinance requires that an
individual obtain a license or permit prior to engaging in the protected activity, then
the licensing scheme is analyzed as a “prior restraint” on the activity.

A licensing scheme generally
must provide narrow, objective, and definite standards to guide the licensing
authority, Shuttlesworth, 394 U.S. at 151, may only impose a restraint for a specified
and reasonable period, and must provide for prompt judicial review. Freedman, 380
U.S. at 58-59; FW/PBS, 493 U.S. at 228. It must not vest unbridled discretion in the
hands of a government official. FW/PBS, Inc., 493 U.S. at 225-26.

Time to speak up on strip clubs… again.

In case you haven’t been made aware by a friend, family or the town announcement system there will be a public hearing tonight before the Planning & Zoning Commission to discuss yet another zone change in favor of adult businesses.

We should all take the opportunity tonight to thank Planning & Zoning Commission members Paul Roczynski, John Ryan, John Grottole and Kathy Salemi for voting against the creation of new adult zones which would have permitted 6 or more adult businesses to infiltrate residential neighborhoods and for not changing their vote under pressure from the mayor. The people spoke clearly at the last hearing and at least these four were listening.

On tonight’s menu is a proposal to remove the special permit requirement for adult businesses in an I-3 zone making them a permitted use. In combination with our current ordinances that means an adult business can be located anywhere in an I-3 so long as it’s not within 1000 feet of another one.

From the agenda:

TEXT AMENDMENT APPLICATION: To allow adult-oriented establishments as a permitted use with special requirements in the existing Section 503 Industrial III (I-3) zone.

This is the entire substance of the agenda. The actual proposed text is not listed and the special requirements it will presumably include are not described.

The hearing will be tonight at 7PM in the town council chambers. Speak up, and don’t be afraid to offer an alternative.

On a side note I was just going through some of the older news stories on this issue. It appears that as far back as January and throughout this process the Mayor has told the media that there were multiple places in town Mr. Chu could have called home and that she was confident our zoning and ordinances would hold up in court. In fact, her story in each of these reports seems to be that she has confidence our zoning and ordinances will stand up in court.

Flash forward to today. We now know that in fact there was not a single place a strip club could have located under the then existing ordinances when Chu came to town (something the Mayor had to be aware of). Then the Town Council went and removed all the restrictions and implemented an 8 month moratorium, a de facto admission that the administration had zero confidence in the existing ordinances. It also seems odd that she captured the media opportunity to stand sword in hand to defend the residents of the 5 or so residential properties near the roberts street location but was then perfectly willing to sacrifice entire neighborhoods to the I-3A/B-3A zone changes when the cameras weren’t there. I can’t help but wonder if our Mayor is trying to play both sides on this issue.

Why must every action taken in regards to the new adult zoning and ordinances be discussed in executive session. We the people have a right to know what is going on here. As expressed at the last public hearing these new ordinances and zoning changes aren’t supposed to be directly targeted at Masters Club LLC. or Pitkin Street Entertainment, so why then is it proper for the administration to hide behind these two lawsuits in executive session when discussing the changes. It seems clear that someone is afraid of proving Kim Coleman’s assertion that that town is acting in bad faith to be true.

EDIT: Here are the areas in town which are zoned I-3 (according to GIS) making them potential strip club locations. Also, please note that it appears that Prestige Park would be targetted by this change (being the main I-3 zone). It seems tonight’s proposed change may just be a repeat of the last proposal sans North Meadows.

I-3 Zones

P&Z says NO to adult zones as the TC reviews new adult rules.

The P&Z commission has finally made their decision on the proposed new B-3A and I-3A zones which would have allowed up to 6 new adult establishments to come to town.

According to the Hartford Courant:

Saying they felt obligated to listen to the voices of the people, members of the planning and zoning commission voted 4-3 Wednesday night to shoot down proposed new regulations that would have allowed strip clubs to operate in two largely residential neighborhoods.

Commission members decided to maintain the town’s current regulations, which allow for such establishments in various industrial pockets throughout town. The vote was met with applause from several residents in the audience at town hall, including a group of residents who live in one of the neighborhoods where the new rules would have allowed adult-entertainment establishments.

As expected Kim Coleman, legal counsel for Mark Chu and Masters Club LLC, intends to refile a lawsuit challenging the existing regulations according to the Courant.

The town council through the ordinance committee is simultaneously working to reform the adult establishment regulations. The committee met on the 19th to review draft ordinances governing adult establishments. Among these according to the meeting minutes are licensing of employees which would involve a criminal background check, fingerprinting and recording of social security and drivers license information. Also the club would have to maintain a monthly list of employees and information on management. I expect that such a list, being submitted to the town, would be public information meaning anybody could see just who in a given month is working at an adult establishment.

I guess that means no more stripping your way through college on the sly.

Government on Demand – April 30th P&Z Public Hearing

In an attempt to improve the viewing experience (at the expense of post length) I have broken up the video into many individual segments. Any segment can be downloaded by clicking on the video to go to google video and clicking the download video for Ipod link on the right.

Now for the video…
Feel free to comment if I didn’t get a name right or I have no name for you.

Start of the public hearing
[googlevideo=http://video.google.com/videoplay?docid=8783132151741655230&hl=en]

Mike Dayton’s Testimony
[googlevideo=http://video.google.com/videoplay?docid=5481561988366872831&hl=en]

Hugo Benettieri’s Testimony
[googlevideo=http://video.google.com/videoplay?docid=7168885925202950493&hl=en]

Phil Michalowski’s Testimony
[googlevideo=http://video.google.com/videoplay?docid=1116742656490555714&hl=en]

Mike Dayton’s Testimony 2
[googlevideo=http://video.google.com/videoplay?docid=-3104869214782383952&hl=en]

Public Testimony

Patrick Sanzo
[googlevideo=http://video.google.com/videoplay?docid=-7410122125864069805&hl=en]

Reginald (?)
[googlevideo=http://video.google.com/videoplay?docid=204646853598248022&hl=en]

Catherine Stevens
[googlevideo=http://video.google.com/videoplay?docid=6230271538889375564&hl=en]

Barbara Austin
[googlevideo=http://video.google.com/videoplay?docid=-777909045368453571&hl=en]

Susan Kniep
[googlevideo=http://video.google.com/videoplay?docid=-4826426773938044965&hl=en]

Michael Sylvestor
[googlevideo=http://video.google.com/videoplay?docid=3241042285851883611&hl=en]

Susan Kniep 2
[googlevideo=http://video.google.com/videoplay?docid=-3377900106958277293&hl=en]

Irene (?)
[googlevideo=http://video.google.com/videoplay?docid=-4295272501323942452&hl=en]

George Franek
[googlevideo=http://video.google.com/videoplay?docid=5534731641515391930&hl=en]

Peter Santoro
[googlevideo=http://video.google.com/videoplay?docid=-6441809549551636232&hl=en]

Jonathan Keller
[googlevideo=http://video.google.com/videoplay?docid=-1147219206541810618&hl=en]

Mike DeGregario
[googlevideo=http://video.google.com/videoplay?docid=4368769788736833410&hl=en]

Kim Coleman
[googlevideo=http://video.google.com/videoplay?docid=-8158289272832326139&hl=en]

Kathy Lombardo
[googlevideo=http://video.google.com/videoplay?docid=8506726968021155175&hl=en]

Janet Rice
[googlevideo=http://video.google.com/videoplay?docid=591673795680000163&hl=en]

Greg Foran
[googlevideo=http://video.google.com/videoplay?docid=-3174224560640911351&hl=en]

Unknown
[googlevideo=http://video.google.com/videoplay?docid=4068385231981160109&hl=en]

Karen Howe
[googlevideo=http://video.google.com/videoplay?docid=-7901084634896906148&hl=en]

Unknown
[googlevideo=http://video.google.com/videoplay?docid=2372174106279897271&hl=en]

Michael Sylvestor Jr.
[googlevideo=http://video.google.com/videoplay?docid=-1418919514888430617&hl=en]

Steve Livingston
[googlevideo=http://video.google.com/videoplay?docid=-5908961909187717257&hl=en]

Salvatore Ingallinero
[googlevideo=http://video.google.com/videoplay?docid=9070715958164534125&hl=en]

Clara Pierceton
[googlevideo=http://video.google.com/videoplay?docid=-7953983522359120584&hl=en]

Unknown
[googlevideo=http://video.google.com/videoplay?docid=3752488304026996785&hl=en]

Anita Morrison
[googlevideo=http://video.google.com/videoplay?docid=-5793757251265910872&hl=en]

Peter Santoro 2
[googlevideo=http://video.google.com/videoplay?docid=-8863953660385219123&hl=en]

Greg Foran 2
[googlevideo=http://video.google.com/videoplay?docid=8737490786104865995&hl=en]

Susan Kniep 3
[googlevideo=http://video.google.com/videoplay?docid=-3433246283750096253&hl=en]

Patrick Sanzo 2
[googlevideo=http://video.google.com/videoplay?docid=1293747739701479833&hl=en]

Don Pitkin
[googlevideo=http://video.google.com/videoplay?docid=4017878779288567697&hl=en]

Kim Coleman 2
[googlevideo=http://video.google.com/videoplay?docid=-8728496470612585029&hl=en]

Reginald ? 2
[googlevideo=http://video.google.com/videoplay?docid=-8122080886508593396&hl=en]

Marc Weinberg
[googlevideo=http://video.google.com/videoplay?docid=3570124340051417617&hl=en]

End of hearing and P&Z action
[googlevideo=http://video.google.com/videoplay?docid=-8906421080912648961&hl=en]

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