Courant 1/19/07

From courant.com
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Judge Backs Sex-Business Ordinance
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Some Say Ruling On Topless Bar Will Aid Town In Other Suits

By VANESSA DE LA TORRE
Courant Staff Writer

January 19, 2007

BERLIN — In a key decision that upholds the town’s sexually oriented business ordinance, a federal judge has rejected a lawsuit from Gold Diggers LLC, the firm that wanted to bring exotic dancing back to the Infrared Cafe on New Britain Road.

The lawsuit charged, in part, that the town ordinance violates the Constitution and restricts a stripper’s freedom of expression.

Berlin officials were anticipating the ruling for months. They now believe it could benefit the town in lawsuits filed in November over its rejection of the sex-themed store Very Intimate Pleasures, which wants to open on the Berlin Turnpike next to a residential neighborhood.

“This is a huge day for the town of Berlin,” Mayor Adam Salina said Thursday. “It’s certainly going to strengthen our case in regards to the VIP lawsuit, and I also think this reaffirms our stance and solidifies our decision to not allow businesses such as VIP to come into that location.”

Attorney Dan Silver, who represents both Gold Diggers and Very Intimate Pleasures, said he only had a chance to skim the 40-page ruling but felt that “any decision can be appealed.” He acknowledged that certain aspects of the ruling may affect the VIP cases still in court, but characterized his First Amendment arguments for the two businesses as being “night and day.”

“This decision in no way, shape or form affects our going forward with VIP,” Silver said.

Silver filed the Gold Diggers lawsuit last May after the town denied Wayne David Massa a permit to run a topless bar at Infrared Cafe. The establishment had operated as a sexually oriented business for at least nine years before its permit lapsed in January 2006. Massa, an East Hartford businessman, wanted to change the name to Emerald City and apply for a new license.

But then-Town Manager Herman Middlebrooks Jr. denied the request in March,
saying that it would violate a local law regulating adult businesses. Infrared, located next to a Dunkin’ Donuts and across from Portofino’s Restaurant, is within 250 feet of residentially zoned land. Neighbors had often complained about loud noise and boorish behavior that spilled outside the club.

In his decision, senior U.S. District Judge Warren Eginton dismissed Silver’s argument that the town council had no authority to create an ordinance restricting the location of a business.

Although the planning and zoning board usually has authority over such matters, Eginton interpreted state law as allowing municipalities to “regulate and prohibit the carrying on of any business with adverse impacts to public health.”

On Thursday, Silver said he still believed “very strongly” that the 250-feet distancing requirement is illegal. He added that he likes Eginton and considers him a good judge, but “with all due respect … I think that he was mistaken and that he hasn’t properly interpreted state law.”

Among Silver’s other arguments was that the ordinance is a “regulatory scheme” that violates sexually expressive speech from dancers, and a patron’s right to experience it, with restrictions that were overly broad and vague. A ban on touching, for example, made illegal even a handshake between dancers and patrons, Silver contended.

Eginton ruled that the ban “is clearly directed at preventing prostitution and the spread of communicable diseases, which represents a substantial interest to thetown,” and not at “accidental or other `innocent’ contact, such as a handshake.”

Silver has 30 days to appeal the decision.

Contact Vanessa de la Torre at vdelatorre@courant.com.
Copyright 2007, Hartford Courant

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