Christy v. Servitto (699 F. Supp. 618, 1988)

MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

Nearly three years ago, this Court, in 15192 Thirteen Mile Road Inc. v. City of Warren, 626 F.Supp. 803 (E.D.Mich.1985), was called upon to review various constitutional challenges to section 14.02 of the Warren zoning ordinance. Section 14.02 regulated the ability of adult businesses to locate within the City of Warren. The plaintiffs, five different corporations whose principals proposed to open adult businesses in Warren, attacked the ordinance as void for vagueness, overbroad, and deficient under United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). After conducting two hearings for preliminary injunctions and having taken testimony for nearly four weeks, the Court upheld the portion of section 14.02 prohibiting an adult business from locating within 500 feet of a residential use, an area zoned residential, and from within 1000 feet of a church or school. The Court struck down as unconstitutionally vague, however, the site plan review procedure and procedure for special land use approval because they vested an improper degree of discretion in the reviewing officials.

While 15192 Thirteen Mile Road was still pending, Karen Christy, one of the principals in 15192 Thirteen Mile Road, and Christy Newsreel Services, Inc. brought this action alleging that defendants precluded them from using the building located at 5583 East Eight Mile to open a retail video sales and service store in violation of the first, fifth and fourteenth amendments to the United States Constitution. The Court refused to consolidate this action with 15192 Thirteen Mile Road because this case raised difficult questions concerning the application of section 14.02 and other city regulations not present in the other actions consolidated under 15192 Thirteen Mile Road.

The Court held 46 days of trial in this matter and admitted approximately 200 exhibits. Having reserved its ruling on defendants’ motion at trial for an involuntary dismissal pursuant to Rule 41(b), the Court hereby issues its Findings of Fact and Conclusions of Law in accordance with Rule 52(a).

I. FINDINGS OF FACT A. Introduction

(1) Karen Christy is the sole shareholder of Christy Newsreel Services, Inc. (Newsreel Services), a Michigan corporation formed on November 1,- 1982. Christy, through Newsreel Services, presently operates three adult entertainment businesses: the “Velvet Touch, Video and Gift Boutique,” in Lansing, “Unique Creations,” in Ypsilanti, and the “Velvet Touch, Video and Gift Boutique,” located on 1-69 and referred to at trial as the “Charlotte store.” She also is attempting to open two other stores in the Lansing area. Newsreel Services presently employs approximately 20-80 people.

(2) Christy resides with and has had a social and business relationship with Whitman since 1978; Whitman also is engaged in the operation of several adult oriented businesses throughout the state.. Whii> man presently operates five such stores through Executive Art, Inc.; one each in Lansing, Kalamazoo, Wyoming, Mt. Morris and Warren. Whitman also operates a store in Parma and a store in Flint through a separate corporation, Fashion Design. The sign above each of Whitman’s stores reads “Velvet Touch.”

(3) Michael Servitto was appointed Director of the City of Warren’s Department of Public Service in November 1981, by Mayor-Elect James Randlett, and served in that position until Randlett was defeated in the mayoral election in November 1985.

As Director of the Department of Public Service, Servitto supervised eight divisions: Building and Safety Engineering, Water, Department of Public Works, Service, Sanitation, Engineering, Sewage and Treatment, and Building Maintenance. Servitto testified that work associated with the Water Division and Department of Public Works consumed the majority of his time.

(4) George 0. Bruggeman is Superintendent of the Division of Buildings and Safety Engineering (building department), one of the eight divisions within the Department of Public Service. The building department contains five separate bureaus: Electrical, Building, Plumbing, Heating/Cooling and Zoning. Each bureau employs one or more inspectors who are charged with the responsibility of implementing the City’s ordinances and adopted trade codes which regulate the occupancy of buildings located in the City of Warren.

(5) On December 12, 1978, the Warren City Council adopted by reference, with certain modifications, the Basic Building Code, 1978 Edition, published by the Building Officials and Code Administrators Information, Inc. (BOCA). The BOCA Basic Building Code went into effect on January 1, 1979. The 1981 BOCA Basic Building Code was adopted by reference, again with certain modifications, by the City Council, effective June 13, 1983. Prior to January 1, 1979, the building department applied the Warren Building Code.

The electrical inspectors apply the Warren Electrical Ordinance, the National Electrical Code (N.E.C.) and the Uniform Reciprocal Rules (adopted by the Uniform Reciprocal Council of Southeast Michigan Communities). The zoning inspectors apply the Warren zoning ordinance.

(6) Also within the building department but independent from the other five bureaus is the position of City Plan Examiner. The Plan Examiner reviews building permit applications and any accompanying plans to ensure the application and plans conform to the applicable code provisions.

(7) Under section 119.2 of both the 1978 and 1981 edition of the BOCA Basic Building Code (BOCA Code), an owner is required to obtain a “certificate of use and occupancy,” whenever an existing building is “enlarged, extended or altered to change from one use to another or to a different use within the same use group in whole or in part,_” A certificate of use and occupancy for an existing building is referred to in the City of Warren as a certificate of reoccupancy or as a certificate of occupancy for reoecupancy. “Use group” is defined in section 201.3 as the “classification of a building or structure based on the purpose for which it is used.” Section 202.1 establishes nine use groups: (1) Group A: assembly; (2) Group B: business; (3) Group F: factory and industrial; (4) Group H: high hazard; (5) Group I: institutional; (6) Group M: merchantile; (7) Group R: residential; (8) Group S: storage; and (9) Group T: temporary and miscellaneous. “Use” is defined in section 201.3as “The purpose for which the building or structure is designed, used or intended to be used.”

(8) In order to obtain a certificate of occupancy, an owner of a building or his agent must first obtain a “special permit” requesting reoccupancy inspections. Once the special permit is secured, a date is established in which the owner or agent agrees to be on the premises during a specific period of time for the inspections. Once the inspections are completed, the owner or agent is then apprised of any outstanding violations either by phone or mail by each of the inspectors. Depending on the nature of the violation, the owner or agent may need to obtain a permit from the particular bureau to remedy the violation. It is not uncommon for a building to require several inspections before all the violations are remedied. Once all the violations are corrected and each inspector has issued his approval, a certificate of occupancy is issued.

(9) The determination of whether a building permit is necessary to do certain work, regardless of whether the planned work is to remedy violations resulting from a request for a reoccupancy inspection or simply to remodel the premises, is governed by section 112.1 of the BOCA Code:

112.1 When permit is required: It shall be unlawful to construct, enlarge, alter or demolish a structure; or change the occupancy of a building or structure requiring greater strength, exitway or sanitary provisions; or to change to another use; or to install or alter any equipment for which provision is made or the installation of which is regulated by this code, without first filing an application with the building official in writing and obtaining the required permit therefor; except that ordinary repairs, as defined in Section 102.0, which do not involve any violation of this code shall be exempt from this provision.

Section 102.1 pertaining to ordinary repairs states in relevant part:

102.1 General: Ordinary repairs to structures may be made without application or notice to the building official; but such repairs shall not include the cutting away of any wall, partition or portion thereof, the removal or cutting of any structural beam or bearing support, or the removal or change of any required means of egress, or rearrangement of parts of a structure affecting the exit-way requirements;....

Applications for a building permit are provided at the building department. In filling out an application, section 112.4 provides:

112.4 Description of work: The application shall contain a general description of the proposed work, its location, the use and occupancy of all parts of the building or structure and of all portions of the site or lot not covered by the building or structure, and such additional information as may be required by the building official.

Section 112.5 requires the submission of specifications and plans along with the permit applications:

112.5 Plans and specifications: The application for the permit shall be accompanied by not less than two (2) copies of specifications and of plans drawn to scale, with sufficient clarity and detail dimensions to show the nature and character of the work to be performed.... The building official may waive the requirement for filing plans when the work involved is of a minor nature.

Although section 112.5 indicates that only two copies of plans need be submitted when required, building permit applications request that four copies be supplied. If the projected cost of the work to be done does not exceed $5,000.00, the Plan Examr iner has discretion to accept a sketch in lieu of an architectual drawing.

Once the application is filled out, a clerk at the counter takes the application and assesses the permit fee and determines the amount of the bond to be posted. If necessary, a plan fee is also charged. The Clerk then routes the application and any accompanying plans to the inspectors and Plan Examiner for their approval. The time necessary to process the application is a function of the complexity of the proposed construction and the time of year. Spring and summer are especially busy; an increased number of applications are filed during those months. Approval or rejection of an application may take anywhere from several hours to several weeks.

Once the application is approved, a permit is granted. When the work is completed, the owner or agent contacts the building department and requests an inspection. If the work is “up to code,” the inspector issues his approval.

(10)With respect to obtaining an electrical permit, section 6-226(a) of the Warren Electrical Ordinance states:

It shall be unlawful in the city for any person to install, alter, maintain, service or repair electrical equipment in or on any building, structure or part thereof, or on premises, or cause or permit therein or thereon the installation, altering, maintaining, servicing or repairing of any electrical equipment, without a permit having been obtained therefor as provided herein.

Subsection (b) excepts minor repair work from the need to obtain a permit:

No permit will be required for minor repair work, such as the replacement of lamps or the connection of portable electrical equipment to suitable permanently installed receptacles. Nothing in this section shall be considered as applying to any person engaged in repairing and maintaining electrical appliances.

Section 6-238(13) requires a detailed set of plans and specifications to be submitted “for any wiring or alterations to the electrical system in all buildings using over six circuits_” Section 6-238(13) further states that “electrical drawings shall include such details as lighting layout, circuiting switching, conductor and raceway sizes, wattage schedule, service location and riser diagram, calculations and proposed method of construction drawn with symbols of a standard form.”

(11) Any decision pertaining to the application of the BOCA Code may, pursuant to section 126 of the BOCA Code, (as modified by the Warren ordinances), be appealed to the Building Code Board of Appeals. The Board of Appeals then forwards their recommendation to the City Council. Decisions by electrical officials may be appealed by filing a petition with the Board of Electrical examiners. Warren Electrical Ordinance, Section 6-221(e). The Board must rule on the petition within three days of its receipt. Similarly, a zoning decision may be appealed to the Zoning Board of Appeals which has the authority to reverse, modify or affirm the original decision. City of Warren Zoning Ordinance No. 30, Article XX, Section 20.04.

B. 22640-44 Van Dyke Avenue

(12) The dispute over the use of the building located at 5583 East Eight Mile (5583) was preceded by a confrontation between Whitman and officials from the building department over the use of the buildings at 22640 and 22644 Van Dyke Avenue (22640; 22644) owned by Whitman.

(13) Whitman testified that sometime in March or April of 1977, he obtained a copy of the Warren zoning ordinance and found nothing which would preclude him from opening his adult businesses in Warren. Whitman testified that although he did not know what he would use 22644 for when he first bought it, he later decided to sell adult books; with respect to 22640, he planned to offer nude models for photographing and body painting. He also planned to offer the “Velvet Touch,” a technique he invented and describes as a “light fingertip caress of the skin.” He stated that he purposely omitted telling the building department of his true intention to sell adult books at 22644 and offer nude models for photographing and body painting, as well as the “Velvet Touch” at 22640 for fear the City would amend its zoning ordinance before he could obtain certificates of occupancy. Whitman conceded that he used a series of corporations and assumed names to “sneak up” on the City of Warren. He acknowledge that he has employed this clandestine approach of using assumed names in other cities in order to establish adult oriented businesses in those cities. He also stated that the “Velvet Touch” was devised as a means of avoiding regulations existing in many cities restricting the location of massage parlors.

(14) The confrontation between the City and Whitman engendered by Whitman’s attempt to sneak up on the City is chronicled in the building department file.

(15) On June 20, 1977, Michigan Diversified Properties, through “Tom Johnson,” applied for a special permit for a reoecu-pancy inspection at 22644 for use as a retail record and tape store. A certificate of reoccupancy was issued on July 14, 1977. Although Whitman didn’t recall using the name Tom Johnson, Michigan Diversified Properties, Inc. was an assumed name for Michigan Diversified Business Corp., a corporation owned by Whitman.

(16) The reoccupancy inspection request submitted June 20, 1977, was also utilized for inspections of 22640, and on July 28, 1977, a certificate of reoccupancy was issued to S.M.R. Corporation. S.M.R. was a corporation formed by Whitman.

(17) On August 12, 1977, applications for sign permits were filed for both locations. Sign plans were submitted indicating “Mel-O-Dee Records” would be displayed at 22644 and “Michigan Diversified Corporation” would be displayed at 22640.

(18) Despite Whitman’s attempt to open his store before an unfavorable ordinance was adopted, the City Council, still unaware of Whitman’s intent regarding the use of 22640, adopted ordinance No. 30-545, on September 27, 1977, requiring health spas, massage parlors and establishments offering baths of any kind to obtain special use approval from the Planning Commission before a certificate of occupancy could be obtained. Other businesses requiring approval by the Planning Commission included reducing salons and sports facilities of any type. See 15192 Thirteen Mile Road v. City of Warren, 626 F.Supp. 803, 822 (E.D.Mich.1985), for a discussion of the history of the Warren zoning ordinance.

(19) On November 30, 1977, Gordon Studios, through “Michael Gordon,” applied for a certificate for reoccupancy for the premises at 22640, indicating the proposed use as “portrait painting.” The special permit issued December 1, 1977, indicated “artist studio and office.” A certificate of reoccupancy was issued on February 23, 1978. Gordon Studios was an assumed name of S.M.R., and Whitman testified that he was Michael Gordon. Whitman testified that he never intended to use 22640 as a portrait painting studio.

(20) On March 14, 1978, Detective Gary Maurer of the Warren Police Department visited the premises at 22640-44 Van Dyke pursuant to a complaint that a massage parlor was opening for business. Detective Maurer’s report indicated that the premises was locked. His report further indicated that on the following day he checked both the state and local assumed names divisions for Michigan Diversified Properties, Inc. and Michael Gordon or Gordon Studios, but found nothing filed under those names. (He was unable to locate the filing of the assumed names since none of them were filed with the Michigan Department of Commerce until April 20, 1978, over a month after Maurer’s search.) This information was relayed to Bruggeman later that day.

(21) Acting pursuant to the complaint, Bruggeman, along with Assistant Director of the building department Pat Sankuer, gained entrance to the buildings at 22640-44 Van Dyke on March 16, 1978. Brugge-man and Sankuer testified that they noticed 12 three-foot wide booths which were open in the front in 22644. They further testified that a raised platform had been built which Sankuer indicated was approximately 36" high, and Bruggeman indicated was covered with red shag carpet. Bruggeman also observed a shower in one of the side rooms, and a showcase filled with retail tapes.

(22) Bruggeman and Sankuer immediately posted “no occupancy” stickers on both addresses. The following day someone removed the stickers. They were replaced by building inspector James Zimmerman. The stickers were either removed or painted over several more times during the next several weeks. New stickers were repeatedly posted. Whitman testified that it was he who had removed and painted over the stickers.

(23) On April 6, 1978, Bruggeman notified the building department clerks that the two sign permits reading “Mel-O-Dee Records” at 22644 and “Michigan Diversified Corp.” at 22640 were not to be issued under any circumstances.

(24) On April 7, 1978, Bruggeman sent a letter to Servitto’s predecessor, Public Service Director Paul Van Den Branden, updating him on the activity at 22640-44. In that letter, Bruggeman also stated that following his inspection of the two locations, he was contacted by attorney Howard Siecrist who indicated he represented Michael Gordon, the owner of Gordon Studios. Bruggeman reported the following conversation with Siecrist to Van Den Branden:

In the conversation with this attorney I requested that Mr. Gordon come into the office in order that we could consult with him as to what the intended use of the two buildings would be. Mr. Siecrist indicated he had no intentions of sending Mr. Gordon into the Building Division and further indicated he had a certificate of occupancy by our Division and he was going to open up the places for business.

Bruggeman concluded the latter with the following paragraph:

In summary, it appears that both of these commercial buildings have already started some illegal use and are doing it under close scrutiny so as to avoid both our Divisional personnel and the Warren Police Department. This writer personally made daily trips to Mel-O-Dee Records only to find it locked during the day with notices from the gas and electric companies hung on the door handle. The back door of Mel-O-Dee Records, 22644 Van Dyke Avenue, is now sprayed with black paint, making it impossible to see into the building. The one door on the front which is of heavy steel construction has a lock and is only opened by the owner. All entry into the building must be through the back door.

(25)On April 13,1978, two Warren police officers attempted to gain entry at the Van Dyke locations. They stated in their report:

[We] checked the front and rear doors and found them to be locked. As we were knocking on the backdoor we heard the phone ring. The phone was answered by someone inside and we heard the subject tell the caller that the police were at the door. The subject then came and unlocked the door. As we walked inside the subject went back to the phone and told the caller that we were inside. As we walked past the counter the subject told us it would cost us 50