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Felice Rubino v. Town of Babylon and Suffolk County Police Department

December 4, 2012


The opinion of the court was delivered by: Hurley, Senior District Judge:


Plaintiff Felice Rubino ("plaintiff") commenced this action against defendant Town of Babylon (the "Town")*fn1 and asserts that the Town violated his constitutional and civil rights by "raiding and closing down [his] place of business." (Am. Compl. ¶ 7.) Presently before the Court is the Town's motion for summary judgment, made pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the Town's motion is granted.


The following material facts, which are drawn from the Amended Complaint and the parties' submissions, are undisputed unless otherwise noted.*fn2 The Property and the Zodiac Lounge

Plaintiff, a New York State resident, operated an establishment known as the Zodiac Lounge, located at 760 Sunrise Highway in West Babylon, NY (the "Property"). Plaintiff purchased the Property on August 12, 1998. The Property is located in a "business EB zone" but is adjacent to a residential neighborhood. (Def.'s 56.1 ¶ 4.)

Prior to plaintiff's purchase of the Property, it was the home of a "'rough and tumble bar' which was a source of conflict with the residential neighbors." (Id. ¶ 5.) At the time plaintiff purchased the Property, the structure that housed the "rough and tumble bar" remained, but was vacant. Plaintiff "planned to do extensive renovations to the structure and open and operate a bar catering to gay clientele." (Id. ¶ 6.) To that end, plaintiff engaged an architect who provided a proposal dated March 1, 1999, (the "Proposal"), "which outlined the necessary legal and practical steps required to be completed in order to perform the extensive interior and exterior renovations requested by [p]laintiff." (Id. ¶ 7.)*fn3 The renovations ultimately undertaken by plaintiff "rebuilt the whole place" from "nuts to bolts," and took eight years to complete. (Id. ¶ 11.)

Applications Granted by the Town of Babylon

During the course of the renovations, plaintiff applied for many required permits from various departments within the Town and, throughout that process, plaintiff "was open about the fact that he is homosexual and that he intended to open an 'alternative lifestyle' or 'gay' bar." (Id. ¶ 13.) Plaintiff admits that the Town granted, in full or part, every application that he submitted regarding the construction and operation of his establishment. (Id. ¶ 14 (citing Rubino Dep. at 39 & 96).)

In late 1999, plaintiff applied for building permit No. 118439, which was granted. On May 8, 2001, plaintiff filed an application with the Town Planning Board seeking to convert the vacant structure on the Property into a thirty-six seat coffee shop. (Id. ¶ 16.) Several hearings were held, including a public hearing on October 7, 2002, which was attended by several residents of the neighborhood who opposed the application. (Id. ¶ 17.) As plaintiff's then-attorney noted at the time, "the primary concern voiced by the neighbors . . . was the proposed creation of a facility that would serve alcoholic beverages at this location." (Id.; Def.'s Ex. I (Feb. 11, 2006 Letter of Stephen W. Kretz, Esq.).)*fn4

After the October 7, 2002 meeting, plaintiff, on the recommendation of counsel, "decided to substantially modify his plans and remove any provisions for the service of alcohol at the premises, and agree[d] that 'non-alcoholic conditions' be imposed." (Id. ¶ 18.) Plaintiff re-submitted plans with "a substantially altered floor plan for a coffee shop serving only food and non-alcoholic beverages." (See id. ¶ 19; Def.'s Ex. I.) The re-submitted building permit application was ultimately approved on April 26, 2004 by the Town's Planning Board subject to certain covenants and restrictions, which included a prohibition on the service of alcohol and a restriction that the "hours of operation be[ ] no later than 11:00 pm weeknights (Sunday -- Thursday) and 12 [am] weekends (Friday and Saturday). (Id. ¶¶ 19, 20 (citing Def.'s Ex. H).)

In addition to the building permit, plaintiff filed applications with the Town Zoning Board of Appeals seeking several variances related to off-street parking spaces, front yard setbacks, and the connection of two buildings. All of these requested variances were approved on August 12, 2004. (Id. ¶ 21.) Subsequently, plaintiff applied for another building permit to maintain "irregular interior alterations for the cafe with 36 seats, and exterior alterations and site work." (Id. ¶ 22.) Plaintiff's application was granted and the Town issued building permit 2006-0426 on April 28, 2006. (Id.) Plaintiff also applied for, and was granted, a public assembly permit for the Zodiac Lounge on January 19, 2007. (Id. ¶ 23.) A certificate of occupancy was issued on February 22, 2007, (id. ¶ 24), and contained virtually the same covenants and restrictions as were placed on the original building permit issued in April 2004.

In February 2007, plaintiff opened the Zodiac Lounge for business. In May 2007, plaintiff filed an application with the Town Zoning Board of Appeals seeking to modify the applicable covenants and restrictions prohibiting the sale of alcoholic beverages at the Property. (Def.'s Ex. N.) In plaintiff's application, he asserted that his inability to serve alcohol had "placed a significant strain on the successful operation of this business," and that "[p]otential customers have walked away from the Cafe on a daily basis because beer or wine could not be served to accompany their meal." (Id. at 1.) Following a hearing on plaintiff's application, the Zoning Board of Appeals granted the application and modified the covenants and restrictions to allow plaintiff to serve beer and wine. (Def.'s 56.1 ¶ 28.) Plaintiff, however, was still prohibited from serving or allowing the consumption of any alcoholic beverages other than beer and wine on the Property. (Id.)

The August 28, 2008 Incident

At some point between 11:30 p.m. and 12:00 a.m. on August 28, 2008, members of the Suffolk County Police Department and the Town of Babylon Code Enforcement Division entered the Zodiac Lounge to inspect the premises. (Id. ΒΆ 31.) These Town officials noted several Town Code violations and issued plaintiff and the Zodiac Lounge several summonses for, inter alia, (1) posting a wall sign and displaying a portable sidewalk sign without a permit, (2) using the property for residential purposes, (3) allowing the business to be open at 11:55 p.m. on a Thursday evening, in violation of the applicable covenants and restrictions, (4) allowing the business to operate as an adult use within 1,000 feet of residential lots, ...

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