Agenda - Planning Commission - 09/02/2004

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Page 4 -- August 10, 2004 Appeal -- Adult business indicted in state criminal court Wants to have its case heard in federal distm'ct court Citation: Lui v. Commission on Aduh Enrertainment £stabIishments of the State of Delaware, 3rd U.S. Circuit Court of Appeals, No. 03-2437 i2004) The 3rd Circuit has jurisdiction over Delaware, New Jersey, Pennsylvania, ~md the Virgin Islands. DELAWARE (05/26/04) _z_ Lui owned Fantasia Restaurant & Lounge Inc., an establishment planning to provide exotic dancing that had yet to be constructed. In order to receive the necessary permits, Fantasia had to satisfy the state's zoning and licensing taws. Lui filed a zordng request to begin construction on Fantasia. However, Lui's zoning request was denied because Fantasia was located within 2,800 feet of a church. Soon therealker, Fantasia opened for business without the necessary, permits. Lui was indicted in state criminal court. Lui asked the state court to dis- miss the indictment, but it refused to do so. Lui appealed, filing a complaint in the federal district court. He argued he should be entitled to defend himself in federal court instead of state court because he raised claims concerning his federal constitutional fights. DECISION: Affirmed. Lui was not entitled to have his case in federal court. It was undisputed Lui was defending a pending criminal prosecution in state court. The state's criminal prosecution of Lui implicated important stare interests, namely the state's effort to control the negative'effects of adult enter- tainment establishments through the enforcement of its zoning laws. The submissions made by Lui in defense of the stare criminal charges were identical to the complaint he filed in federal court. Thus, it was clear Lui had the opportunity to raise his federal constitutional claims in state court. Ultimately, Lui raised all his. claims in state court and could not raise them again in federal court. see also; N.~J/ E;~terprises v. City of Houston, 352 F. 3d 162 (2003). see also: Desig' ?iz~a b~c. v. Ci~ of Wilkes-Barre, 321 F. 3d 4]] (2003). Variance ~ Developer claims variance denied because of personal animosity Prese2zts e~idence of commission ethics violation and Prior confrontation Circus'ion: Uniq,te Properties L£C v. The Terrebonne P,~rish Consolidated Government, U.S. District Courtjbr the Eastern District of£ouisiana, No. 01- 3503 (2004) LOUISIANA t06/09/04) -- In 2000, Unique Prope~ies LLC submitted an application fer approval of the Bergeron Street subdivision. Namely, it requested ,© 2004:3uinian :%[}ii~n,~q Grauo. Any reproduc',ion is prolnibited. For more inmrmation please call (617) 5424048. 82