369 Mass. 748 (1976), City of Fitchburg v. 707 Main Corp.

Citation:369 Mass. 748, 343 N.E.2d 149
Party Name:CITY OF FITCHBURG v. 707 MAIN CORP. et al. [ 1]
Case Date:February 24, 1976
Court:Supreme Judicial Court of Massachusetts

Page 748

369 Mass. 748 (1976)

343 N.E.2d 149

CITY OF FITCHBURG

v.

707 MAIN CORP. et al. 1

Supreme Judicial Court of Massachusetts, Worcester.

February 24, 1976

Argued Nov. 7, 1975.

[343 N.E.2d 150] Charlotte Ann Perretta, Boston, for defendants.

[343 N.E.2d 151] Edward T. McHugh, Asst. City Sol., Paul P. Rigopoulos, City Sol., and James T. Angelos, Sp. Asst. City Sol., for the City of Fitchburg.

Before HENNESSEY, C.J., and QUIRICO, BRAUCHER and KAPLAN, JJ.

Page 749

BRAUCHER, Justice.

The plaintiff city brought this action to enforce against the defendants an ordinance forbidding the operation of a motion picture theatre without a license. 2 A restraining order, a preliminary injunction and

Page 750

a permanent injunction were issued, and two of the defendants were found to be in contempt and ordered punished. We hold the ordinance unconstitutionally vague both on its face and as applied, reverse all the orders and judgments in question, and direct that judgment be entered for the defendants, dismissing the action.

On February 14, 1975, the city filed a complaint in the Superior Court, alleging that the defendant 707 Main Corp. (707) was operating a motion picture theatre without a license in violation of the ordinance, and demanding a temporary restraining order, a preliminary injunction, and a permanent injunction against such operation. An ex parte temporary restraining order was issued the same day, and a preliminary injunction was issued after hearing on February 21. Also on [343 N.E.2d 152] February 21, the city moved that 707 show cause why it should not be held in contempt of court by reason of noncompliance with the restaining order. On March 5 the city filed a petition for contempt by reason of violation of the preliminary injunction.

After a hearing on March 7, the judge found that valid service was made on 707 on February 21 and that 707 was in contempt. He assessed a fine of $500 a day from February 21 to March 7, and scheduled a further hearing for March 14. On March 14 he appointed a special master to take possession of 707's property; later he ordered the special master to conduct a hearing on March 28 to inquire into the ownership of the theatre premises. On April 16, after the special master had filed his report, a further contempt hearing was held, and the

Page 751

judge found that Johnson, president of 707, was in contempt. After a further hearing on April 28, the judge adjudicated Johnson 'in civil contempt' and sentenced him to six months in jail and to a fine of $15,000.

Also on April 28, the case was tried on the merits. The judge made findings and entered judgment enjoining 707, the ABC Theatre Corporation (ABC) and Johnson from operating the theatre without a license. 707 appealed, and we allowed its application for direct appellate review. A single justice of this court allowed a motion to add ABC and Johnson as parties.

We summarize the judge's findings. On January 23, 1975, 707 sent a letter to the mayor of the city, signed with Johnson's name. Enclosed were a check for $80, a theatre license from the Department of Public Safety, valid until September 1, 1975, and a permit from the board of health of the city, valid until April 30, 1975. The letter requested an annual theatre license and a Sunday license for motion picture entertainment for 'the Fitchburg Theatre, located at 705 Main Street, Fitchburg.' The letter was received in the mayor's office on January 31, and it and the check and a copy of the ordinance were returned on February 3 with a letter from the mayor, the body of which read as follows in its entirety, 'Please comply with attached ordinance of the City of Fitchburg, Chapter 12.' Shortly thereafter the city solicitor conferred with the theatre manager and informed him of what was required in the application for the license. No license for the theatre was issued from January 1, 1975, until trial on April 28, 1975. After the action was begun and a restraining order issued on February 14, and after a hearing on the preliminary injunction on February 21, a letter from ABC, signed by Johnson, was received by the mayor, 'referring to the operation of the Fitchburg Theater at 705 Main Street as having been by ABC Corporation' in 1974 and 1975.

The judge also found that 707 never had a license, and had operated the theatre since January, 1975. The

Page 752

mayor, as licensing authority, 'would be confused as to who was operating the theater and who should apply for the license.' This state of confusion, in the judge's view, relieved the mayor from giving reasons for refusing the application, as required by the ordinance.

1. Validity of the ordinance on its face. A city or town may require that motion picture theatres be licensed. G.L. c. 136, § 4, and c. 140, § 181. Expression by means of motion pictures, however, is included within the free speech and free press guaranties of the First and Fourteenth Amendments to the Constitution of the United States. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). Brattle Films, Inc. v. Commissioner of Pub. Safety, 333 Mass. 58, 60, 127 N.E.2d 891 (1955). A law which requires that the exercise of First Amendment rights be subject to license must contain narrow, objective and definite [343 N.E.2d 153] standards, or it is void for vagueness. Shuttlesworth v. Birmingham, 394 U.S. 147, 150--151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969), and cases cited. See Commonwealth v. A Juvenile, --- Mass. ---, --- - --- n. 15, a 334 N.E.2d 617 (1975).

Under § 12--14 of the ordinance the license application must 'fully and specifically describe the conditions of the proposed exhibition, . . . and the premises . . . to the extent that such conditions or premises (sic) would affect the public safety, health, or order.' Under § 12--16 the mayor may impose conditions upon a license which 'relate to public safety, health or order.' The regulation of public safety, health or order is the subject of many volumes of our statutes and of additional volumes of administrative regulations. The ordinance provides no objective standards to limit the mayor's discretion in selecting the policies to be followed in granting or denying license applications. Cf. Yenofsky v. Silk, 305 F.Supp. 991, 995 (D.Mass.1969).

2. Validity of the ordinance as applied. We recognize that...

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