Diva's Inc. v. City of Bangor
| Citation | 411 F.3d 30 |
| Decision Date | 09 June 2005 |
| Docket Number | No. 03-1917.,03-1917. |
| Parties | DIVA'S INC. d/b/a Divas; Diane Cormier, formerly known as Diane Cormier-Youngs, Plaintiffs, Appellants, v. CITY OF BANGOR; Michael R. Crowley, Bangor City Council; Nichi Farnham, Bangor City Council; Frank Farrington, Bangor City Council; Gerry G.M. Palmer, Bangor City Council; John Rohman, Mayor of Bangor; Judith Vardamis, Bangor City Council, Defendants, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Jeffrey M. Silverstein, with whom Billings & Silverstein, was on brief for appellant.
Mark V. Franco, with whom Thompson & Bowie, LLP, was on brief for appellees.
Before TORRUELLA, Circuit Judge, STAHL, Senior Circuit Judge, and OBERDORFER,* Senior Circuit Judge.
This case is part of a lengthy dispute between Plaintiff-Appellant Diva's, Inc. ("Diva's"), an adult entertainment bar located in Bangor, Maine, Plaintiff-Appellant Dianne Cormier-Youngs, the owner of Diva's, and Appellee City of Bangor, Maine. Also involved in the instant action are various Bangor government officials in their official and individual capacities (collectively, "Individual Appellees"). We decide today an appeal from two district court orders which together dismissed all of Appellants' claims, affirming in part and reversing and remanding in part.
There are several ordinances and statutes involved in this dispute. The first is Bangor City Code ("Bangor Code") Chapter 228 on Public Morals. Chapter 228 contains a provision that regulates the location of commercial establishments offering nude dancing. See Bangor Code § 228-14. That section provides that establishments offering nude entertainment can only be located in certain zoned districts, and that operators of a commercial establishment offering nude entertainment must obtain a certificate of occupancy, which will not be granted if the establishment is located within 500 feet of a litany of establishments including: another nude entertainment establishment, an establishment licensed to sell alcohol, a church, school, public park, public library, or residentially-zoned district.1 Diva's cannot obtain a certificate of occupancy without a variance as it is located within 500 feet of a church.2 Chapter 228 also regulates the operation of nude establishments by prohibiting such establishments from serving alcohol. See Bangor Code § 228-15(c).
The second provision of the Bangor Code at issue here applies to establishments that sell alcohol in conjunction with the provision of non-nude entertainment. See Bangor Code Chapter 61. A liquor licensee desiring to have live entertainment, that is, dancing or music performed by something other than a mechanical device, must apply for a special amusement permit pursuant to Article II of Chapter 61 of the Bangor Code.3 Although an applicant may properly seek a special amusement permit for "dancing," the dancing cannot be "nude entertainment," as defined by Bangor Code Chapter 228. This means, in essence, that female dancers in an establishment that serves alcohol must, in addition to not violating the provisions of Chapter 228, have their buttocks and the areola area of their breasts covered with an opaque covering.4
With this background in mind, we turn to the history of Diva's.
Diva's opened as nude dancing establishment and juice bar in 1996. In 1999, Bangor amended Chapter 228 of the Bangor Code to add, inter alia, the provision prohibiting nude entertainment establishments from being located within 500 feet of a church. Because Diva's is located next to a church, it is unable to obtain a certificate of occupancy without being granted a variance.6 Diva's challenged the ordinance in the Maine Superior Court and lost. Diva's appealed the Superior Court decision, but entered into a settlement agreement ("settlement agreement") before the appeal was decided. In the settlement agreement, the City of Bangor gave Diva's the right to continue to operate as a nude dancing establishment, essentially in violation of the new Section 228-14, until May 31, 2001. In return, Diva's agreed to withdraw the appeal, cease nude dancing on its premises on or before May 31, 2001, and to never challenge the constitutionality or validity of Bangor Code Chapter 228 as written at the time of the settlement in any forum.
In anticipation of the May 31, 2001 deadline, Diva's began the process of converting into a "bikini lounge"; that is, an establishment that would serve alcohol in conjunction with bikini-clad dancing.7 Diva's applied for a liquor license and special amusement permit which would allow it to provide live dancing and musical entertainment in conjunction with the provision of alcohol.
On May 30, 2001, as part of the permitting process, the City Council of Bangor ("City Council") held a public hearing. Although the City Council approved the permit for the liquor license, it denied the special amusement permit. As entitled by statute, Diva's requested a written explanation of the reasoning for the denial of the special amusement permit, and the City Council responded by stating in writing that it was concerned that the "bikini lounge" would soon revert back to a nude dancing establishment in violation of Sections 228-14 and 61-17 of the Bangor Code, and that granting the permit would negatively affect public health, safety and welfare.
In response, Diva's and Cormier-Youngs appealed the decision of the City Council to the Bangor Board of Appeals and filed a federal lawsuit against the City of Bangor in the United States District Court for the District of Maine ("federal district court"). On June 20, 2001, the Bangor Board of Appeals reversed the decision of the City Council and on June 21, 2001, issued an order granting the special amusement permit for the "bikini lounge."8
One day later, on June 22, 2001, Diva's and Cormier-Youngs invited the public to witness an "act of civil disobedience." When the invitees arrived, they observed the Diva's dancers performing in "pasties" and "G-string" underwear, in violation of Bangor Code Section 61-17 for liquor licensees because the dancers exposed their buttocks.
The City of Bangor responded by filing a civil enforcement action against Diva's in the State of Maine District Court ("state district court") for violating Bangor Code Sections 228-14 and 61-17. Diva's moved to dismiss, arguing, inter alia, that Bangor Code Sections 228 and 61-17 as written violated the First and Fourteenth Amendments to the Federal Constitution. On August 29, 2001, the Maine District Court denied Diva's motion.
Diva's and Cormier-Youngs subsequently were permitted to amend their federal complaint ("amended complaint") to include as defendants the Mayor of Bangor and the City Council members who voted against granting Diva's a special amusement permit. The amended complaint also asserted: (1) a facial challenge to the constitutionality of Bangor Code Section 61-17 and several claims under 42 U.S.C. § 1983 (collectively, "Count One")9; (2) a state law breach of contract claim alleging that the City of Bangor had violated the 1999 settlement agreement by denying the special amusement permit ("Count Two"); (3) a claim alleging tortious interference with Diva's and Cormier-Youngs' ability to contract with "talent, support staff and vendors" ("Count Three"); (4) a claim that Appellees had conspired to violate Diva's and Cormier-Youngs' constitutional rights in violation of 42 U.S.C. § 1985 ("Count Four"); and (5) an intentional infliction of emotional distress claim on behalf of Cormier-Youngs individually ("Count Five"). The claims requested monetary, declarative, punitive and injunctive relief.
The City of Bangor and the Individual Appellees moved to dismiss, and, while the motion to dismiss was pending in federal court, trial was held on October 5, 2001 in the state court civil enforcement action against Diva's. The state district court decided in favor of the City of Bangor, and Diva's appealed the decision to the Supreme Judicial Court of Maine. On December 20, 2001, the federal district court dismissed Diva's and Cormier-Youngs' claims contained in Counts Two (breach of contract), Three (tortious interference), Four (Section 1985 conspiracy), and Five (intentional infliction of emotional distress). The district court also dismissed Appellants' Section 1983 claims contained in Count One against the Individual Appellees in their individual capacities, and determined that Cormier-Youngs lacked standing to pursue individually the Section 1983 claim portion of Count One. This left only Diva's and Cormier-Young's facial challenge to Bangor Code Section 61-17 and Diva's Section 1983 claim against the City of Bangor and the Individual Appellees in their official capacities.
As to Diva's and Cormier-Youngs' challenge to the facial constitutionality of Bangor Code Section 61-17, the federal district court raised the issue of Younger10 abstention sua sponte, and concluded that principles of comity dictate that it should abstain from deciding the facial constitutionality of the Bangor Code Section 61-17 because there was an ongoing state proceeding against Diva's to enforce that provision. The court also found that comity dictated that it refrain from deciding whether Diva's had given up the right to challenge the facial constitutionality of the Bangor Code provisions by signing the settlement agreement.11 The court then dismissed the facial challenge portion of Count One.
As to Diva's Section 1983 challenge portion of Count One against the City of Bangor and the Individual Appellees in their official capacities, the federal district court issued a stay pending the Maine Supreme Judicial Court's decision in the state court enforcement proceeding.
On April 15, 2003, the Maine Supreme Judicial Court issued its decision in...
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