White River Amusement Pub. v. Town of Hartford, Vt.

• Decision Date: 15 December 2005
• Docket Number: No. 1:02-CV-320.,1:02-CV-320.
• Parties: WHITE RIVER AMUSEMENT PUB, INC., Plaintiff, v. TOWN OF HARTFORD, VERMONT; the Selectboard of Hartford, Vermont; Hunter Rieseberg, as the Town Manager of Hartford, Vermont; Todd Steadman, as Chairman, Selectboard of the Town of Hartford, Vermont; Leonard Berliner, Gayle Ottman, Ray Cerasoli, and Richard Ballou, as Members of the Selectboard, Town of Hartford, Vermont; and Joseph Estey, as Chief of Police of Hartford, Vermont, Defendants.
• Court: U.S. District Court — District of Vermont

412 F.Supp.2d 416

WHITE RIVER AMUSEMENT PUB, INC., Plaintiff, v. TOWN OF HARTFORD, VERMONT; the Selectboard of Hartford, Vermont; Hunter Rieseberg, as the Town Manager of Hartford, Vermont; Todd Steadman, as Chairman, Selectboard of the Town of Hartford, Vermont; Leonard Berliner, Gayle Ottman, Ray Cerasoli, and Richard Ballou, as Members of the Selectboard, Town of Hartford, Vermont; and Joseph Estey, as Chief of Police of Hartford, Vermont, Defendants.

No. 1:02-CV-320.

United States District Court, D. Vermont.

December 15, 2005.

COPYRIGHT MATERIAL OMITTED

David Seth Putter, Putter & Edson, LLP, Montpelier, VT, H. Glenn Alberich, Burns & Levinson LLP, Boston, MA, Joseph J. Machera, Law Offices of Joseph J. Machera, Revere, MA, for Plaintiff.

Kevin John Coyle, Simpsonville, SC, and William Francis Ellis, McNeil, Leddy & Sheahan, P.C., Burlington, VT, for Defendants.

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT

(Papers 42, 58, and 78)

MURTHA, District Judge.

The Town of Hartford, Vermont, the Selectboard of Hartford, Vermont, and Hunter Rieseberg, Todd Steadman, Leonard Berliner, Gayle Ottman, Ray Cerasoli, Richard Ballou, and Joseph Estey, individually ("Defendants"), request a grant of summary judgment on all claims brought by Plaintiff, White River Amusement Pub, Inc. ("Plaintiff"), under Fed.R.Civ.P. 56. Plaintiff, in turn, requests that the Court grant summary judgment on its claims in their entirety against Defendants. For the reasons stated herein, the Defendants' motion is DENIED in part and GRANTED in part. Plaintiffs motion is GRANTED in part and DENIED in part.

BACKGROUND

Plaintiff began operating the White River Amusement Pub ("the WRAP"), located in downtown White River Junction within the Town of Hartford, Vermont in September 2001. The WRAP serves food and beverages, and provides music and dance entertainment performed by women who are sometimes clothed, sometimes topless, and sometimes completely nude. Pl.'s Statement of Undisputed Facts (Paper 59) ¶ 3. At the time the WRAP commenced operation, the Town had no ordinance to prohibit the WRAP from providing nude dance entertainment.

In Spring 2002, at the request of the Selectboard, the Town's Attorney, Robert Manby, Jr., researched and prepared a draft of a public indecency ordinance. During the drafting process, Attorney Manby considered similar local ordinances adopted by other Vermont towns. Upon completing the draft and sending it to the Selectboard for review, Attorney Manby recommended that they adopt a resolution stating that they had considered the "secondary effects" of adult entertainment as part of the enactment process. Paper 59, Ex. R. Attorney Manby apparently based his recommendation on the fact that this Court, in upholding a similar ordinance in SBC Enterprises, Inc. and Shawn B. Cliche v. City of South Burlington, 892 F.Supp. 578 (D.Vt.1995), had taken into account whether the legislative body had considered the negative secondary effects of public nudity in passing the ordinance.

Despite this advice from Attorney Manby, the Selectboard did not adopt a statement describing any perceived negative secondary effects that the indecency ordinance was intended to address. During consideration and discussion of the ordinance at two meetings in April 2002, the Selectboard reviewed only the draft ordinance, two letters from Attorney Manby, and similar ordinances previously enacted in other Vermont towns. Paper 59 ¶ 12; Defs.' Objections to Pl.'s Statement of Undisputed Material Facts (Paper 65) ¶ 12. The Town Manager and some Selectboard members apparently also discussed potential negative secondary effects with constituents. Paper 65 ¶ 14.

After a brief public hearing on May 28, 2002 at which the Town Manager gave "an overview" of the ordinance, the Selectboard adopted the Town of Hartford Public Indecency Ordinance ("the Ordinance") by a unanimous vote. Paper 59 ¶¶ 7-9; Paper 65 ¶ 6. The Ordinance provides:

"Nudity" shall mean the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering (which fully opaque covering shall not be a facsimile designed to replicate or imitate the covered area), or the showing of the female breast with less than a fully opaque covering (which fully opaque covering shall not be a facsimile designed to replicate or imitate the covered area) of any portion of the nipple or the depiction of covered male genitals in a discernibly turgid state. A woman breastfeeding her child, irrespective of whether her breast is covered, shall not be considered in a state of nudity.

The Ordinance defines "Public Place" as "any location frequented by the public," including "business and commercial establishments, . . . night clubs, ... [and] cabarets." The Ordinance also states, in pertinent part:

a. No person shall knowingly or intentionally in a public place:

1. engage in sexual intercourse;

2. appear in a state of nudity;

3. fondle his/her genitals;

4. fondle the genitals of another person;

5. fondle his/her breasts; or

6. fondle the breasts of another person.

b. No person who owns, leases, or controls property shall knowingly allow any person to engage in the conduct described in subparagraph a. above at any time such property is open to the public.

Subsequent to enacting the Ordinance, the Town received studies documenting negative secondary effects of adult businesses, and also held a public hearing at which the Selectboard members articulated their rationale for enacting the Ordinance—to combat the negative secondary effects of public nudity. Paper 65 ¶ 14; Defs.' Reply Mem. of Law in Further Supp. of Joint Mot. for Summ. J. (Paper 61) at 6-7, Ex. E.

Plaintiff argues that the Ordinance violates its protections under the First, Fourteenth, and Fifth Amendments. In addition, Plaintiff claims Defendants' conduct violates 42 U.S.C. § 1983, as well as Chapter 1, Article 13 and Chapter 1, Article 7 of the Vermont Constitution. Finally, Plaintiff asserts that the individual Defendants cannot claim qualified, legislative, or statutory immunity.

Plaintiff cites for support the undisputed fact that the Town of Hartford did not personally conduct a study of potential negative secondary effects that nude entertainment might have upon the Hartford community, and that at no time during pre-enactment hearings and meetings did the Hartford Selectboard discuss possible negative secondary effects. Paper 59 ¶¶ 5-9, 12-16; Paper 65 ¶¶ 6-7.

Defendants, in turn, argue that the Ordinance meets constitutional standards under the First, Fourteenth, and Fifth Amendments, as well as under Chapter 1, Article 13 and Chapter 1, Article 7 of the Vermont Constitution. Finally, the individual Defendants assert that they are entitled to qualified, legislative, or statutory immunity.

DISCUSSION

Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." World Trade Ctr. Props., L.L.C. v. Hartford Fire Ins., 345 F.3d 154, 165 (2d Cir.2003). The burden is on the moving party to demonstrate there are no material facts genuinely in dispute. See Feingold v. New York, 366 F.3d 138, 148 (2d Cir.2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). When ruling on a motion for summary judgment, the court must view the facts and all inferences to be drawn therefrom in the light most favorable to the party opposing the motion. Johnson v. Wright, 412 F.3d 398, 403 (2d Cir.2005).

I. Mootness

As a preliminary matter, the Court must address the justiciability question. Defendants argue that the case is moot because Plaintiff no longer operates the WRAP due to a fire during the pendency of the current motions. Defs.' Feb. 2005 Mem. of Law in Supp. of Mot. for Summ. J. (Paper 79); Defs.' Feb. 2005 Local Rule 7.1(c) Statement of Undisputed Material Fact (Paper 80).

A case is moot "when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); Michele Catanzano v. Brian J. Wing and Barbara A. Debuono, 277 F.3d 99, 107 (2d Cir.2001) (both quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). The root concern is that, when the conduct at issue ceases such that "there is no reasonable expectation that the wrong will be repeated," then it becomes impossible for the court to grant "any effectual relief whatever' to [the] prevailing party." Pap's A.M., 529 U.S. at 287, 120 S.Ct. 1382 (quotations and citations omitted); see also Fox, 42 F.3d at 140.

Here, Plaintiff submitted an affidavit stating that it intends to "continue to provide the same dance entertainment ... when the WRAP reopens," and possibly at other locations as well. Affidavit of Daniel Garr (Paper 83) ¶¶ 10-11 (citing the WRAP's lease which is in effect until July 15, 2006). Plaintiff's claims, therefore, are not moot; there is a reasonable expectation that upon the WRAP's re-opening, the Town would enforce the Ordinance, subjecting Plaintiff to the same substantial harm. See Pap's A.M., 529 U.S. at 287, 120 S.Ct. 1382 (holding that "simply closing [the nude dancing establishment] is not sufficient to render the case moot, however. Pap's is still incorporated under Pennsylvania law, and it could again decide to operate a nude dancing establishment in Erie"); Clark v. City of Lakewood, 259 F.3d 996, 1012 (9th Cir.2001) (holding that plaintiff still had "a legally cognizable interest in the outcome" of its case challenging an adult cabaret ordinance where plaintiff's license to operate cabarets had expired but he intended to reopen his business); Calise...