481 F.3d 163 (2nd Cir. 2007), 06-0233, White River Amusement Pub, Inc. v. Town of Hartford

Docket Nº:Docket No. 06-0233-cv.
Citation:481 F.3d 163
Party Name:WHITE RIVER AMUSEMENT PUB, INC., Plaintiff-Appellee, v. TOWN OF HARTFORD, 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, as member of the Selectboard, Town of Hartford, Vermont, Gayle Ottman, as member of th
Case Date:March 28, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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481 F.3d 163 (2nd Cir. 2007)



TOWN OF HARTFORD, 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, as member of the Selectboard, Town of Hartford, Vermont, Gayle Ottman, as member of the Selectboard, Town of Hartford, Vermont, Ray Cerasoli, as member of the Selectboard, Town of Hartford, Vermont, Richard Ballou, as member of the Selectboard, Town of Hartford, Vermont, and Joseph Estey, as Chief of Police of Hartford, Vermont, Defendants-Appellants.

Docket No. 06-0233-cv.

United States Court of Appeals, Second Circuit.

March 28, 2007

Argued: Sept. 20, 2006.

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[Copyrighted Material Omitted]

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Kevin J. Coyle (William F. Ellis, on the brief), McNeil, Leddy & Sheahan, Burlington, VT, for Defendants-Appellants.

H. Glenn Alberich, Burns & Levinson LLP, Boston, MA (David Putter, Montpelier, VT, on the brief), for Plaintiff-Appellee.

Before CALABRESI, POOLER, and B.D. PARKER, Circuit Judges.

POOLER, Circuit Judge.

Defendants-appellants Town of Hartford, Vermont (the "Town"), and Town officials Hunter Rieseberg, Todd Steadman, Leonard Berliner, Gayle Ottman, Ray Cerasoli, Richard Ballou, and Joseph Estey, appeal from the December 15, 2005, judgment of the District Court for the District of Vermont (J. Garvan Murtha, J.), granting declaratory and injunctive relief to plaintiff-appellee White River Amusement Pub, Inc. (the "Corporation"). In a ruling on cross-motions for summary judgment, the district court also disposed of the Corporation's remaining claims, including all claims for damages. See White River Amusement Pub, Inc. v. Town of Hartford, 412 F.Supp.2d 416 (D.Vt.2005). Plaintiff has not cross-appealed. For the reasons set forth below, the judgment of the district court is affirmed.


In September 2001, the Corporation opened the White River Amusement Pub (the "WRAP"), an adult entertainment business, in downtown White River Junction within the Town of Hartford. The WRAP offered nude and semi-nude female dancing, as well as food and beverages. At the time the WRAP commenced operations, the Town had no ordinance prohibiting public nudity or nude dancing.

In the spring of 2002, at the request of the Town Selectboard, the Town's attorney, Robert Manby, drafted a proposed public indecency ordinance (the "Ordinance"). Manby also noted, in a letter to the Selectboard, that in SBC Enterprises, Inc. v. City of South Burlington, 892 F.Supp. 578 (D.Vt.1995), a district court had upheld a similar ordinance enacted by the city of South Burlington, based on the fact that the South Burlington City Council had passed a resolution indicating that it had considered the "secondary effects" of nude dancing when enacting the ordinance. Manby therefore advised the Selectboard to adopt a similar resolution when enacting the Ordinance.

The Selectboard considered the Ordinance during two meetings in April and May 2002. On April 30, 2002, the Selectboard conducted a first reading of the proposed Ordinance. The Town Manager, Hunter Rieseberg, gave an overview of the Ordinance, summarizing its provisions. The Selectboard then voted unanimously to approve the Ordinance and forward it to a public hearing. The Ordinance was next considered on May 28, 2002. Rieseberg and Todd Steadman, Chairman of the Selectboard, introduced the Ordinance. Steadman highlighted the definitions of certain terms in the Ordinance and noted that this type of ordinance had been tested in the courts. Members of the public asked a few questions, and after ten minutes, the public hearing was adjourned. Without any further discussion of the merits of the Ordinance, the Board voted in favor of its adoption.

The Ordinance prohibits an individual from doing the following in a public place: engaging in sexual intercourse; appearing

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in a state of nudity; fondling his or her genitals; fondling the genitals of another person; fondling his or her breasts; or fondling the breasts of another person. "Nudity" is defined as "the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering ..., or the showing of the female breast with less than a fully opaque covering ... of any portion of the nipple or the depiction of covered male genitals in a discernibly turgid state." A woman breastfeeding her child is specifically excepted from this definition of nudity. A "public place" is defined as "any location frequented by the public," including "business and commercial establishments, ... night clubs, ... [and] cabarets."

In enacting the Ordinance, the Selectboard did not follow Manby's recommendation to adopt a resolution discussing secondary effects. In addition, the Selectboard did not conduct any independent analysis of the actual or potential secondary effects of public nudity in the local area. Town representatives or members of the Selectboard did, however, review at most three sample public indecency ordinances from other Vermont municipalities. While the Ordinance was under consideration, one or two members of the Selectboard also discussed with their constituents the potential negative secondary effects associated with adult businesses. Steadman has since explained that although he was not aware of any adverse secondary effects actually caused by the WRAP, he put the Ordinance on the agenda because of his desire to protect economic development opportunities within the Town, and because he was concerned about the potential for the creation of negative secondary effects in areas where public nudity was occurring.

After the Selectboard enacted the Ordinance, the Town's Department of Planning and Development Services obtained studies analyzing the negative secondary effects of adult businesses. These materials were discussed during a special town meeting on September 9, 2002, at which certain Town officials also articulated their rationale for enacting the Ordinance, i.e., to combat the negative secondary effects of public nudity. The following day, the Town electorate voted against the following ballot question: "whether the voters of the Town of Hartford disapprove the 'Public Indecency Ordinance' adopted by the Selectboard on May 28, 2002." The Ordinance therefore remained in effect.

On November 22, 2002, the Corporation brought this action, alleging that the Ordinance violated its federal and state constitutional rights. The parties cross-moved for summary judgment, but while these motions were pending, on February 13, 2005, a fire severely damaged the building in which the WRAP was housed. Shortly thereafter, defendants filed an additional motion for summary judgment, arguing that the Corporation's claims had been mooted by the destruction of the WRAP's premises. In response to this motion, the Corporation's President, Daniel Garr, submitted an affidavit explaining the Corporation's "plan and intent" to continue providing adult entertainment in the Town. Garr explained that the Corporation had a lease on the WRAP's premises that ran through July 15, 2006, with an additional five year option and a first option to purchase the premises. He noted that the Corporation did not intend to terminate its lease, and that it was also assessing other locations in Hartford with a view to reopening temporarily at an alternate site.

In a December 15, 2005, opinion, the district court concluded that the Corporation's claims were not moot. The court found that there was a "reasonable expectation that upon the WRAP's re-opening, the Town would enforce the Ordinance,

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subjecting [the Corporation] to the same substantial harm." White River, 412 F.Supp.2d at 421. With respect to the First Amendment freedom of expression claims, the court applied the O'Brien standard for expressive conduct, see United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct....

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