City of Bangor v. Diva's, Inc.

• Court: Maine Supreme Court
• Writing for the Court: SAUFLEY, C.J.
• Citation: City of Bangor v. Diva's, Inc., 830 A.2d 898, 2003 ME 51 (Me. 2003)
• Decision Date: 15 April 2003
• Parties: CITY OF BANGOR v. DIVA'S, INC.

830 A.2d 898

2003 ME 51

CITY OF BANGOR v. DIVA'S, INC.

Supreme Judicial Court of Maine.

Submitted on Briefs: June 27, 2002.

Decided: April 15, 2003.

John K. Hamer, Esq., Bangor, for plaintiff.

On the date of publication of this opinion, Diva's, Inc. was not represented counsel, for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

SAUFLEY, C.J.

[¶ 1] Diva's, Inc., appeals from the judgment of the District Court (Bangor, Russell, J.) in which the court concluded that Diva's had violated two provisions of the Bangor Land Use Code related to nude entertainment and therefore ordered Diva's to pay a fine of $2000 and enjoined Diva's from presenting any nude entertainment in violation of the Code. Diva's contends that the ordinances are unconstitutional. We affirm the judgment of the District Court.

I. BACKGROUND

[¶ 2] Diva's, Inc., whose capital stock is owned by Diane Cormier-Youngs, presents nude entertainment in Bangor. In recent years, the Bangor City Council has adopted ordinances aimed at regulating nude entertainment. Pursuant to section 228 and amendments of the Code, commercial establishments must obtain a certificate of occupancy from the City before presenting nude entertainment. Section 228 places limits on the geographical location of commercial establishments presenting nude entertainment by prohibiting such activity near schools, residential districts, and places of worship.

[¶ 3] In December 1999, by agreement with the City, Diva's was granted a certificate of occupancy effective until June 20, 2001. After that date, the City declined to renew Diva's certificate of occupancy for nude entertainment because of its close proximity to residences and a church. Upon the expiration of its certificate of occupancy, Diva's sought, and was granted, a liquor license from the City of Bangor and issued by the State of Maine, which permitted it to sell alcohol for consumption on the premises. In addition, Diva's was granted a special amusement permit for liquor licensees from the City, pursuant to section 61 of the Code. The special amusement permit allowed Diva's to provide music, dancing, and entertainment as a liquor licensee, subject to certain conditions, including a prohibition on presenting nude entertainment.¹ [¶ 4] Notwithstanding the expiration of its certificate of occupancy and its new status as a liquor licensee and holder of a special amusement permit, Diva's continued to present nude entertainment. On June 22, 2001, Diva's invited the press and certain city officials to witness "an act of civil disobedience." A detective from the Bangor Police Department attended the event at Diva's and observed dancers dressed in only G-strings and pasties, exposing their buttocks and all but the areola of their breasts. On June 26, 2001, the detective returned to Diva's and observed dancers wearing only G-strings. He testified that he returned to Diva's eight more times, and that on each occasion the dancers were wearing G-strings and, at times, pasties.

[¶ 5] On June 29, 2001, the City filed a land use citation and complaint pursuant to M.R. Civ. P. 80K, alleging that Diva's had violated sections 228-14 and 61-17(C)(1)(c) of the Code.² Specifically, the City alleged that Diva's presented nude entertainment without a requisite certificate of occupancy and that the nude entertainment presented by Diva's violated the conditions of its special amusement permit for liquor licensees. Diva's filed a motion to dismiss the complaint, arguing that section 61-17 was unconstitutional. The District Court denied the motion and a trial was held on October 5, 2001.

[¶ 6] The District Court found that Diva's provided nude entertainment on June 22 and June 26, 2001, without the requisite certificate of occupancy and as a liquor licensee holding a special amusement permit, which prohibited nude dancing. Specifically, the District Court concluded that this conduct violated section 228 (prohibiting nude entertainment without a certificate of occupancy) and section 61 (prohibiting liquor licensees holding a special amusement permit from providing nude entertainment) of the Code. The District Court fined Diva's five hundred dollars for each violation of each ordinance and enjoined it from presenting any further nude entertainment in violation of section 61. This appeal followed.

II. DISCUSSION

A. Challenges to the Factual Findings

[¶ 7] Pursuant to M.R. Civ. P. 80K, a municipality has the burden of proving an alleged land use violation by a preponderance of the evidence. M.R. Civ. P. 80K(i). When an appellant challenges the sufficiency of the evidence to support a finding in a civil case in which the appellant did not bear the burden of proof, we review the record in the light most favorable to the trial court's judgment to determine if the findings are supported by competent evidence. See Acadia Ins. Co. v. Keiser Indus., Inc., 2002 ME 57, ¶ 14, 793 A.2d 495, 498. "Where there is competent evidence in the record to support the court's findings, we will not disturb the factual findings of the court." Sorey v. Sorey, 1998 ME 217, ¶ 14, 718 A.2d 568, 571.

[¶ 8] Diva's argues that the City failed to meet its burden of proving land use violations, specifically, the presentation of nude entertainment, by a preponderance of the evidence. In particular, Diva's asserts that no evidence exists to establish a violation of Bangor's ordinances because the officer who testified at trial was unable to recount the specific names or descriptions of the dancers he observed. At trial, however, the officer testified that he witnessed female dancers at Diva's with exposed buttocks and breasts or portions of the breasts at or below the areola, on ten occasions, including June 22 and June 26, 2001. In addition, Diva's owner, Diane Cormier-Youngs, admitted at trial that dancers at Diva's wear only G-string thongs and pasties when they perform.

[¶ 9] Competent evidence supports the court's finding that the activities that occurred at Diva's on June 22 and June 26, 2001, amounted to "nude entertainment" in violation of Bangor's ordinances. Given Diva's invitation to the public to observe "an act of civil disobedience," the owner's admission that the dancers exposed their buttocks and breasts, and the observation of that exposure by the officer, Diva's challenge of the trial court's findings fails. We find no clear error in the trial court's factual findings. See Palanza v. Lufkin, 2002 ME 143, ¶ 15, 804 A.2d 1141, 1146.

B. Challenges to the Legal Conclusions

[¶ 10] Diva's asserts that the ordinances regulating nude entertainment constitute a prior restraint on speech and prohibit the free expression of protected speech without providing any reasonable alternative means of expression, in violation of the Maine and United States Constitutions.³ The District Court disagreed with this assertion. We review the decision of the District Court for errors of fact or law. As in this case, where the facts are established, the application of constitutional concepts to those facts is a question of law that is subject to de novo review on appeal. See Bangs v. Town of Wells, 2000 ME 186, ¶ 9, 760 A.2d 632, 635.

[¶ 11] With respect to the protection of freedom of speech, the "Maine Constitution is no less restrictive than the Federal Constitution," State v. Janisczak, 579 A.2d 736, 740 (Me.1990), and in the context of the facts presented here, we find no occasion to interpret article I, section 4 in such a way as to create a result different from the result that would be reached in reliance on the First Amendment of the United States Constitution.⁴

[¶ 12] Nude dancing has been viewed by the United States Supreme Court as expressive conduct within the outer ambit of the First Amendment's protection, though only marginally so. City of Erie v. Pap's A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (plurality); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality). Because the ordinances at issue do not completely ban nude dancing, the appropriate inquiry in this case is whether the Bangor ordinances are content-neutral, designed to serve a substantial governmental interest, and allow for reasonable alternative avenues of communication. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434-35, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (plurality) (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)).

C. The Bangor Ordinances

[¶ 13] Section 228-14 of the Bangor Code prohibits a commercial establishment from offering nude entertainment on its premises without first obtaining a certificate of occupancy.⁵ BANGOR CODE § 228-14. This section also creates restrictions on the location of commercial establishments offering nude entertainment. It provides: "No certificate of occupancy shall be granted for a commercial establishment offering nude entertainment if the premises concerned are located within 500 feet of any other such establishment for which a certificate of occupancy, previously issued, remains in force; any establishment licensed to sell alcohol ... under M.R.S.A. 28-A § 601 et seq.; a church, chapel, parish house or other place of worship; or a public library, juvenile shelter or orphanage...." BANGOR CODE § 228-14(D)(1)(a). In addition, such establishments must not be located within 500 feet of the nearest residential zoning district boundary or the nearest property line of any "public or private school, school dormitory, or school ground, public playground" or city park. BANGOR CODE § 228-14(D)(1)(b)-(c).

[¶ 14] Section 61 prohibits those who choose to sell liquor from also presenting nude entertainment. BANGOR CODE § 61-17. In relevant part, section 61-17 provides: "No licensee shall permit entertainment on the licensed premises ... when the entertainment involves: ... (c)...