City of Revere v. Aucella

• Citation: 369 Mass. 138,338 N.E.2d 816
• Parties: CITY OF REVERE v. Alfonso AUCELLA et al. 1 (and a companion case 2 ).
• Decision Date: 03 December 1975
• Court: United States State Supreme Judicial Court of Massachusetts

Page 816

338 N.E.2d 816

369 Mass. 138

CITY OF REVERE

v. Alfonso AUCELLA et al. ¹ (and a companion

case ²).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 18, 1975.

Decided Dec. 3, 1975.

Vincent A. Canavan, City Sol. (William M. Appeal, Sp. Asst. City Sol., with him) for City of Revere.

Morris M. Goldings, Boston, for Alphonso Aucella and another.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

BRAUCHER, Justice.

These cases test the constitutionality of G.L. c. 272, § 16, prohibiting 'open and gross lewdness and lascivious behavior,' as applied to a nude 'Go-Go' dancer in a bar. They also test the power of a city, by ordinance, to regulate such conduct. We hold that the statute is unconstitutional. P.B.I.C., Inc. v. Byrne, 313 F.Supp. 757 (D.Mass.1970), vacated to consider mootness, 401 U.S. 987, 91 S.Ct. 1222, 28 L.Ed.2d 526 (1971). The ordinance, however, is within the powers granted to the city by the Home Rule Amendment, Mass.Const. amend. art. 89, § 6, and the Home Rule Procedures Act, G.L. c. 43B, § 13, and is not on its face inconsistent with our Constitution or laws. We decide no question as to the validity or application of the ordinance in any particular circumstances. Compare BOSTON LICENSING BD. V. ALCOHOLIC BEVERAGES CONTROL COMM'N, --- MASS. --- , 328 N.E.2D 848 (1975)^A, with NORCISA V. SELECTMEN OF PROVINCETOWN, --- MASS. --- , 330 N.E.2D 830 (1975)^B.

1. The cases. The city of Revere sued Charger Investments, Inc. (Charger), doing business as 'The Squire,' and its manager in the Superior Court to enjoin them from violating Revere Revised Ordinances c. 13, art. 3 (1972) (the ordinance). ³ A preliminary injunction was denied. Later Charger, a successor manager and one of its entertainers sued the city and its chief of police in the Supreme Judicial Court for the county of Suffolk to enjoin them from enforcing the ordinance and G.L c. 272, § 16. A single justice of this court issued a temporary restraining order and transferred the action to the Superior Court. The two actions were consolidated, and were submitted on statements of agreed facts. The judge made findings, rulings and an order for judgment, and judgments were entered dismissing the first action with prejudice, declaring the statute unconstitutional and the ordinance invalid, and enjoining their enforcement. The city and the chief of police appealed.

2. The facts. We summarize the agreed facts. Charger has an alcoholic beverage license under G.L. c. 138 and is licensed under G.L. c. 140, § 183A, to provide entertainment in its eating and drinking establishment, and since 1973 has conducted public shows and sold and served alcoholic beverages to be drunk on the licensed premises. The ordinance in question was passed by the city council and signed by the mayor in March, 1974, and was published in a newspaper in the city on April 3, 1974.

The conduct in issue consists of individual female dancers performing to the accompaniment of rock and roll music, both from phonograph records and from a live band. Each of the dancers, including one of the plaintiffs in Charger's action, removes her clothing while dancing, with the result that she is completely unclothed so as to expose to the view of the customer-consumer all or part of the areas of her body referred to in the ordinance. At no time do the entertainers perform together in proximity with each other. The patrons are charged no admission or cover charge, and are free to leave at any time during any performance without charge other than for the food or drink consumed. A sign located outside the premises bears the word 'Entertainers' and the silhouette of a dancing girl.

Beginning in July, 1974, the city brought multiple prosecutions against Charger and its manager and assistant managers for violations of the ordinance, which resulted in convictions and appeals to the Superior Court. Additional prosecutions of its entertainers for violations of G.L. c. 272, § 16, were continued to dates in October, 1974. Further prosecution was enjoined on September 17, 1974.

3. Lewdness. The judge ordered a declaration that 'the wording of G.L. c. 272, § 16, reading 'who is guilty of open and gross lewdness and lascivious behavior' is unconstitutional,' and enjoined the arrest and prosecution of Charger and its co-plaintiffs and employees for violation of that statute. With a minor modification we approve that part of the judgment on the ground stated by the judge, that the part of the statute applicable to this case is 'too vague and overbroad for the purpose of imposing criminal liability.' Cf. Commonwealth v. Horton, --- Mass. ---, --- ^c, 310 N.E.2d 316, (1974), holding unconstitutional G.L. c. 272, § 28A, as to 'obscene, indecent or impure' magazines; Commonwealth v. Capri Enterprises, Inc., --- Mass. ---, --- ^d, 310 N.E.2d 326 (1974), holding unconstitutional G.L. c. 272, § 32, as to a 'lewd, obscene, indecent, immoral and impure' motion picture film; Commonwealth v. A Juvenile, --- Mass. ---, --- ^e, 334 N.E.2d 617, 618 (1975), holding unconstitutional G.L. c. 272, § 53, as to 'idle and disorderly persons,' when applied to speech or expressive conduct. Section 16 was held unconstitutional as applied to a theatrical production in P.B.I.C., Inc. v. Byrne, 313 F.Supp. 757 (D.Mass.1970), vacated to consider mootness, 401 U.S. 987, 91 S.Ct. 1222, 28 L.Ed.2d 526 (1971). Like the judge, we do not pass on the application of the statute to the imposition of lewdness or nudity on an unsuspecting or unwilling person. Cf. Commonwealth v. Dickinson, 348 Mass. 767, 202 N.E.2d 240 (1964); Commonwealth v. Cummings, 273 Mass. 229, 231, 173 N.E. 506 (1930). We sanctioned an injunction against prosecution of entertainers under the same statute in P.B.I.C., Inc. v. District Attorney of Suffolk County, 357 Mass. 770, 258 N.E.2d 82 (1970). Cf. Doran v. Salem Inn, Inc., --- U.S. ---, ---, 95 S.Ct. 2561, 2566, 45 L.Ed.2d 648 (1975). Multiple prosecutions make it clear that Charger could not eliminate the threat to its constitutional rights by defending against a single criminal prosecution. Cf. Norcisa v. Selectmen of Provincetown, --- Mass. ---, --- ^f, 330 N.E.2d 830 (1975); Kenyon v. Chicopee, 320 Mass. 528, 535, 70 N.E.2d 241 (1946); Byrne v. Karalexis, 401 U.S. 216, 220, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971).

4. Validity of the ordinance. The judge found and ruled that the enactment of the ordinance was procedurally proper, but ordered that it be declared 'invalid and null and void' on two grounds. First, the power to promulgate such regulations has been granted to the Alcoholic Beverages Control Commission; the field has thus been preempted, and cities and towns may not interfere. Second, the ordinance prescribes new terms and conditions on which licenses shall be revoked or denied; if any local agency has the power to make such regulations, it is the Revere licensing board and not the Revere city council.

We rejected the first ground in Boston Licensing Bd. v. Alcoholic Beverages Control Comm'n, --- Mass. ---, --- - --- ^g, 328 N.E.2d 848 (1975). The second ground, however, requires an examination of the Home Rule Amendment, art. 89 of the Amendments to the Constitution of Massachusetts, and the respective statutory powers of the city council and the city licensing board. We begin with the Constitution, which authorizes the ordinance unless it exercises a power or function which is 'inconsistent with the constitution or laws enacted by the general court' or is 'denied, either expressly or by clear implication, to the city or town by its charter.' ⁴ The same broad authority, with the quoted limitations, also appears in G.L. c. 43B, § 13 (as appearing in St.1966, c. 734, § 1). Cf. G.L. c. 40, §§ 1, 21. Our attention has not been directed to any relevant provision of the city charter, so the question is whether the ordinance is 'inconsistent with the constitution or laws.' See Bloom v. Worcester, 363 Mass. 136, 155--157, 293 N.E.2d 268 (1973).

Apart from the laws pertaining to the Alcoholic Beverages Control Commission, Charger's argument as to inconsistent laws rests on G.L. c. 138, §§ 1, 12, 23, and G.L. c. 140, §§ 1, 183A, authorizing local licensing boards to prescribe 'reasonable requirements' and 'terms and conditions' of the licenses in question. That authority, Charger argues, is 'inconsistent' with a grant of the same authority to the mayor and city council, citing Mosey Cafe, Inc. v. Licensing Bd. of Boston, 338 Mass. 199, 154 N.E.2d 585 (1958), and Mosey Cafe, Inc. v. Mayor of Boston, 338 Mass. 207, 154 N.E.2d 591 (1958). We are inclined to agree that the local licensing board derives its authority directly from the Commonwealth and cannot be controlled in its exercise by local ordinances. See McDonald v. Superior Court, 299 Mass. 321, 324, 13 N.E.2d 16 (1938).

That does not end the matter, however. In Bloom v. Worcester, 363 Mass. 136, 156, 293 N.E.2d 268, 281 (1973), we said: 'If the State legislative purpose can be achieved in the face of a local ordinance or by-law on the same subject, the local ordinance or by-law is not inconsistent with the State legislation, unless the Legislature has expressly forbidden the adoption of local ordinances and by-laws on that subject.' We there quoted a statement that in the absence of clear statutory limitation a municipality may act 'unless the state legislation so broadly encompasses the field as to indicate a clear intention to preempt the matter as an area of complete state concern . . ..' Id. at 156, n. 15, 293 N.E.2d at 281, quoting from E. A. Gere & M. P. Curran, Home Rule (Bureau of Pub. Affairs, Boston College and Bureau of Gov't Research, Univ. of Mass.) 36. See Lancaster v. Municipal Court for the Beverly Hills Judicial Dist. of Los Angeles County, 6 Cal.3d 805, 808, 100 Cal.Rptr. 609, 494 P.2d 681 (1972).

The State legislation in issue here is not so broadly encompassing. Local...