D.H.L. Assoc. v. O'Gorman

• Decision Date: 16 September 1999
• Docket Number: No. 98-1688,98-1688
• Citation: 199 F.3d 50
• Parties: (1st Cir. 1999) D.H.L. ASSOCIATES, INC., Plaintiff, Appellant, v. JOHN O'GORMAN, ROBERT WALLACE, WARREN ALLGROVE, JR, AND EILEEN FARRELL, INDIVIDUALLY AND IN THEIR CAPACITY AS THE TYNGSBOROUGH BOARD OF SELECTMEN, AND AS THE LICENSING BOARD FOR THE TOWN OF TYNGSBOROUGH, AND THE TOWN OF TYNGSBOROUGH, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 50

199 F.3d 50 (1st Cir. 1999)

D.H.L. ASSOCIATES, INC., Plaintiff, Appellant, v. JOHN O'GORMAN, ROBERT WALLACE, WARREN ALLGROVE, JR, AND EILEEN FARRELL, INDIVIDUALLY AND IN THEIR CAPACITY AS THE TYNGSBOROUGH BOARD OF SELECTMEN, AND AS THE LICENSING BOARD FOR THE TOWN OF TYNGSBOROUGH, AND THE TOWN OF TYNGSBOROUGH, Defendants, Appellees.

No. 98-1688.

United States Court of Appeals, for the First Circuit.

Heard Sept. 16, 1999.

Decided December 17, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Robert E. Keeton, U.S. District Judge. [Copyrighted Material Omitted] Thomas Lesser with whom William C. Newman was on brief for appellant.

Richard Bowen with whom Jonathan M. Silverstein and Christopher J. Pollart were on brief for appellees.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lipez, Circuit Judge.

COFFIN, Senior Circuit Judge.

Plaintiff-appellant D.H.L. Associates, Inc., has sought annually since 1994 to persuade defendants-appellees, the town of Tyngsborough, Massachusetts, and its board of selectmen to license it to provide nude dancing at its restaurant, "Matthew's." D.H.L. has never been successful in this endeavor because Matthew's is not located within the area of Tyngsborough zoned to allow adult entertainment. In this case, D.H.L. challenges the constitutionality of Tyngsborough's zoning ordinance, alleging that even as revised since 1994, it does not meet the standards set forth in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and thus violates D.H.L.'s constitutionally protected freedom of speech. The district court held the ordinance to be constitutional, and from that judgment D.H.L. appeals. Finding no constitutional infirmity in Tyngsborough's zoning ordinance, we affirm.

I. Factual Background

Tyngsborough, a rural town of approximately 9500 inhabitants, is located about 40 miles from Boston near the Massachusetts/New Hampshire border. The Tyngsborough board of selectmen acts as the town's executive branch and is authorized to act as the licensing authority for alcoholic beverage and entertainment licenses. Town residents voting at meetings constitute the legislative branch of the town's government and as such are responsible for enacting the zoning ordinances at issue here.

The Town has altered its zoning ordinance multiple times in the past decade. In 1987, the Town, by a vote of the majority of residents at a town meeting, established the "B-4 zone," in which adult entertainment, as well as other commercial uses, was authorized. The B-4 zone, although existing in theory, did not actually contain any parcels of land and was, in fact, a "phantom zone." In 1992, D.H.L. applied for and was issued both an all-alcoholic beverage license and a live entertainment license for its restaurant called "Bogie's," later called "Matthew's," located in a general commercial use zone.

In January 1994, D.H.L. advertised that it would present nude dancing beginning in February. The following month, an open town meeting was held in Tyngsborough to discuss adult entertainment and on February 24, the Town notified D.H.L. that adult entertainment was not encompassed within its entertainment license. On March 7, D.H.L. applied to amend its entertainment license to include adult entertainment, under protest based on its belief that its entertainment license inherently authorized adult entertainment. On March 28, the board of selectmen held a hearing to consider D.H.L.'s request, but delayed a decision. The next evening, as a result of a petition signed by more than 650 registered voters, a special town meeting was held to consider adopting an ordinance that would prohibit establishments holding liquor licenses from offering any form of nude entertainment.

Although the Town did not adopt such an ordinance, town residents at the meeting unanimously adopted an amended version of the zoning ordinance to establish a B-4 zone of two lots of land. The selectmen subsequently denied D.H.L.'s application to amend its entertainment license to include live nude dancing on the basis that the restaurant was not located within the B-4 zone. Each year since then, the Town has reissued D.H.L.'s entertainment license but refused to extend it to include nude dancing. Aside from a two-day license suspension in March 1994, the Town has never attempted to enforce the limitations of D.H.L.'s license or otherwise sanction it for its violation of zoning and licensing regulations, despite the fact that D.H.L. has continued to offer nude dancing on a daily basis. The Town has, however, represented to D.H.L. and to this court that it is delaying enforcement only until this litigation concludes.

In 1994, D.H.L. filed a claim against the Town and its board of selectmen in state court, alleging, inter alia, that its state and federal constitutional rights had been violated and seeking declaratory and injunctive relief as well as damages. Defendants successfully sought removal of the case to federal court.

Prior to trial, at a town meeting in May 1996, the Town established an entirely different B-4 zone comprised of 10.4 acres and consisting of 5 of the 24 lots in Applewood Commercial Park subdivision. It was the constitutionality of this zone that the district court upheld following a bench trial in April 1998. The district court ruled in favor of Tyngsborough on D.H.L.'s federal constitutional claims, on the grounds that the constitutionality of the 1987 and 1994 zones were moot issues and the 1996 zone was constitutional, and remanded D.H.L.'s remaining state claims to state court for adjudication. D.H.L. appeals, arguing that the issue of whether its rights were violated under the prior ordinances was not moot and that even if the 1996 ordinance were the appropriate benchmark for consideration, it was not constitutional.

II. Preliminary Issues

A. Ripeness

Initially, we were concerned that D.H.L.'s claims were not ripe for review because D.H.L. has continued to provide adult entertainment despite its lack of a license without sanction. We have resolved this concern, however, because the Town has represented to the court, consistent with a selectman's testimony at trial, that it is delaying enforcement of the ordinance against D.H.L. only until this litigation concludes. Our jurisdiction as a federal court extends only to "cases" and "controversies," as authorized by Article III, Section 2, of the United States Constitution. This means that issues before us must reflect a live dispute between adverse parties.

The Supreme Court has explained that the determination of ripeness depends on "the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court consideration." Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).

In situations similar to the present one, prospective enforcement of an ordinance has been found sufficient to generate a live case. See, e.g., Sable Communications of California, Inc. v. Pacific Tel. & Tel. Co., 890 F.2d 184, 187 (9th Cir. 1989) ("A threat that emanates from a regulation, compulsory in nature, to which the plaintiff is currently subject, is real and immediate if the possibility of enforcement is more than hypothetical."). When a constitutional claim is at issue, a plaintiff need not "await the consummation of the threatened injury to obtain preventive relief." Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923).

In this case, it is clear that D.H.L. is subject to a real and immediate threat of enforcement of Tyngsborough's zoning ordinance and therefore its claims are ripe for our consideration. See Pustell v. Lynn Pub. Schs., 18 F.3d 50, 52 (1st Cir. 1994); Neiderhiser v. Borough of Berwick, 840 F.2d 213, 218 (3d Cir. 1988).

B. Mootness

Next, we address D.H.L.'s argument that the district court erred by holding that the constitutionality of the 1987 and 1994 zones were moot issues. D.H.L. contends that these issues are, in fact, dispositive of the case. We review the court's determination of mootness de novo. See Verhoeven v. Brunswick Sch. Comm., 1999 WL 721698, *4 (lst Cir., Sept. 21, 1999).

"Simply stated, a case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969). The Supreme Court has described mootness as "'the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue through its existence (mootness).'" United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Henry P. Monaghan, "Constitutional Adjudication: The Who and When," 82 Yale L.J. 1353, 1384 (1973)).

We conclude that the validity of the 1987 and 1994 ordinances are moot issues because even if we were to find the provisions unconstitutional, D.H.L. would not be entitled to any relief. First, D.H.L. cannot allege damages from the application of the 1987 or the 1994 ordinance because neither was ever enforced against D.H.L. Although D.H.L. was denied a permit under the authority of the 1994 ordinance, it continued to engage in the prohibited conduct on a daily basis without repercussion. Although a claim for damages from a no longer effective ordinance might in other circumstances save the issue of the ordinance's lawfulness from a determination of mootness, D.H.L. can make no such claim here. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 478 n.1 (1989) (plaintiff's claims not moot even though challenged ordinance repealed because town refused to grant contracts to plaintiff while ordinance was in effect).¹

Second, we are without power to grant injunctive and declaratory relief because the 1987 and 1994 ordinances no longer exist. In Diffenderfer v. Central Baptist Church, Inc., 404 U.S. 412 (1972), the Supreme Court emphasized that it had to "review the judgment of the...