Diva's, Inc. v. City of Bangor

• Decision Date: 20 December 2001
• Docket Number: No. 01-CV-108-BS.,01-CV-108-BS.
• Citation: 176 F.Supp.2d 30
• Parties: DIVA'S, INC., et al., Plaintiffs, v. CITY OF BANGOR, et al., Defendants.
• Court: U.S. District Court — District of Maine

Page 30

176 F.Supp.2d 30

DIVA'S, INC., et al., Plaintiffs, v. CITY OF BANGOR, et al., Defendants.

No. 01-CV-108-BS.

United States District Court, D. Maine.

December 20, 2001.

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Charles G. Williams, III, Williams Law Firm, P.C., Lewiston, ME, for Divas Inc dba Divas, Diane Cormier-Youngs, plaintiffs.

Mark V Franco, Thompson & Bowie, Portland, ME, Norman S. Heitmann, III, City of Bangor, Legal Department, Bangor, ME, for City of Bangor, defendant.

Mark V. Franco, Lisa Fitzgibbon Bendetson, Thompson & Bowie, Portland, ME, for Michael R. Crowley, Nichi Farnham, Frank Farrington, Gerry GM Palmer, John Rohman, Judith Vardamis, defendants.

ORDER

SINGAL, District Judge.

This is the latest chapter in the tortured history of litigation between Diva's, Inc., Diva's owner Dianne Cormier-Youngs, and the City of Bangor, Maine. Presently before the Court are Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint pursuant to Rule 12(b)(6) (Docket # 30), Plaintiffs' Motion for Partial Summary Judgment (Docket # 31) and Plaintiffs' Motion to Restore Plaintiffs' Motion for Summary Judgment (Docket # 32). For the following reasons, the Court GRANTS Defendants' Motion IN PART and STAYS the remaining proceedings. The Court DENIES Plaintiffs' Motions.

I. STANDARD OF REVIEW

In ruling on a motion pursuant to Rule 12(b)(6), the Court accepts a plaintiff's well-pleaded factual averments as true and draws all reasonable inferences in the plaintiff's favor. See, e.g., Stein v. Royal Bank of Can., 239 F.3d 389, 392 (1st Cir.2001). As part of a plaintiff's complaint, the Court may also consider any documents the authenticity of which the parties do not dispute, documents central to the plaintiff's claim, and documents sufficiently referred to in the complaint. See Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001) (citing Watterson v. Page, 987 F.2d 1, 3-4 (1st Cir.1993)). The Court does not, however, accept a plaintiff's "unsupported conclusions or interpretations of law." Stein, 239 F.3d at 392. It will dismiss a complaint only if it appears that the plaintiff cannot recover on any viable theory. See, e.g., Blackstone Realty LLC v. F.D.I.C., 244 F.3d 193, 197 (1st Cir. 2001).

Applying these standards, the Court draws the following facts from Plaintiffs' Complaint, addenda to Defendants' Motion, and portions of the record from earlier stages of this case to which the Complaint sufficiently refers. The Court also takes judicial notice of an action currently pending in Maine District Court involving Plaintiff Diva's, Inc., and Defendant City of Bangor. See E.I. Du Pont de Nemours & Co. v. Cullen, 791 F.2d 5, 7 (1st Cir. 1986) (federal court may take notice of proceedings in other courts if they have direct relation to matters at issue); Metayer v. PFL Life Ins. Co., No. CIV. 98-177-P-C, 1999 WL 33117063 at *1 (D.Me. July 15, 1999) (taking judicial notice of case filed in state court, citing DuPont).

II. BACKGROUND

In various combinations, Plaintiffs and Defendants have been warring since at least 1998 over the operation of Diva's, a nude entertainment establishment in downtown Bangor, Maine. Plaintiff Diva's, Inc. ("Diva's"), is a Maine corporation. Plaintiff Diane Cormier-Youngs is the owner, president and proprietor of Diva's. Defendants are the City of Bangor (the "City"), the mayor of the City, and some (but not all) of the members of the Bangor City Council.¹

The Bangor Code (the "Code") regulates the location and operation of adult entertainment establishments in Bangor. Two provisions are particularly relevant to this case: section 228 and section 61-17. Section 228 requires operators of nude entertainment establishments to obtain a "certificate of occupancy" from the City. The City will grant the certificate only if the establishment is not located within five hundred feet of a school, church, public park or residential zoning district, and does not sell alcohol.² Similarly (and somewhat redundantly), Section 61-17 prohibits businesses that possess liquor licenses from featuring nude dancing.³

Diva's opened as a topless female dancing establishment and juice bar in 1996.⁴ In 1999, the City amended section 228 of the Code to add, among other things, the provision barring nude entertainment establishments from locating within five hundred feet of churches. Because Diva's neighbors a church, the amended section 228 impacted squarely upon its ability to obtain or renew a certificate of occupancy. The club challenged the ordinance in state court, lost, and appealed. See Diva's, Inc. v. City of Bangor, Docket No. AP-99-32 (Penobscot Sup.Ct.).

Before the appeal was decided, the parties entered into a written settlement agreement. The agreement contained a Faustian bargain. By agreeing to withdraw the appeal and never to challenge the Code's constitutionality or validity, Diva's obtained the right to continue operating as a nude dancing establishment (in violation of the Code) — but only until May 31, 2001. After that date, Diva's agreed to cease "commercial display of nudity" for good at its current location.

As the May 31, 2001 deadline approached, Diva's made efforts to revamp its operations. Anticipating a new format, it applied for a "special amusement permit" from the City to allow the club to feature dancers who would be clad in bikinis (in lieu of appearing topless). It also applied for a liquor license. On May 30, 2001, the City Council granted the license but denied the permit, effectively foreclosing Diva's ability to feature exotic dancing of any variety. In denying the permit, the City explained that despite Cormier-Youngs's assurances to the contrary, it was concerned that the "bikini lounge" would soon revert to a nude dancing establishment in violation of sections 61-17 and 228, and that granting the permit would negatively affect public health, safety and welfare.

In response, Diva's and Cormier-Youngs filed a federal lawsuit against the City, alleging that the City Council's decision had violated their constitutional rights in violation of 42 U.S.C. § 1983. In particular, they alleged that the Council's denial of a permit limited their First Amendment right to free expression, and their Fourteenth Amendment rights to due process and equal protection of the laws. In conjunction with the filing, Diva's and Cormier-Youngs filed two motions for a temporary restraining order ("TRO"), which the Court denied, citing the movants' inability to demonstrate a likelihood of success on the merits of the claims. (See Order Denying Petition for Temporary Restraining Order (Docket # 5)).

Three weeks later, while a third motion for a TRO was pending before the Court, the Bangor Board of Appeals reversed the City Council's decision and granted the permit for the "bikini lounge," appearing to put an end to the controversy, if not the litigation. The Court accordingly denied the renewed petition for TRO as moot. (See Order Finding Moot Plaintiffs' Renewed Petition for Temporary Restraining Order (Docket # 12)). The period of détente was short-lived, however. Before long, Diva's began featuring topless dancing anew.

The City immediately filed a civil enforcement action against Diva's in Maine District Court for violating Code sections 61-17 and 228. See City of Bangor v. Diva's, Inc., No. BAN 01 CV 311 (Me. Dist. Ct. June 29, 2001). Diva's moved to dismiss, arguing that the Code sections violated the federal constitution. On August 29, 2001, the state court denied Diva's motion, explicitly finding that section 228 of the Code passed constitutional muster. The state court did not rule on the constitutionality of section 61-17. See City of Bangor v. Diva's, Inc., No. BAN 01 CV 311 (Me.Dist.Ct. Aug. 29, 2001) (decision and order).

In the interim, Diva's and Cormier-Youngs had filed yet a fourth petition for a TRO in this Court. The Court denied the request, explaining that principles of comity counseled against interfering with matters then pending in state court. (See Order Denying Plaintiffs' Renewed Motion for Temporary Restraining Order (Docket # 19)). Several weeks later, Diva's and Cormier-Youngs amended their federal Complaint to include the individual Defendants, all of whom had voted against issuing the special amusement permit. The amendment also added (1) a facial challenge to the constitutionality of section 61-17, (Count One),⁵ (2) a state law breach of contract claim alleging that the City had violated the 1999 agreement by denying the permit, (Count Two), (3) a claim alleging tortious interference with Diva's and Cormier-Youngs's ability to contract with "talent, support staff and vendors," (Count Three), (4) an allegation that the individual Defendants had conspired to violate Diva's and Cormier-Youngs's constitutional rights in violation of 42 U.S.C. § 1985, (Count Four), and finally (5) an intentional infliction of emotional distress claim on behalf of Cormier-Youngs individually, (Count Five).⁶ They requested monetary, declarative, punitive and injunctive relief.

It is the legal sufficiency of this Amended Complaint that is now before the Court. On September 7, 2001, the City and individual Defendants filed a Motion to Dismiss that detailed a variety of constitutional, statutory and procedural defects in the Amended Complaint. Diva's and Cormier-Youngs's reply filings addressed only some of the objections, but sought further relief from the Court by requesting partial summary judgment as to an issue of fact not yet part of the record. Diva's and Cormier-Youngs also moved to restore a motion for summary judgment that they had already filed and withdrawn in conjunction with an earlier version of the Complaint.

Meanwhile, back in state court, the trial convened, and Diva's continued to contest the constitutionality of both Code sections. Three weeks after the close of testimony, the City filed a...