Fantasy Book Shop, Inc. v. City of Boston, Civ. A. No. 80-2585-MC.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Writing for the Court: Laurie Burt, Foley, Hoag & Eliot, Boston, Mass., for Chinese Economic Development Inc
• Citation: 531 F. Supp. 821
• Parties: FANTASY BOOK SHOP, INC., et al., Plaintiffs, v. CITY OF BOSTON, et al., Defendants.
• Docket Number: Civ. A. No. 80-2585-MC.
• Decision Date: 16 February 1982

531 F. Supp. 821

FANTASY BOOK SHOP, INC., et al., Plaintiffs,
v.
CITY OF BOSTON, et al., Defendants.

Civ. A. No. 80-2585-MC.

United States District Court, D. Massachusetts.

February 16, 1982.

531 F. Supp. 822

Regina L. Quinlan and Leonard A. Lucas, Boston, Mass., for plaintiffs.

Margaret M. Brown, Harry G. Stoddard, Boston, Mass., for Robert Ryan and Boston Redevelopment Authority.

Laurie Burt, Foley, Hoag & Eliot, Boston, Mass., for Chinese Economic Development Inc.

Arlene S. LaPenta, Boston, Mass., for City of Boston, Kevin White and Joanne Prevost.

Nicholas Foundas, Legal Advisor, Boston, Mass., for Boston Police Dept.

MEMORANDUM AND ORDER

McNAUGHT, District Judge.

This action came on to be heard on the motion to dismiss of the Chinese Economic Development Council, Inc., Michael O'Bryon, and William J. Leong (collectively, the CEDC, hereinafter).¹ At the hearing, a bench memorandum was read into the record and counsel agreed that it correctly set forth the arguments of both parties. That memorandum, in pertinent part, read as follows:

Plaintiffs brought this action seeking declaratory and injunctive relief for alleged violations of rights guaranteed to them by the First and Fourteenth Amendments and protected by various civil rights statutes.

The court denied a preliminary injunction on January 16, 1981. In Fantasy Books v. City of Boston, 652 F.2d 1115

531 F. Supp. 823

(1st Cir. 1981), the First Circuit found that the licensing ordinance was not per se unconstitutional, that the licensing scheme was procedurally adequate, that three of the licensing criteria (relating to noise, traffic, and disruptive conduct) were facially constitutional, that the fourth criteria ("legitimate protectible interests of ... affected citizens") provided for "purely subjective evaluations of wholly unrestricted factors" and was unconstitutionally vague, and finally that the denials (based on probable increased disruptive conduct) must be based on, and accompanied by, specifically identifiable findings regarding the basis for defendant Prevost's conclusion that the licenses would lead to disruptive conduct and whether that conclusion rather than content-based considerations motivated the denials of plaintiffs' applications.

CEDC now moves for dismissal of Counts III, IV and V (the only counts mentioning CEDC) for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.

CEDC contends that Count III (violation of 42 U.S.C. § 1983) fails to state a cause of action since it lacks allegations of "state action" by CEDC. Its actions, says CEDC, were purely private in nature and did not involve state action. Under none of the three theories of private liability can its actions be considered state action, argues the CEDC, those theories being: (1) where private entity performs a "public function", (2) where there is close and extensive involvement of state in acts of private entity, or (3) where there is a sufficient nexus between the state and acts of a private party.

CEDC argues that its purchase of the property in question does not amount to performance of a public function; that its receipt of public funds does not establish the "symbiotic relationship" necessary for finding "state action"; and that it is in no way regulated or controlled by the government.

CEDC's second argument for dismissal is that the claim of plaintiffs does not involve a federally protected constitutional right which CEDC has infringed. Expression of opposition to granting of licenses for peep shows, argues CEDC, does not constitute injury to plaintiffs' rights. CEDC characterizes plaintiffs' injuries as "commercial frustration" in being unable to locate their businesses where they would choose.

CEDC argues that there is no allegation of racial or other class-based invidiously discriminatory animus behind its actions. CEDC also argues the failure to allege material facts showing the existence of a conspiracy.

Plaintiffs argue that Count III sufficiently alleges that CEDC's actions constitute state actions in eliminating existing adult uses for the premises in question. They contend that after evaluating all of the facts, a symbiotic relationship between the CEDC and the state is shown. They argue that pronouncements of public officials in support of the CEDC redevelopment project and of eliminating the Combat Zone show a relationship sufficient to establish state action. Also, they argue that CEDC's participation in the conspiracy alleged in Count IV is sufficient to establish state action under § 1983.

The interest protected by the Constitution, say plaintiffs, is the right to conduct adult business. The licensing

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