Highland Tap of Boston, Inc. v. City of Boston

• Decision Date: 27 July 1988
• Docket Number: No. 88-P-116,88-P-116
• Citation: 26 Mass.App.Ct. 239,526 N.E.2d 253
• Parties: HIGHLAND TAP OF BOSTON, INC., et al. v. CITY OF BOSTON et al. 1
• Court: Appeals Court of Massachusetts

Page 253

526 N.E.2d 253

26 Mass.App.Ct. 239

HIGHLAND TAP OF BOSTON, INC., et al. v.CITY OF BOSTON et al.¹No. 88-P-116.

Appeals Court of Massachusetts Suffolk.

Argued June 2, 1988.

Decided July 27, 1988.

Timothy P. O'Neill(Susan M. Donnelly, with him), for defendants.

Kenneth H. Tatarian, for plaintiff.

Before DREBEN, KASS and FINE, JJ.

FINE, Justice.

This is an appeal by the commissioner of the mayor's office of consumer affairs and licensing (commissioner) and the city of Boston(city) from an order for a preliminary injunction entered on January 26, 1988, by a single justice of this court.The order enjoined the commissioner and the city from revoking or suspending the current (1988) entertainment license of the plaintiff, Highland Tap of Boston, Inc.(Highland Tap), and from interfering in any way with the plaintiff's presentation of floor shows which include nude dancing.A Superior Court judge had denied a request by Highland Tap for similar injunctive relief on January 12, 1988.We review the single justice's order "in the same manner as if it were an identical order by the trial judge considering the matter in the first instance" and without regard to the trial judge's earlier contrary order.Jet-line Services, Inc. v. Stoughton, 25 Mass.App.Ct. 645, 646, 521 N.E.2d 1035(1988).Thus, we ask whether the single justice abused his discretion by entering an order without having a supportable basis for doing so.SeeCarabetta Enterprises, Inc. v. Schena, 25 Mass.App.Ct. 389, 392, 518 N.E.2d 1163(1988).We find a supportable basis for the single justice's order as we narrowly construe it.

Highland Tap is an eating and drinking establishment located in the Roxbury section of Boston, which is outside the district designated in the Boston zoning code as an adult entertainment district.The club has offered live entertainment, including nude dancing, almost continuously since the end of 1979.At all relevant times it has held alcoholic beverage and common victualler's licenses, and, since prior to 1979, it has held an entertainment license issued pursuant to G.L. c. 140, § 183A.Almost immediately after the club started offering nude dancing, the city, through its licensing authorities, sought to prevent the club from doing so.The city's effort became the subject of litigation, and the effort to prevent the presentation of nude dancing was stymied by the issuance of several preliminary injunctions against the city, seeHighland Tap of Boston, Inc. v. Gargiulo, Superior Court, Suffolk County, No. 42026(1980, 1984), and by the determination, eventually, that G.L. c. 140, § 183A, as it existed prior to the effective date of a revision by St.1981, c. 694, § 1, was unconstitutionally overbroad and vague, seeVenuti v. Riordan, 521 F.Supp. 1027, 1031(D.Mass.1981).In the Superior Court case, a judge ruled in 1985, with respect to Highland Tap's licenses for the calendar years 1980 through 1985, that the city and the commissioner could not interfere with the club's nude dancing activities because both G.L. c. 140, § 183A, as it existed prior to the 1981 revision, and a licensing regulation promulgated by the city, prior to its alteration in 1983, under which the city had proceeded, were unconstitutional prior restraints.The judge also held that the new statutory scheme was constitutional on its face but that questions of fact existed as to its application to the instant situation.The case was dismissed by agreement of the parties before resolution of the factual issues and entry of final judgment.

The present litigation arose out of two actions taken by the commissioner on December 28, 1987.One concerned the license for 1987; it is probably now moot.With regard to the club's application for an entertainment license for 1988, on which the club noted its intention to provide nude dancing, the commissioner determined that an entertainment license would issue but that it would be subject to the terms and conditions set forth in the license and to the zoning code.Thus, the right to have nude dancing, according to the decision, would be conditioned upon a favorable determination after a public hearing under G.L. c. 140, § 183A.The relevant health and safety factors set forth in the seventh paragraph of that section would be determinative.

Although nude dancing implicates First Amendment considerations, there is some scope for valid regulation.SeeCalifornia v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342(1972);Doran v. Salem Inn Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648(1975);New York State Liquor Authy. v. Bellanca, 452 U.S. 714, 716, 101 S.Ct. 2599, 2600-01, 69 L.Ed.2d 357(1981).CompareCommonwealth v. Sees, 374 Mass. 532, 537, 373 N.E.2d 1151(1978), andCabaret Enterprises Inc. v. Alcoholic Beverages Control Commission, 393 Mass. 13, 17, 468 N.E.2d 612(1984), discussing the limits of valid regulation of nude dancing under art. 16 of our Declaration of Rights (as amended byart. 77 of the Amendments to the Massachusetts Constitution).The defendants urge that we adopt the view of the Superior Court judge who presided over the earlier litigation between Highland Tap and the city's licensing authorities and rule that the presently existing statutory scheme, set out in the appendix, is at least facially valid.Highland Tap, on the other hand, still challenges the statutory scheme on constitutional grounds; it contends that the statute does not authorize a separate license for nude dancing and, therefore, that its entertainment license affords it the right to offer that form of entertainment without interference; and it claims that the defendants did not comply with the requirement in the statute that they provide the opportunity for a hearing within forty-five days of the receipt of the application for the 1988 license.²Also, to the extent that the defendants are relying upon the existence of an established zone for adult entertainment, Highland Tap argues that the commissioner is not the official named in Section 5-1 of the Boston Zoning Code(as amended through April 30, 1985), as authorized to enforce zoning requirements.CompareG.L. c. 40A, § 7.

Although it would not be appropriate for us to rule finally on the complicated issues in the case at this preliminary stage of the proceedings, we note that the constitutional shortcomings found in the preexisting statutory scheme may have been cured.³Moreover, there is growing support for the right of municipalities through the use of their zoning power to limit adult entertainment to certain defined geographic areas.SeeYoung v. American Mini Theatres, Inc., 427 U.S. 50, 71-73, 96 S.Ct. 2440, 2452-53, 49 L.Ed.2d 310(1976);Renton v. Playtime Theatres, Inc., 475 U.S. 41, 52, 106 S.Ct. 925, 931, 89 L.Ed.2d 29(1986);Northend Cinema, Inc. v. Seattle, 90 Wash.2d 709, 717-719, 585 P.2d 1153(1978).We would be hesitant to state, therefore, that Highland Tap is likely to prevail ultimately on the merits of its constitutional claim insofar as it seeks to prevent the city's licensing authorities from holding a hearing to consider the factors outlined in G.L. c. 140, § 183A(7th par.), and to determine whether to grant the club's application for a license to provide entertainment including nude dancing.Highland Tap, however, may have meritorious statutory claims regarding the scheduling requirements for a public hearing concerning a license and the ability of the commissioner to enforce zoning requirements.These issues, as well as the constitutional claims, are best resolved at trial.

The single justice, recognizing that First Amendment rights were implicated, appropriately expressed his concern for preserving the status quo pending a full trial on the merits.His order accomplished that objective.It is not controverted that the club now has been providing nude dancing entertainment almost continuously for eight years.If the club has never had the blessings of the licensing authorities to do so, it has had, for most of the intervening period, the protection of court orders.To allow the city now to interfere with that right would be an alteration, in fact, of the status quo, with at least a possibility of interference with First Amendment rights of the club and its patrons.

The order by its terms prevented the defendants from "taking any action to revoke or suspend the current entertainment license" issued with qualifications by the commissioner under the December 28, 1987, decision, or "interfering in any way with the presentation ... of a floor show which includes nude dance entertainment."It does not expressly prohibit the defendants from holding a public hearing under G.L. c. 140, § 183A, although that appears to be what the single justice intended and how the parties interpreted the order.To the extent that the order may be interpreted as enjoining the defendants from holding a public hearing to consider the health and safety factors set forth in the statute, we would modify it.With respect to the city's authority to hold such a hearing, we differ with the single justice.He expressed doubt in his decision whether the defendants could, on the basis of a hearing, revoke the 1988 entertainment license which had actually been issued.However, the same factors would probably be relevant to an attempt by the city to revoke a license which had been issued as would be relevant to the issuance of the license in the first place.G.L. c. 140, § 183A(8th par.).In both situations, the burden would be on the defendants to show why the club should not have the license.In any event, we do not see how Highland Tap would be prejudiced if such a hearing should be held, so long as, pending resolution of the case on the merits, there is compliance with the express terms of the single justice's order preventing revocation or suspension of the license and interference with...