El Marocco Club, Inc. v. Richardson

• Decision Date: 18 February 2000
• Docket Number: No. 98-213-A.,98-213-A.
• Citation: 746 A.2d 1228
• Parties: El Marocco Club, Inc., et al. v. Kenneth Richardson, in his capacity as Treasurer of the Town of Johnston et al.
• Court: Rhode Island Supreme Court

746 A.2d 1228

El Marocco Club, Inc., et al. v. Kenneth Richardson, in his capacity as Treasurer of the Town of Johnston et al.

No. 98-213-A.

Supreme Court of Rhode Island.

February 18, 2000.

Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Robert S. Ciresi, North Providence, Daniel A. Silver, for plaintiff.

Kathleen M. Powers, Marc DeSisto, R. Kelly Sheridan, Providence, for defendant.

OPINION

FLANDERS, Justice.

Under applicable state law and consistent with the free-speech rights protected by the United States Constitution, can a municipality enact an ordinance that prohibits displays of nudity at local liquor-serving establishments? For the reasons bared below, we answer this question in the affirmative.

Facts and Travel

The plaintiff nightclub, El Marocco Club, Inc., appeals from the Superior Court's entry of a judgment in favor of the defendant, Town of Johnston (town). The plaintiff sought to invalidate town Ordinance No. 965, first enacted in 1996, because it prohibited displays of nudity at plaintiff's nightclub and at other local liquor-serving establishments.¹ On March 27, 1997, the town's police ordered plaintiff to cease and desist from violating the ordinance. At that time plaintiff featured nude barroom dancing and sold alcoholic beverages for consumption at its Johnston nightclub. The plaintiff, in turn, filed this lawsuit contesting the validity of the Ordinance, asking for injunctive relief, and seeking damages for the business it claimed to have lost stemming from the town's enforcement of the ordinance, including damages under 42 U.S.C. § 1983. After the Superior Court denied plaintiff's motion for temporary injunctive relief, the town moved for and obtained a summary judgment dismissing plaintiff's complaint. Because we hold that Ordinance No. 965 constituted a valid exercise of the town's power to impose reasonable conditions upon the granting of local liquor licenses and did not unconstitutionally abridge plaintiff's free-speech rights as protected by the First and Fourteenth Amendments to the United States Constitution, we affirm the court's entry of summary judgment in favor of the town.

On appeal, plaintiff raises two arguments. First, it contends that the town lacked the power under state law to adopt Ordinance No. 965. Second, plaintiff suggests that even if the town had the power to do so, the ordinance abridged plaintiff's First and Fourteenth Amendment rights under the United States Constitution to engage in protected-free-speech activities. In turn, we undress each of these arguments.

I Did the Town Have the Power to Enact Ordinance No. 965?

The plaintiff first contends that the town lacked authority under applicable state law to enact Ordinance No. 965 because the ordinance became effective before the General Assembly's adoption of P.L.1997, ch. 9, amending G.L.1956 § 3-7-7.3.² That amendment authorized municipalities in Rhode Island that issue Class B liquor licenses to restrict or prohibit entertainment at such licensed facilities.³ The plaintiff argues that before this 1997 amendment to § 3-7-7.3 became effective on March 25, 1997, the town lacked the authority to restrict or prohibit nude-dancing entertainment at liquor-serving establishments in the town.⁴ Because the town enacted Ordinance No. 965 before the effective date of the 1997 amendment to § 3-7-7.3, plaintiff contends that the town's adoption of Ordinance No. 965 was ultra vires. Further, plaintiff argues that the 1997 amendment to § 3-7-7.3 does not apply retrospectively to validate this ordinance.

Prospectively, we conclude that plaintiff's challenge to the validity of Ordinance No. 965 has been rendered moot by the town's enactment of Ordinance No. 1057, which it passed in November 1998. Because this later-enacted ordinance is virtually identical to Ordinance No. 965, there can be no question but that the town was empowered by the General Assembly to enact Ordinance No. 1057 after the 1997 amendment to § 3-7-7.3 became effective on March 25, 1997. Moreover, even before the 1997 amendment to § 3-7-7.3, the General Assembly had authorized municipalities to attach reasonable conditions to the issuance of liquor licenses. See Thompson v. Town of East Greenwich, 512 A.2d 837 (R.I.1986).

"According to § 3-5-15, the General Assembly has delegated to `the town councils or license boards of the several towns' the full and plenary power to issue, inter alia, class-B liquor licenses. This authority to issue such licenses is logically and appropriately complemented by § 3-5-21, which legislatively empowers these same governing bodies to revoke or suspend a liquor license for breach of any conditions upon which it was issued. From a review of the language in § 3-5-21, it is our considered judgment that the Legislature intended in conferring the power to revoke or suspend to implicitly authorize municipalities to attach conditions to the issuance of liquor licenses. If such an implication is not read into the statute, the power to revoke or suspend becomes a nullity since there is no basis upon which it can be exercised." Id. at 841 (citing Gott v. Norberg, 417 A.2d 1352, 1356-57 (R.I.1980)). (Emphasis added.)

We conclude that the ordinance in question — barring public displays of nudity at commercial establishments that serve liquor — effectively constituted a condition upon the issuance of liquor licenses in the town. Title 3 of the General Laws permitted such conditions even before the 1997 amendment to § 3-7-7.3 became effective because they are in furtherance of the declared purpose of this title, namely, "the promotion of temperance and for the reasonable control of the traffic in alcoholic beverages." G.L. 1956 § 3-1-5. Moreover, § 3-7-7.3, as amended in 1997, grants to municipalities the specific authority to prohibit all entertainment at establishments holding Class B liquor licenses. Because Ordinance No. 1057 was passed after the 1997 effective date of § 3-7-7.3, the town unquestionably possessed the statutory authority to enact an ordinance that would effectively prevent nude entertainment at the town's liquor-serving establishments. As a result, plaintiff's request for injunctive and declaratory relief vis-à-vis Ordinance No. 965 has been effectively rendered moot by the town's enactment of Ordinance No. 1057.

The plaintiff further argues, however, that the General Assembly has preempted this type of entertainment regulation from municipal licensing. The plaintiff points to the text of § 3-7-7 in support of its argument. That law provides that no "dances" shall be permitted in establishments holding Class B liquor licenses unless a permit is obtained from the local licensing authority.⁵ Section 3-7-7(a)(3). This language has been interpreted to address those dances "to which admission can be obtained only by the payment of a separate fee or charge," and not "to the incidental kind of entertainment which may be provided for patrons while they are dining and for which they pay no separate charge." Chernov Enterprises, Inc. v. Scuncio, 107 R.I. 439, 443-44, 268 A.2d 424, 427 (1970). Because the nude dancing offered by plaintiff was of the latter type, § 3-7-7(a)(3) was not applicable to its situation. Nevertheless, plaintiff argues that § 3-7-7 amounts to legislative control of the types of entertainment that may be permitted in a Class B liquor-licensed establishment, and therefore it concludes that the General Assembly has preempted the field to the exclusion of municipal regulation of this activity. The plaintiff also points to § 3-7-7.3 in support of its preemption argument. It argues that, before the 1997 amendment to § 3-7-7.3 (which expressly empowered all municipalities to prohibit or restrict entertainment in those establishments holding Class B liquor licenses), the 1993 enactment of this law only gave such power to certain specified Rhode Island cities and towns (not including this municipality) that had not previously issued Class B liquor licenses. Thus, plaintiff argues, before the 1997 Amendment, the General Assembly retained control over which municipalities had the power to regulate such entertainment and this retained control effectively preempted the town's attempts to regulate in this area.

We are of the opinion that plaintiff has misconstrued both § 3-7-7 and § 3-7-7.3. Under § 3-7-7, the General Assembly did not attempt to regulate all types of entertainment at liquor-serving establishments in a manner that would justify a conclusion that it intended to preempt municipalities from regulating in this area. On the contrary, the General Assembly delegated the power to permit certain types of dances at such establishments (namely, those "to which admission can be obtained only by the payment of a separate fee or charge," Chernov Enterprises, Inc., 107 R.I. at 443-44, 268 A.2d at 427), to local licensing boards, and expressly empowered such boards to revoke or suspend such licenses "for breach by the holder of the license of the conditions on which it was issued * * *." G.L. 1956 § 3-5-21. Absent a direct conflict between a statute and an ordinance, or some other clear indication, either express or implied, that the General Assembly intended to occupy the field of liquor licensing and its regulation to the exclusion of local licensing authorities, state law will not be held to preempt local ordinances in this area. See Providence City Council v. Cianci, 650 A.2d 499, 501 (R.I. 1994).

Here, the General Assembly has not manifested a clear legislative intent to deprive the various municipalities of their delegated power to license establishments that serve liquor and to impose reasonable conditions upon the granting of such licenses. In fact, state law quite clearly delegates the state's licensing power to the local licensing authorities and permits such licenses to be revoked or suspended for breach of any of the conditions on which the license has...