Mendoza v. Licensing Board

Citation827 N.E.2d 180,444 Mass. 188
PartiesJose MENDOZA<SMALL><SUP>1</SUP></SMALL> v. LICENSING BOARD OF FALL RIVER & another<SMALL><SUP>2</SUP></SMALL> (and a companion case).
Decision Date11 May 2005
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

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827 N.E.2d 180
444 Mass. 188
LICENSING BOARD OF FALL RIVER & another2 (and a companion case).
Supreme Judicial Court of Massachusetts, Bristol.
Argued January 4, 2005.
Decided May 11, 2005.

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Thomas Lesser, Northampton, for the plaintiff.

Thomas F. McGuire, Jr., Fall River, for the defendants.

Sarah R. Wunsch, Boston, James L. Quarles, III, & Steven P. Lehotsky for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.



For eight years, Jose Mendoza, the proprietor of Oliver's, a bar and entertainment venue in Fall River, has sought to stage nude dancing. Through its elected and appointed officials, the city of Fall River (city or Fall River) has attempted to prevent Mendoza from doing so, repeatedly denying his application for an adult entertainment license and passing various restrictive ordinances. The dispute eventually resulted in litigation. After a series of judgments in the Superior Court, both parties appealed. The city appeals from judgments that its public indecency ordinance (indecency ordinance),3 which purports to ban all public nudity, violates art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the

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Amendments to the Massachusetts Constitution ("The right of free speech shall not be abridged"), and that Mendoza is entitled to a portion of his attorney's fees and costs as a "prevailing party" under 42 U.S.C. § 1988 (2000). Mendoza appeals from a judgment that, given the scope of Oliver's current zoning variance, he must obtain a new variance in order to offer nude dancing there.

Consistent with our prior decisions interpreting art. 16, we conclude that the city's indecency ordinance violates the guarantee of free expression contained therein, and affirm the judgment declaring the ordinance unconstitutional. We also affirm the judgment that nude dancing is not a permissible use under the property's current variance. Finally, we affirm the award to Mendoza of his attorney's fees.

1. Background. This case arises from protracted licensing proceedings and litigation between Mendoza and the city that we detail below. Since 1983, Oliver's has operated as a restaurant and bar at its present location, adjacent to an airport in the Fall River Industrial Park.4 Oliver's has held a live entertainment license since 1985 and has hosted various types of entertainment and music for its patrons, including rock and roll concerts for up to 400 people. In 1996, the airport closed, and the owner of the Oliver's parcel, Cathleen Viveiros, received a zoning variance from the zoning board of appeals of Fall River (board of appeals) to continue operating the establishment.5 We reserve discussion of the circumstances surrounding the granting of this variance for the section of the opinion that addresses its scope.

In 1997, Mendoza, the operator of Oliver's who leased the property from Viveiros, filed an application with the licensing board of Fall River (licensing board) for an adult entertainment license to present nude dancing. After a public hearing, the licensing board denied the application as premature, finding that adult entertainment was not within the scope of the property's 1996 zoning variance.6 Within two months of the denial, the city enacted an amendment to its zoning ordinance to provide for an adult entertainment special permit procedure and an adult entertainment overlay district, confining such uses to an area located outside the Fall River Industrial Park. Subsequently, Mendoza filed a lawsuit against the city and the licensing board challenging the denial of his license application, the validity

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of the licensing board's process for issuing adult entertainment licenses, and the validity of the zoning ordinance amendment and overlay district.

In 1999, Mendoza filed a second application with the licensing board, seeking to expand the scope of Oliver's existing entertainment license to include nude dancing. After a public hearing, the licensing board denied the application on its merits, finding that Mendoza had failed to establish that the license he sought would not adversely affect the public's health, safety, or order as required by G.L. c. 140, § 183A.7 In response, Mendoza filed a second lawsuit against the city and the licensing board in the form of a petition for certiorari, challenging the denial of the license, the 1997 zoning ordinance and overlay district, and the procedure for obtaining an adult entertainment license. On June 28, 2000, a judge in the Superior Court entered partial summary judgment for Mendoza, holding that the licensing board had improperly shifted the burden of proof under G.L. c. 140, § 183A, to him, and that a license must issue unless the licensing board meets its burden of justifying the denial by enumerating the factors it considered and providing a reasoned basis for the result. The judge then remanded the case to the licensing board for further proceedings.

On remand, the licensing board again denied Mendoza's application. Several days before the licensing board issued its written denial, the city enacted a public indecency ordinance, which, inter alia, banned public nudity in Fall River. The city also enacted a related amendment to its zoning ordinance, making changes to the adult entertainment overlay district, deleting nude dancing as a permissible use in such a district, and revising the adult entertainment special permit process. The new district again did not include any part of the Fall River Industrial Park.

In December, 2000, Mendoza amended the complaint in his second lawsuit to challenge the latest denial of his application by the licensing board and to assert State and Federal constitutional challenges to the city's new ordinances related to public indecency

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and adult entertainment. On January 2, 2001, the judge ruled on further motions for summary judgment filed by the parties, concluding that the licensing board failed to meet its burden under G.L. c. 140, § 183A, to justify its denial of the license. In particular, the judge rejected the licensing board's reliance on studies of the secondary effects of adult entertainment in locations outside of Massachusetts, finding that those studies "do not provide enough information with which to rationally reach a conclusion regarding the specific business involved in the instant case." He further found that Mendoza was in compliance with G.L. c. 140, § 183A, and entered an order requiring the licensing board to issue the adult entertainment license, retroactively effective to September 1, 1999, the date of the first denial of Mendoza's 1999 application.8 As ordered by the judge, the licensing board issued an adult entertainment license to Oliver's on January 10, 2001, but conditioned it on the establishment's adherence to the public indecency ordinance banning all public nudity.

To avoid the enforcement of the indecency ordinance, Mendoza obtained a preliminary injunction against the city from a second judge, premised on Mendoza's likely success on the merits of his constitutional challenge to it. On April 2, 2001, Oliver's began presenting nude dancing. The city sought review before a single justice of the Appeals Court, who vacated the preliminary injunction on April 30, 2001. After a month of performances, nude dancing at Oliver's ended.

Mendoza's first and second lawsuits were thereafter consolidated, and Mendoza filed four motions for partial summary judgment separately challenging the constitutionality of the indecency ordinance, the overlay district ordinance, the special permit ordinance, and the licensing board's and the city's actions in 1997. The city and licensing board filed a cross motion for summary judgment on all claims. A third judge granted Mendoza's motions in part, issuing a declaratory judgment that the indecency ordinance, while not violative of the First Amendment to the United States Constitution, was unconstitutional under art. 16. The city appealed from this judgment. The judge's rulings on Mendoza's other motions were not appealed from by either party.9

On September 11, 2002, a bench trial on Mendoza's remaining claims was held in the Superior Court before a fourth judge, who found that Oliver's original 1996 zoning variance did not permit adult entertainment and that Mendoza would have to obtain an additional zoning variance to present nude dancing at Oliver's. Mendoza appealed.10 The judge also issued declaratory judgments invalidating the adult entertainment overlay district and special permit process on State and

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Federal constitutional grounds. The city has not appealed from these judgments.

In his decision, the judge invited requests for the award of attorney's fees and costs. After considering the parties' submissions, the judge determined that Mendoza was the "prevailing party" in the litigation and thus entitled to attorney's fees and costs related to his successful Federal constitutional claims under 42 U.S.C. § 1988, but not entitled to those fees and costs related to his State constitutional claims. The city and licensing board appeal from the legal conclusion underlying the award that Mendoza was the "prevailing party." We transferred the parties' appeals from the Appeals Court on our own motion.

2. Constitutionality of the public indecency ordinance under art. 16. Enacted in November, 2000, during a flurry of legislative activity directed at restricting adult entertainment in the city, the indecency ordinance makes it a "summary offense" knowingly or intentionally to "appear[] in a state of nudity" in a "public place." The indecency ordinance defines "[n]udity" as:

"[T]he showing of the human male or female genitals, pubic hair or buttocks with less than a fully opaque covering; the showing of the...

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