Saints and Sinners v. City of Providence, C.A. No. 99-563-L (D. R.I. 11/13/2001)
| Decision Date | 13 November 2001 |
| Docket Number | C.A. No. 99-563-L. |
| Parties | SAINTS AND SINNERS a/k/a, R.I. CRANSTON ENTERTAINMENT, INC. and ALAN BOGOSSIAN Plaintiffs, v. CITY OF PROVIDENCE; ARLINE FELDMAN; ALAN CONSTANTINO; MARGARET DE FELICE; ANDREW ANNALDO, Individually and in their official capacities as Members, the Providence Board of Licenses, and GORDON FOX, solely in his official capacity as Member, Providence Board of Licenses Defendants. |
| Court | U.S. District Court — District of Rhode Island |
John Dineen, Esq., Yesser, Glasson & Dineen, Providence, RI, for plaintiffs.
Kevin F. McHugh, Esq., City of Providence, Law Department Providence, RI, for defendants.
This case involves the denial of an adult entertainment license and the denial of a liquor license transfer for the same proposed establishment. Plaintiffs, Rhode Island Cranston Entertainment, Inc., also know as Saints and Sinners, and its President, Alan Bogossian, bring this action under 42 U.S.C. § 1983 alleging violations of the First Amendment by the City of Providence and the members of the Providence Board of Licenses ("Board"). Plaintiffs claim that their First Amendment rights were violated when the licenses were denied by the Board because the Board impermissibly infringed on Plaintiffs' right to open an adult entertainment establishment. Plaintiffs seek injunctive relief and damages.
This case is before the Court on plaintiffs' motion for partial summary judgement and defendants' cross-motion for summary judgement. The Court concludes that plaintiffs' First Amendment rights were violated by the Board, and issues a mandatory injunction requiring the Board to issue the adult entertainment license and also to grant the transfer of the liquor license.
Plaintiffs moved for partial summary judgement pursuant to Rule 56. Defendants moved for summary judgement under Rule 56(c). Under Rule 56(c), the Court may enter a summary judgement on the issue of liability alone "although there is a genuine issue as to the amount of damages." Plaintiffs are only asking for a resolution of the issue of liability and injunctive relief, not damages, costs and attorney's fees. Therefore, a Rule 56(c) motion is appropriate.
The Court must examine the record to determine if any genuine issue of material fact exists and whether the moving party is entitled to judgement as a matter of law. Fed.R.Civ.P. 56(c). If there are no questions of material fact, then summary judgement is appropriate on any questions of law. Blackie v. Maine 75 F.3d 716, 721 (1st Cir. 1996). The coincidence that both parties move for summary judgement does not relax the standards under Rule 56. Id. Barring special circumstances, the District Court must consider each motion separately, drawing inferences against each movant in turn. Id.
The facts of this case are not in dispute. In 1999, Alan Bogossian sought to open an adult entertainment club, Brief Encounters and Saints & Sinners, geared towards the gay community. He applied for the necessary licenses to operate such a business at 257 Allens Avenue, Providence. That property, 257 Allens Avenue, is located in an area of Providence zoned M-2 or Heavy Industrial District. Under the Providence Zoning Ordinance, adult entertainment is a permitted use in an M-2 zone. In all, plaintiffs applied for a Food Dispenser License, a Sunday Sales License, an Adult Entertainment License and plaintiff Bogossian sought permission to transfer an existing Liquor License to this establishment. These license applications were made to the Board, the authority that issues licenses in the City of Providence.
The Board held a hearing on August 6, 1999 to discuss the liquor license transfer and adult entertainment license application. At that meeting, the Board took testimony from the applicant, the proposed landlord and three interested citizens. The Board members present were defendants Arline Feldman, Margaret DeFelice and Andrew Annaldo. Also present was the Chairman of the Board, Raymond Dettore, Jr. The members of the public who testified against the license applications were Councilman Louis Aponte, Councilwoman Belbina A. Young and Victor Capellan. The Chairman also read into the record a letter from the Washington Park Citizens Association and Washington Park Community Center. The landlord of 257 Allens Avenue, Ralph Cafaro, and plaintiff Alan Bogossian testified in favor of granting the licenses. John Reilly also appeared before the Board as counsel for Bogossian. The Board did not vote on the matter at the August 6, 1999 meeting.
The Board met again on October 8, 1999 to vote on the license applications. The Board took two separate votes, one on the adult entertainment license and one on the liquor license transfer. The Board denied each license application by a 4-1 vote, with only Chairman Dettore voting in support of the applications.
The two meetings of the Board were transcribed by a stenographer, and the transcripts of those meetings were submitted to the Court. The accuracy of the transcripts is not disputed.
Plaintiffs commenced suit in this Court on November 16, 1999. Three of the defendants moved for partial summary judgement raising the defense of qualified immunity. One defendant, Dettore, moved for dismissal pursuant to 12(b)(1) and 12(b)(6). On February 9, 2001, Magistrate Judge Martin issued a Report and Recommendation suggesting denial of defendants' motions. This Court agreed with his recommendation. On March 15, 2001, this Court, reviewing the matter de novo, denied defendants' summary judgement motion and defendant Dettore's motions to dismiss.
Subsequently, plaintiffs moved for partial summary judgement under Rule 56. Plaintiffs claim that their First Amendment rights were violated by the Board when it denied the two license applications. Plaintiffs seek an injunction requiring the Board to approve the two licenses. Plaintiffs are not requesting a determination of damages, costs and attorney's fees at this time, since obviously there are disputed issues of fact relating to those issues.
Defendants assert that the Board's denial of the adult entertainment license was a permissible time, place and manner restriction on this type of speech. Defendants further argue that the Court should only consider the denial of the adult entertainment license in this proceeding because there is no federal right to a liquor license.
On March 29, 2001, the parties stipulated and an order was entered that Dettore was no longer on the Board. Gordon Fox, a new member of the Board, was added to the lawsuit solely in his official capacity as a member of the Board.
This Court must resolve two issues in this case. First, the Court must determine whether defendants' denial of the adult entertainment license violated plaintiffs' First Amendment rights. If the answer is yes, then the Court must also determine whether the Board's refusal to transfer the liquor license to the new establishment falls under the First Amendment protection accorded to nude dancing. It is well established that the First Amendment is made applicable to the states via the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1925).
As Yogi Berra, that great 20th Century American philosopher said: "This is deja vu all over again." One year and ten days prior to the Board's vote on this adult entertainment license application, this writer issued a ruling that invalidated Providence's moratorium on the issuance of adult entertainment licenses. D'Ambra v. City of Providence, 21 F. Supp.2d 106 (D.R.I. 1998). The dispute in D'Ambra was about an adult entertainment license for the very same property at issue in the instant case, 257 Allens Avenue. The challenge was to the same Board's actions. Even the lawyers for each side were the same.
There are, however, a few slight differences between the instant case and D'Ambra. Here, the Board did not explicitly state that it was creating a moratorium. Its members only said that they would not issue any more licenses for adult entertainment in an area of the city zoned for adult entertainment, implicitly creating a moratorium. Second, a liquor license transfer was also denied here. Third, the Chairman of the Board, Dettore, voted against issuance of the license in D'Ambra, but in favor of the applications here. He obviously had gotten the message emanating from this Court.
As this Court stated in D'Ambra, which obviously needs to be restated here, United States Supreme Court doctrine in this area has been stable for more than a decade. D'Ambra, 21 F. Supp.2d at 108. Adult entertainment, that is nude or semi-nude dancing, is protected by the First Amendment. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66 (1991). The First Amendment makes no distinction between male strippers and female strippers. It protects nude and semi-nude dancing, regardless of the size of the breasts on display.
Just because adult entertainment merits First Amendment protection, however, does not mean that it cannot be regulated. In an effort to curb the secondary effects of nude dancing, such as increased crime, the government may impose reasonable time, place and manner restrictions that do not forbid protected speech. D'Ambra, 21 F. Supp.2d at 113 (). The restrictions must be content neutral, be narrowly tailored and provide alternate channels for communication. Id. Most importantly, any regulation of adult entertainment cannot give unbridled discretion to the Board to reject an applicant for the content of his or her speech. Id. at 112-13.
In Providence, the City Council has established a zoning plan to address the secondary effects of adult entertainment. The Rhode Island Supreme...
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