Showtime Entm't LLC v. Ammendolia

• Decision Date: 22 March 2012
• Docket Number: Civil Action No. 10–40194–FDS.
• Parties: SHOWTIME ENTERTAINMENT LLC, Plaintiffs, v. Mike AMMENDOLIA, in his official capacity, Lawney Tinio, in his official capacity, and the Town of Mendon, Defendants.
• Court: U.S. District Court — District of Massachusetts

885 F.Supp.2d 479

SHOWTIME ENTERTAINMENT LLC, Plaintiffs,

v.Mike AMMENDOLIA, in his official capacity, Lawney Tinio, in his official capacity, and the Town of Mendon, Defendants.

Civil Action No. 10–40194–FDS.

United States District Court, D. Massachusetts.

March 22, 2012.

Michael E. Aleo, Thomas Lesser, Lesser, Newman & Nasser, LLP, Northampton, MA, for Plaintiffs.

Geoffrey B. McCullough, Murphy, Hesse, Toomey & Lehane, LLP, Boston, MA, Robert S. Mangiaratti, Brandon H. Moss, Murphy, Hesse, Toomey & Lehane, LLP, Quincy, MA, for Defendants.

MEMORANDUM AND ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT

SAYLOR, District Judge.

This action arises from an application by plaintiff Showtime Entertainment LLC to the Town of Mendon for an entertainment license to present live nude dancing. After denying Showtime's initial application, the town's Board of Selectmen granted its second application. The license that the Board granted is contingent on Showtime's compliance with the town's zoning by-laws, including one that requires that any adult entertainment establishment obtain a special permit from the town's Zoning Board of Appeals before it can commence business. Counts 1 and 2 of the complaint allege that the by-law's special permit scheme is an impermissible prior restraint in violation of the First and Fourteenth Amendments because it grants the Zoning Board unbridled discretion in deciding whether to grant the special permit.

The parties have filed cross-motions for summary judgment on this issue. The Court will grant relief in favor of Showtime as to both counts. That ruling, as explained below, is neither an endorsement of the proposed adult entertainment establishment, nor a condemnation of the efforts of the town to regulate it. To the contrary, the Court is entirely sympathetic to the concerns of the people of Mendon, as reflected in the actions of their public officials, that such an establishment is likely to have a deleterious effect on the community in a variety of ways. Nonetheless, both this Court and the town itself are bound by long-standing principles of constitutional law that narrowly constrain the manner in which activities protected by the First Amendment may be regulated. Because the by-law at issue—at least in its current form—violates those principles, the Court has no choice but to grant relief to the plaintiff.

I. Background

On May 2, 2008, the Town of Mendon adopted a zoning by-law that established an adult entertainment overlay district consisting of four lots on Milford Street. (Compl. & Answer ¶ 6; Pl.'s Appx. at 1–4).¹ Section 5.01(b) of the by-law states the purpose of the ordinance:

The purpose of this Adult Entertainment Overlay District section of the Town of Mendon Zoning Bylaws is to address and mitigate the secondary effects of adult entertainment establishments. Secondary effects impact the health, safety[,] and general welfare of the Town of Mendon and its inhabitants. These effects include increased crime, and adverse impacts on public health, the business climate, the property values of residential and commercial property[,] and the quality of life.

The provisions of this section have neither the purpose nor intent of imposing a limitation on the content of any communicative matter or materials .... Similarly, it is not the purpose or intent of this Section ... to restrict or deny access to adult entertainment establishments or to sexually oriented matter or materials that is protected by the Constitutions of the United States and the Commonwealth of Massachusetts ....

(Pl.'s Appx. at 1).

Section 5.01(f) of the by-law requires that anyone wishing to operate an adult entertainment establishment in the overlay district must obtain a special permit from the Mendon Board of Zoning Appeals:

Adult entertainment enterprises may be allowed in the Overlay District only by Special Permit granted by the Board of Appeals. No Special Permit may be granted by the Board of Appeals for an Adult Bookstore, Adult Video Store, Adult Paraphernalia Store, Adult Motion Picture Theater, or Adult Live Entertainment Establishment unless the following conditions and limitations are satisfied in addition to all other zoning conditions:

(i) No Adult Entertainment Establishment shall be located less than 500 feet from a child care facility ..., nor less than 300 feet from any residential building ....

(ii) A minimum 50 foot vegetated buffer containing adequate screening shall be provided between an adult entertainment establishment and other abutters .... Structures with the proposed use shall be located a minimum of 100 feet from any street line.

(iii) No material depicting, describing[,] or relating to sexual conduct ... shall be displayed in the windows of, or on the building of, any Adult Entertainment Establishment, or be visible to the public from the pedestrian sidewalks ....

(iv) [Various sign limitations must be followed.]

(v) No [obscene or indecent] merchandise or services ... shall be disseminated or available therein.

(vi) Appearance of buildings ... shall be consistent with the appearance of buildings in similar (but not specifically “adult”) use in Mendon .... A six (6) foot high solid fence or a landscaped buffer of evergreen trees or shrubs six (6) feet high at the time of planting shall be provided and maintained along the side and rear property lines.

(vii) No more than one structure to be used for adult entertainment shall be located on any one lot.

(viii) No Adult Entertainment special permit shall be issued to any person convicted of violating [specified criminal statutes].

(Pl.'s Appx. at 2).

Finally, Section 5.01(g)(iii) of the by-law gives the Zoning Board of Appeals authority to attach certain types of conditions to special permits issued to adult entertainment establishments:

In approving a Special Permit, the Special Permit granting authority may attach such conditions, limitations, and safeguards as are deemed necessary to protect the immediate area and the Town, provided however that no such conditions in fact prohibit the use of the property for the use intended. Conditions of approval may include but are not limited to requirements regarding [setbacks, parking facilities, building appearance, building size, methods and time of operation, and traffic control].

(Pl.'s Appx. at 25).

In addition to complying with the town's zoning by-laws, any bar or restaurant that seeks to present nude dancing in Mendon must also obtain an entertainment license from the local licensing authority under Mass. Gen. Laws ch. 140, § 183A.² The Mendon Board of Selectmen is the town's entertainment licensing authority. (Pl.'s Appx. at 22).³ On June 2, 2008, the town adopted regulations pursuant to this authority that address licensing under the statute as applied to adult entertainment. ( Id. at 18–42). Under these regulations, “[i]t is unlawful for any person to ... operate an adult entertainment premises ... within the Town of Mendon without a license from the Board of Selectmen to do so ....” ( Id. at 25). Upon application for such a license, “[t]he Board of Selectmen ... shall grant a license ... unless they find that the license ... would adversely affect the public health, safety [,] or order, in that [the dancing] cannot be conducted in a manner so as to [prevent crime, safety hazards, unreasonable noise, and unreasonable traffic impacts].” ( Id. at 30).

At some point either before or soon after the town adopted its by-law and regulations related to adult entertainment, plaintiff Showtime Entertainment LLC acquired the lot at 49 Milford Street, a parcel that lies within the town's adult entertainment overlay district. (Compl. & Answer ¶ 2; Pl.'s Appx. at 1).⁴ On August 4, 2008, it filed its first application for an adult entertainment license to allow it to present nude dancing at an establishment it planned to build at the site. (Compl. & Answer ¶ 13). The Board denied the application on October 1, 2008. ( Id.).

Six days later, on October 7, 2008, the town held a special town meeting at which it adopted amendments to its zoning by-laws relating to adult entertainment establishments and to its liquor-licensing authority under Mass. Gen. Laws ch. 138, §§ 12 and 14. (Compl. Ex. C). The Massachusetts Attorney General reviewed the amendments and issued an opinion letter on the matter on January 20, 2009.⁵ ( Id.). The letter approved the amendments to the zoning bylaw. ( Id.). It disapproved one of the amendments to the liquor licensing by-law, but approved the others on the basis that their statutory and constitutional validity was at least “fairly debatable.” ( Id.).⁶

Showtime submitted another application for an adult entertainment license to the Board of Selectmen on February 26, 2010. (Compl. & Answer ¶ 19). Like the first application, the renewed application sought a license to operate a restaurant or club that would feature live nude dancing at the 49 Milford Street property. (Pl.'s Appx. at 5). The application included a list of proposed license conditions, an architectural plan depicting the premises in their existing condition, a site plan with the proposed building, and a rendering and plan for the proposed building. (Pl.'s Appx. at 5).

The Board conducted a hearing concerning the application on April 5, 2010. ( Id.). At the hearing, Showtime stated that it would not apply for a liquor license. ( Id. at 7). It also presented a traffic study indicating that the proposed nightclub would not cause traffic problems in the area. ( Id. at 6). An organization of Mendon residents, Speak Out Mendon, opposed the application and submitted evidence that increased criminal activity would be a likely secondary effect of an adult nightclub at the site. ( Id.). ⁷

The Board of Selectmen granted Showtime's application in a decision issued on May 3, 2010. ( Id. at 8, 16). The Board, however, found that the proposed nightclub could increase the risk of crime in the town and that...