Showtime Entm't, LLC v. Town of Mendon
| Decision Date | 08 October 2014 |
| Docket Number | No. 12–2121.,12–2121. |
| Citation | 769 F.3d 61 |
| Parties | SHOWTIME ENTERTAINMENT, LLC, Plaintiff, Appellant, v. TOWN OF MENDON, et al., Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
OPINION TEXT STARTS HERE
Thomas Lesser, with whom Michael Aleo and Lesser, Newman & Nasser, LLP were on brief, for appellant.
Brandon H. Moss, with whom Robert S. Mangiaratti and Murphy, Hesse, Toomey & Lehane, LLP were on brief, for appellees.
Before TORRUELLA, HOWARD, and KAYATTA, Circuit Judges.
This case directs our attention to the extent by which a town may abridge expressive activity, protected under the First Amendment and the Massachusetts Constitution, as a valid exercise of its zoning power. The Town of Mendon, Massachusetts (“Mendon”) has set forth a veritable maze of zoning restrictions that are singularly applicable to adult-entertainment businesses. Owning one of the few parcels of land within Mendon city limits still available for the conduct of such business, Showtime Entertainment, LLC (“Showtime”), attempted to navigate these many restrictions. The result: Showtime received an adult-entertainment license but found its preferred building plans circumscribed in both size and height, its proposed operating hours curtailed, and its ability to receive a license to sell alcohol foreclosed.
Before the district court, Mendon cast these restrictions as appropriate measures by which it sought to control only the secondary effects uniquely related to the expressive activity-altered town aesthetics, heavy traffic flow, and increased crime. Showtime retorted that the restrictions infringed on its ability to present live nude dancing to a degree that violated the Federal Constitution and the Massachusetts Declaration of Rights.
Viewing Showtime's suit as a facial challenge to the bylaws, the district court entered summary judgment in favor of Mendon,concluding that the restrictions in question were sufficiently tailored towards controlling the secondary effects of speech. After careful consideration, we disagree that the bylaws regulating the size, height, and hours of operation support a substantial, content-neutral governmental interest. We find that these bylaws—which have no effect on other businesses of like size, height, or operating hours—unconstitutionally infringe on Showtime's right to engage in a protected expressive activity. We also find that the application of Article 16 of the Massachusetts constitution to the Mendon bylaw banning the sale and consumption of alcohol is a close issue of constitutional law and difficult for us to predict. Therefore, we certify questions related to this claim to the Massachusetts Supreme Judicial Court.
Because this appeal stems from a grant of summary judgment, we begin by setting forth the facts in the light most favorable to Showtime, the losing party below. Prescott v. Higgins, 538 F.3d 32, 38 (1st Cir.2008).
In May of 2008, at its annual town meeting, Mendon amended its zoning bylaws. Of relevance to this litigation was the addition of section 5.01, which created an Adult–Entertainment Overlay District, limiting the location of any adult-entertainment business—a category that includes adult bookstores, video stores, paraphernalia shops, and businesses showing live nude dancing—to four specific parcels of land within city limits. These contiguous parcels are located at 41, 43, 47, and 49 Milford Street, and they all border a state highway, Route 16. The text of section 5.01 included a preamble setting forth its purpose:
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.... 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, including sexually oriented matter or materials. Similarly, it is not the purpose or intent of this Section (Overlay District) 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....
Town of Mendon Zoning By–Laws, § 5.01(b).1
Adult-entertainment businesses seeking to operate in Mendon must also abide by licensing requirements defined in state law. SeeMass. Gen. Laws ch. 140, § 183A (); id. § 1 (). On June 2, 2008, acting pursuant to their authority as the town's licensing board, The Mendon Board of Selectmen adopted a set of regulationsregarding the eligibility standards for adult-entertainment licenses. These regulations, spanning eighteen pages, require that all adult-entertainment businesses ensure adequate lighting, signage, and noise reduction; hire security personnel; and prohibit touching or mingling between patrons and employees clothed in “less than opaque attire.” See Mendon Board of Selectmen, Town of Mendon Regulations Governing Adult–Entertainment Establishments Pursuant to M.G.L. Ch. 140 Sec. 183A (2008) (the “Adult–Entertainment Regulations”). None of those regulations are at issue in this case, and it is uncontested that Showtime is responsible for ensuring full compliance with these mandates in its operation of an adult-entertainment business.
On June 10, 2008, soon after the passage of these regulations, Showtime applied for a license to operate an adult-entertainment business (presenting live nude dancing) on a parcel of land within the Overlay District. Showtime's proposed building plan included an 8,935–square–foot “Adirondack style” structure with space to accommodate 244 patrons and 25 employees, to be accompanied by an 82–space parking lot.
At a September 15, 2008 town meeting, several residents spoke out against Showtime's pending proposal, citing their fear that the facility would exacerbate traffic concerns along Route 16. Also in early September 2008, Mendon citizens petitioned the Board of Selectmen to enact additional bylaws (1) restricting the maximum size and height allowances for buildings operating adult-entertainment businesses; (2) limiting the operating hours of such businesses; and (3) banning the sale or consumption of alcohol on their premises. The stated purposes for these additional bylaws, respectively, were to (1) protect Mendon's “historically rural atmosphere”; (2) support traffic safety; and (3) reduce crime associated with the combination of intoxication and adult entertainment.
The next month, Mendon issued decisions regarding both Showtime's license application and the citizen-proposed bylaws. First, on October 1, 2008, the Board of Selectmen denied Showtime's license request, citing concerns about the potential negative health and safety effects of increased traffic, noise pollution, and criminal activity. Then, on October 7, 2008, Mendon held a special meeting concerning the petition for additional bylaws restricting the operation of adult-entertainment businesses. At this meeting, the citizens' group Speak Out Mendon voiced their support of these proposed amendments as a means of curbing the perceived adverse effects of adult-entertainment businesses.
Mendon residents voted to approve the bylaws, enacting additional zoning restrictions requiring that all adult-entertainment businesses (1) have a facility no bigger than 2,000 square feet; (2) have a facility no taller than fourteen feet; and (3) open no earlier than 4:30 p.m. on days when school is in session. See Town of Mendon Zoning By–Laws, § 5.01(i)(i-ii),(iv). The written justifications for these restrictions were to maintain Mendon's “historically rural atmosphere,” to ensure traffic safety, and “to provide an opportunity for all elementary school buses to finish student bus routes.” Id. § 5.01(i)(i),(iv). No other business in Mendon, including any operating within the Adult–Entertainment Overlay District, is subject to the same zoning restrictions.
At the same time, Mendon's general bylaws were also amended, so as to forbid the granting of an alcohol sales license to any adult-entertainment business and to ban the consumption of alcohol by patrons within any adult-entertainment business. See Town of Mendon General By–Laws, ch. XXV. No other business in Mendon is subject to such a restriction on the licensing and consumption of alcohol, which applies only to “[adult-entertainment] establishments ... located within the layout lines of the Adult Entertainment Overlay District.” 2 The stated justification for this amendment was that “the presence of alcohol is documented to exacerbate secondary crime effects at sexually oriented businesses.” Id.
The Massachusetts Attorney General reviewed the proposed amendments and, on January 20, 2009, issued an opinion letter approving the zoning bylaws restricting size, height, and operating hours of adult-entertainment businesses in Mendon. The Attorney General also approved the prohibition of the sale and consumption of alcohol within adult-entertainment establishments based on the conclusion “that the validity of these sections is fairly debatable, and [ ] they are not clearly in conflict with any statute or constitutional provision.” See Letter from Attorney General Martha Coakley to Margaret Bonderenko, Town Clerk, January 20, 2009, at 2. This letter cautioned, however, that the Attorney General's approval process “does not and cannot include the kind of factual inquiry a court might make in resolving an ‘as applied’ constitutional...
To continue reading
Request your trial