Showtime Entm't LLC v. Ammendolia

• Decision Date: 09 August 2012
• Docket Number: Civil Action No. 10–40194–FDS.
• Citation: 885 F.Supp.2d 507
• Parties: SHOWTIME ENTERTAINMENT LLC, Plaintiff, 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 507

SHOWTIME ENTERTAINMENT LLC, Plaintiff,

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.

Aug. 9, 2012.

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

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

Brandon H. Moss, Murphy, Hesse, Toomey & Lehane, LLP, Quincy, MA, for Plaintiff/Defendants.

MEMORANDUM AND ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT

SAYLOR, District Judge.

This action arises from the efforts of plaintiff Showtime Entertainment LLC to open a club in Mendon, Massachusetts, that will feature live nude dancing. Adult-entertainment establishments in Mendon are required both to obtain a license under Mass. Gen. Laws ch. 140, § 183A and to comply with applicable zoning by-laws of the town. Showtime filed this lawsuit after the town's Board of Selectmen granted its second license application. It contends that four provisions of the town's by-laws are facially invalid because they impermissibly restrict expression that is protected by the First and Fourteenth Amendments of the Constitution and by Article 16 of the Massachusetts Declaration of Rights.

On March 22, 2012, 885 F.Supp.2d 479, 2012 WL 996805 (D.Mass.2012), this Court granted plaintiff's first motion for summary judgment, ruling that one aspect of the special-permit requirement for adult-entertainment establishments under the by-laws created an impermissible prior restraint on expression. Plaintiff has now filed three new motions for summary judgment in which it seeks rulings that the three remaining provisions of the by-laws that it challenges are invalid. Defendants have cross-moved for summary judgment on each of the counts raised in plaintiff's motions. Plaintiff has also moved for attorneys fees' as to its first summary-judgment motion.

For the following reasons, plaintiff's motions will be denied and defendant's cross-motion will be granted. Plaintiff will be awarded $24,754.56 in fees and costs incurred in relation to its first summary-judgment motion.

I. Background

In May 2008, the Town of Mendon adopted a set of zoning by-laws that established an adult-entertainment overlay district consisting of four lots on Milford Street (Route 16). (Pl.'s Facts # 2 ¶ 1).¹ For purposes of the new by-laws, an adult-entertainment establishment was defined as “an Adult Bookstore, an Adult Motion Picture Theater, an Adult Video Store, [or] an Establishment which displays live nudity for its patrons.” (Pl.'s Appx. # 2 at 1). The by-laws also set forth rules for the operation of such businesses within the district. (Pl.'s Facts # 2 ¶ 1).

Any bar or restaurant that seeks to present nude dancing in Mendon is also required by Massachusetts law to obtain an entertainment license from the Mendon Board of Selectmen, the town's local licensing authority. (Pl.'s Appx. # 2 at 4).² On June 2, 2008, the Board adopted regulations addressing licensing for adult-entertainment businesses in the town. ( Id. at 4–26). Under those regulations, license applications are reviewed for compliance with both Massachusetts law and applicable by-laws of the town. ( Id. at 12).

Defendant Showtime Entertainment LLC is a Massachusetts limited liability company that owns 49 Milford Street, a parcel that lies within the adult-entertainment overlay district. On June 8, 2008, Showtime applied for a license to present nude dancing at a club that it proposed to build on the Milford Street lot. ( Id. at 27–31). Its application indicated that the building would have an area of 8,935 square feet, with 244 seats and 82 parking spaces. ( Id. at 34–35). A public hearing on Showtime's application was held on September 15, 2008, at which representatives of the company presented details of their proposed establishment and several town residents testified to potential traffic concerns in the area. (Pl.'s Facts # 2 ¶ 1). On October 1, the Board denied Showtime's application, finding that the proposedadult-entertainment business would adversely affect the public health, safety, and order because it could not be operated so as to prevent an increase in criminal activity, noise pollution, and traffic. (Pl.'s Appx. # 2 at 39–41). ³

On October 7, in response to a petition by Mendon residents to amend the town's by-laws as they relate to adult-entertainment establishments, the town held a special town meeting. ( Id. at 39–41, 52). The amendment proposed to change both the town's zoning by-laws and its general by-laws to impose various restrictions on the operation of adult-entertainment establishments. ( Id. at 52–54). Article I of the amendment would add a section to the zoning by-laws providing that adult-entertainment establishments may not exceed 2,000 square feet in area and 14 feet in height, and prohibiting adult-entertainment establishments from opening for business before 4:30 p.m. on days when school is in session. ( Id. at 52–53, 238).⁴ Article II proposed to create a section in the town's general by-laws banning the sale or consumption of alcohol in adult-entertainment establishments. ( Id. at 53–54; Pl.'s Appx. # 4 at 112).⁵

At the October 7 meeting, members of a citizens' group, Speak Out Mendon, spoke out in support of the proposed amendment, citing the adverse effects of adult-entertainment businesses on property values, crime rates, and quality of life. (Def.'s Ex. A at 121, 124–28). Those present at the meeting voted to approve both articles of the proposal. (Pl.'s Appx. # 2 at 52–55).

The Massachusetts Attorney General subsequently reviewed the amendment and issued an opinion letter on the matter on January 20, 2009. ( Id. at 67–70). ⁶ The letter approved Article I in its entirety. ( Id. at 67). It disapproved and deleted one section of Article II that prohibited the location of any adult-entertainment establishment within 750 feet of a business licensed to sell alcohol. ( Id. at 68). However, the four other sections, which prohibited the consumption and sale of alcohol within adult-entertainment establishments, were approved based on a finding that their statutory and constitutional validity was at least “fairly debatable.” ( Id.).

Showtime subsequently renewed its application for a license to present nude dancing. (Pl.'s Appx. # 2 at 157–58). A hearing on the application was held on April 5, 2010. ( Id.). At that hearing, Showtime presented the findings of a traffic impact and access study it had commissioned from Greenman–Pedersen, Inc. ( Id. at 158). The study concluded that “[p]eak-hour traffic volume increases as a result of the development are expected to have negligible impacts on Milford Street....” ( Id. at 93). During the April 5 hearing, the study was criticized by town residents because it was based on an assumption that the proposed establishment would be 6,800 square feet in area and because it failed to account for traffic from a nearby drive-in theater. ( Id. at 158–59).⁷

On May 3, 2010, the Board granted Showtime's application to present nude dancing at the Milford Street site, subject to all applicable by-laws and regulations of the town, as well as various other conditions. ( Id. at 160–68). Thus, Showtime's license is conditioned on its compliance with the size and hours restrictions provided in Mendon's zoning by-laws and with the alcohol restriction in the general by-laws. ( Id. at 162). Showtime asserts that but for those by-laws, it would re-apply for a license to operate a larger establishment at which alcohol would be served.

Showtime commenced this lawsuit on October 5, 2010. The complaint alleges that the following elements of the town's by-laws are invalid under the First Amendment of the Constitution and Article 16 of the Massachusetts Declaration of Rights: (1) a requirement that adult-entertainment establishments obtain a special permit from the town zoning board (Counts 1 and 2), (2) the size restrictions limiting such businesses to buildings less than 2,000 square feet in area and 14 feet in height (Counts 3 and 4), (3) the hours restriction prohibiting such businesses from operating before 4:30 p.m. on days when school is in session (Counts 5 and 6), and (4) the alcohol restriction prohibiting such businesses from allowing alcohol to be served or consumed on their premises (Count 7). The complaint also alleges that each of the by-law provisions violates Showtime's rights under the Massachusetts Civil Rights Act (“MCRA”), Mass. Gen. Laws ch. 12, § 11I.

On March 22, 2012, this Court granted summary judgment in favor of Showtime as to Counts 1 and 2, ruling that the special-permit requirement was an impermissible prior restraint on expression because it gave the zoning board excessive discretion in deciding whether to issue a permit. However, because the Court found that the permit requirement was severable, the other restrictions in the zoning by-laws that Showtime challenges were unaffected by that decision.

In its second, third, and fourth motions for summary judgment, Showtime now seeks a ruling in its favor as to the remaining counts of the complaint. The town has cross-moved for a ruling that the by-laws do not unduly infringe Showtime's rights. Finally, Showtime has moved for an award of attorneys' fees and costs related to its first summary-judgment motion.

II. Summary Judgment MotionsA. Standard of Review

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Essentially, Rule 56[ ] mandates the entry of summary judgment ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which...