Town of West Greenwich v. Stepping Stone Enterprises, Ltd., 76-121-A

• Decision Date: 01 August 1979
• Docket Number: No. 76-121-A,76-121-A
• Citation: 122 R.I. 132,416 A.2d 659
• Parties: TOWN OF WEST GREENWICH et al., v. STEPPING STONE ENTERPRISES, LTD., et al. ppeal.
• Court: Rhode Island Supreme Court

Page 659

416 A.2d 659

122 R.I. 132

TOWN OF WEST GREENWICH et al., v. STEPPING STONE ENTERPRISES, LTD., et al.

No. 76-121-Appeal.

Supreme Court of Rhode Island.

Aug. 1, 1979.

[122 R.I. 142] V. James Santaniello, Providence, for plaintiffs.

Aram K. Berberian, Cranston, for defendants.

OPINION

BEVILACQUA, Chief Justice.

The defendant, Stepping Stone Enterprises, Ltd. (Stepping Stone), ¹ appeals from a Superior Court judgment enjoining it, inter alia, from holding public entertainment in West Greenwich, Rhode Island, without first obtaining a license pursuant to G. L. 1956, §§ 5-22-1, -2, -4 (the statute) ² and the July 12, 1972 ordinance of the town of West Greenwich (the ordinance). ³

Stepping Stone had attempted to obtain licenses for concerts scheduled to be held on July 18, 24, 25, 26 and 27, 1975; and August 2 and 9, 1975. These applications were unanimously denied by the West Greenwich Town Council (the town council) on July 9, 1975. This denial followed extensive testimony concerning the Blue Grass Festival, which was sponsored previously by Stepping Stone over the July 4, 1975 weekend. During this concert, nearby residents suffered constant personal abuse, threats, noise, extreme physical exhaustion, invasion of and damage to their property (including thievery and fires), traffic tie-ups and general filth. These problems were compounded by the lack of police staff and equipment. Because Stepping Stone had failed to prove that it could provide adequate health and safety facilities to safeguard against repetition of these incidents, the town council refused to issue the requested licenses.

As a result of its inability to obtain the license permits, Stepping Stone filed a complaint in Federal District Court for the District of Rhode Island. The complaint stated that Stepping Stone intended to exercise its federal constitutional rights to freedom of speech and expression and its right under 42 U.S.C. § 1983 to engage in a lawful occupation by providing musical entertainment without the necessary license permits. In that regard, Stepping Stone requested the Federal District Court to enjoin the town council and the acting Chief of Police from criminally prosecuting it for violating the statute and the ordinance. The district court declined to provide injunctive relief.

Stepping Stone had additionally asked the district court to convene a three-judge court to declare unconstitutional the statutory prohibition against performing or promoting musical concerts in Rhode Island without a license and the town ordinance pursuant to which the members of the town council had arbitrarily denied issuance of these permits. The district court denied the request to convene the three-judge court under the rule that a three-judge court need not be convened if no substantial constitutional question is raised. See Stepping Stone Enterprises, Ltd. v. Andrews, Civ. No. 75-0218 (D. R.I., filed October 16, 1975); Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36, 42 (1973). The Court of Appeals for the First Circuit affirmed the district court's decision. See Stepping Stone Enterprises, Ltd. v. Andrews, 531 F.2d 1, 3 (1st Cir. 1976).

Because Stepping Stone had stated that it would proceed to hold live entertainment on its property notwithstanding the denial of the license permits, the town of West Greenwich (the town) and Theodore Briggs, a resident, filed the instant complaint in the Superior Court for Kent County on July 16, 1975, seeking both temporary relief and preliminary and permanent injunctions prohibiting Stepping Stone from holding public entertainment on those dates for which licenses had been previously denied by the town council. A temporary restraining order was granted that same day. On August 12, 1975, an order was entered in the Superior Court granting the town's motion to consolidate the preliminary hearing with the hearing on the merits. Later, Stepping Stone filed a third-party claim in the Superior Court against Robert J. Andrews, acting Chief of Police of West Greenwich, and the individual members of the town council and requested inter alia that the third-party defendants be enjoined from criminally prosecuting Stepping Stone for proceeding without a license permit and that the court declare unconstitutional the statutory power of the town council to deny arbitrarily the issuance of the license permits absent the legality of the performance.

After a nonjury trial, the lower court granted the town and Theodore Briggs permanent injunctive relief, noting that Stepping Stone had reiterated in open court its intention to provide musical entertainment without the required license permits. The trial court observed that the ordinance requiring a license for the showing of live entertainment is premised upon federal, state and local laws that regulate the health, safety and welfare of the public. Grounding its decision on evidence elicited at the town meeting that sanitation, traffic control, zoning, parking and fire protection had been undermined at the Blue Grass Festival and possibly would otherwise be jeopardized at future concerts, the trial court granted injunctive relief to safeguard the community from what it considered to be the immediate and irreparable harm that would ensue if Stepping Stone were not enjoined from fulfilling its threat to proceed with the concerts without first obtaining the license permits.

Stepping Stone now appears before this court arguing (1) that the statute and the ordinance violate its first-amendment rights to free speech and expression as applied to the states via the fourteenth amendment, (2) that the town of West Greenwich lacks standing to enjoin or prohibit an alleged nuisance, (3) that a court of equity lacks the power to enjoin a violation of the criminal law, and (4) that a private party may not obtain a Superior Court injunction to abate a nuisance absent evidence of irreparable harm.

I

We need not address Stepping Stone's first contention because it has been answered by the First Circuit Court of Appeals in Stepping Stone Enterprises, Ltd. v. Andrews, supra. Both the parties and the issue before the federal court are substantially similar to those presently before us. Moreover, the facts of both cases are identical. Before the first circuit court, Stepping Stone alleged that the statute and ordinance unconstitutionally violate its rights to free speech and expression. The First Circuit Court of Appeals held that the attack on the statute and ordinance was insubstantial in light of the United States Supreme Court precedent upholding the power of states and towns to delineate standards for the protection of the health and safety of their citizens. We agree with the analysis of the first circuit court and refer Stepping Stone to that decision.

II

Stepping Stone next alleges that a municipal corporation has no standing to enjoin or prohibit activities constituting a nuisance. Pursuant to legislative grant, ⁴ the General Assembly has given town and city councils the police power to promulgate regulations and ordinances to protect the safety of their inhabitants. J. M. Mills, Inc. v. Murphy, 116 R.I. 54, 66, 352 A.2d 661, 667 (1976); Atlantic Tubing & Rubber Co. v. City Council, 105 R.I. 584, 587, 254 A.2d 92, 94 (1969); see Palombo v. Housing Board of Review, 92 R.I. 421, 424, 169 A.2d 613, 615 (1961). The power of a municipality to enforce its ordinances and regulations is also of statutory derivation. See State v. Krzak, 97 R.I. 156, 160, 196 A.2d 417, 420 (1964). In G. L. 1956 (1970 Reenactment) § 45-6-2, ⁵ as amended by P. L. 1971, ch 224, § 1, the General Assembly gave municipalities the power to impose penalties for the violation of its ordinances and regulations. Although the power to enjoin a violation of an ordinance is not specifically enumerated in § 45-6-2, we hold that when the violation of an ordinance also constitutes a nuisance, a municipality may seek an injunction in equity. We thus subscribe to the view stated by the court in Harvey v. Prall, 250 Iowa 1111, 97 N.W.2d 306 (1959), which upheld the power of municipalities to enjoin nuisances:

"Where the violation of an ordinance constitutes a nuisance and equitable grounds exist equity may grant relief therefrom, not because the act is a violation of the ordinance, but because it is a nuisance." Id. at 1119-20, 97 N.W.2d at 311.

See also Village of Riverwoods v. Untermyer, 54 Ill.App.3d 816, 822, 12 Ill.Dec. 371, 369 N.E.2d 1385, 1390 (1977); City of Saginaw v. Budd, 381 Mich. 173, 178, 160 N.W.2d 906, 908 (1968); Zylka v. City of Crystal, 283 Minn. 192, 194-95, 167 N.W.2d 45, 48 (1969); Village of Wind Point v. Halverson, 38 Wis.2d 1, 11, 155 N.W.2d 654, 659 (1968). Without the right to enjoin a nuisance, the police power of a municipality to protect the health, safety and welfare of its inhabitants would be merely illusory.

III

Stepping Stone's third argument is that courts of equity have no power to enjoin a violation of the criminal law because a fine or imprisonment imposed for violation of that law is an adequate remedy. It is well established that equity courts lack criminal jurisdiction and that equity will not enjoin acts merely because they are punishable as crimes. Berberian v. Avery, 99 R.I. 77, 83, 205 A.2d 579, 582 (1964). Nevertheless, because the same act may violate both the criminal law and an equitable obligation toward another, this court has enunciated an exception to this general rule. In such situations a party may seek an injunction against criminal activity if independent grounds exist that justify equitable relief. See Rhode Island Bar Association v. Automobile Service Association, 55 R.I 122, 128, 179 A. 139, 141 (1935). The facts of this case fall within this exception. If Stepping Stone were to hold the proposed...