1st Circuit Panel Blasts Town's Restrictions on Local Strip Club

MENDON, MA—All attorneys who serve the adult entertainment industry are well-familiar with the concept of the "zone-out"; that is, a municipality enacting laws, rules and ordinances that have the effect of preventing adult-oriented businesses from either opening in that municipality, or of forcing such existing businesses to go out of business. The excuse for the zone-out is usually not that the business itself is being run improperly, but rather the claim that the business creates "secondary effects" such as public drunkeness, lowered real estate values in the area, increased prostitution or myriad other "reasons" why the business shouldn't be there—as opposed to the real reason, which is that many politicians and civic leaders just find anything having to do with sex to be icky. So it's refreshing when a federal appeals court calls a municipality's bluff, and the case of Showtime Entertainment v. Town of Mendon is emblematic of the lengths to which a town will go to make sure no one within its borders can watch naked women dance. "The Town of Mendon, Massachusetts ("Mendon") has set forth a veritable maze of zoning restrictions that are singularly applicable to adult-entertainment businesses," declared Circuit Judge Juan R. Torruella in the opening paragraph of the three-judge panel's opinion. "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." Limiting the parcels where adult entrepreneurs can set up their businesses is par for the course in just about every municipality in the country, and Mendon did just that back in May of 2008, but then, after a town meeting in September of that year, Mendon denied Showtime's application for a business license, claiming "potential negative health and safety effects of increased traffic, noise pollution, and criminal activity," and then, later in the month, after a "special meeting" concerning a petition for additional bylaw changes, the town passed "additional zoning restrictions requiring that all adult 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." "No other business in Mendon, including any operating within the Adult-Entertainment Overlay District, is subject to the same zoning restrictions," the panel noted. The icing on the cake, however, was the simultaneous enactment of yet another bylaw 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," about which the panel also noted, "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.'" [Citations omitted here and below.] Sadly, Mendon's restrictions were rubber-stamped by Massachusetts Attorney General Martha Coakley (currently the Democratic candidate for governor) in January of 2009, who stated in a letter that the new laws were "not clearly in conflict with any statute or constitutional provision," though she noted that her approval "does not and cannot include the kind of factual inquiry a court might make in resolving an 'as applied' constitutional challenge." Even so, Showtime reapplied for a business license, acceding to the town's square footage and height restrictions, agreeing not to open before 4:30 on a school day, and that it would not seek a liquor license, plus it commissioned a study which showed that the club would have a negligible effect on local traffic—and lo and behold, roughly a year and a half later, the town Board of Selectmen granted the license! Except... the Board added ten pages of further restrictions on the business, among which were that Showtime "place no parking signs along Route 16 [the street on which the club was located]; soundproof its facility; ensure that no materials or signage of a sexual nature be visible from outside or appear in facility windows; monitor its parking areas nightly; and hire an off-duty police officer to patrol the premises on Thursday, Friday, and Saturday nights." In other words, Showtime would essentially have to do its best to make sure no one knew the club was even there! It was these extra restrictions that led to Showtime filing suit, and after a district court judge found for Mendon on a summary judgment motion, Showtime appealed. After essentially sidestepping the issue of whether Showtime's challenge was facial or as-applied, and after deciding that Mendon's ordinances would be considered under "intemediate scrutiny" (though the panel decided to "withhold[] judgment as to the bylaws' true content neutrality"), the panel nonetheless stated that, "Mere reference to a neutral intent does not suffice to satisfy Mendon's burden to prove that its bylaws in fact further a substantial governmental interest unrelated to the content of the speech," in large part because the laws reference only the alleged secondary effects of adult businesses even though "such secondary effects flow in equal measure from other businesses, which nonetheless are left untouched by the regulation in question." The panel therefore concluded that "it stands to reason that such underinclusiveness raises questions as to whether the proffered interest is truly forwarded by the regulation, or is in fact substantial enough to warrant such regulation," and further that, "we rightly pay attention to underinclusiveness where it reveals significant doubts that the government indeed has a substantial interest that is furthered by its proffered purpose." In other words, it was up to Mendon to prove that only the adult businesses caused the secondary effects, and they failed miserably to do so. The court therefore gave little credence to the claims (frequently described as being "underinclusive") that the intended dimensions of Showtime's club would impact the "rural aesthetics of Mendon as a small town," or that the mere existence of the club would create traffic congestion when school was in session. The panel also dissected some of the various "secondary effects studies" that Mendon relied upon (as have many, many other municipalities) to support its secondary effects claims, and found that the proffered studies "are largely anecdotal, rely nearly exclusively on personal perceptions rather than verifiable data, and include significant hedging language, such as indicating that increased traffic is merely a hypothesis. In several cases, they also make apparent that the true, primary concern is not traffic, but the type of patrons thought to visit adult-entertainment businesses. Also of note is that the studies wholly fail to suggest that patronage at an adult-entertainment business would have any distinct effect when located in already commercialized zones, such as the Adult-Entertainment Overlay District." [Emphasis in original] Of particular risibility is this paragraph from the panel's decision: We note before closing that Mendon does make a limited attempt to argue that adult-entertainment businesses attract a higher percentage of out-of-town patrons, less concerned with Mendon's quality of life, than other types of commercial activity, resulting in traffic effects unique from that of other businesses. Even if the residency of a driver had some cognizable effect on traffic flow, we find it beyond improbable that Mendon could substantiate any such distinction here, in light of the fact that Route 16 is a state highway running East-West through much of Massachusetts. By way of hypothetical, we can only presume that a large, roadside restaurant offering an early-bird dinner special to patrons as they travel through Mendon along Route 16 headed East towards Boston would likely create the exact same amount of out-of- town traffic at 4:00 p.m., half an hour before any adult- entertainment business is allowed to operate, as Showtime's preferred building, yet would not find its size or operating hours curtailed in any way." The final section of the opinion deals with Mendon's ban on serving liquor at Showtime's establishment, and while Showtime argued that its right to do so was clear under the Massachusetts Constitution's Article 16, which states, "The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth. The right of free speech shall not be abridged," the panel felt that "the claim rests solely on issues of state constitutional law, implicates a fundamental right of Massachusetts citizens, and may have far-reaching impact on municipalities throughout Massachusetts in their construction of local ordinances," and therefore certified the liquor license question to the state's Supreme Judicial Court. The full First Circuit panel opinion can be found here. Pictured: Mendon Airport in the days before adult.