Creating Thriving Communities Through Land Use And Real Estate Law

Town’s Ban on Alcohol at Adult Entertainment Venues Fails Judicial Review

Where a town bylaw would prevent the sale of alcohol at a showing of the musical Hair or the play Equus at a theater located in an adult entertainment overlay district, the bylaw is impermissibly overbroad and cannot stand, the Supreme Judicial Court said today in response to two questions certified to it from the First Circuit Court of Appeals in Showtime Entertainment, LLC v. Town of Mendon.

Showtime Entertainment sought a license to operate an adult entertainment business featuring live nude dancing which would serve alcohol in the Town of Mendon’s adult entertainment overlay district.  While it was seeking the license, a group of citizens organized as Speak Out Mendon, citing traffic concerns, petitioned the Board of Selectmen to enact further bylaws to regulate the district.  The Town did enact additional regulations, relying on studies submitted by the citizens’ group, stating that “the presence of alcohol is documented to exacerbate negative secondary crime effects at sexually oriented businesses.”  Showtime was granted a license, but with a restriction that it could not sell alcohol at its establishment.  Showtime sought a declaratory judgment in federal court as to the invalidity of the restriction.  The District Court decided the matter in the Town’s favor, after which Showtime appealed.  The First Circuit Court of Appeals decided to certify the following two questions to the SJC: In, the SJC was presented with two questions:

1.         Do the pre-enactment studies and other evidence considered by the town demonstrate a “countervailing State interest,” Cabaret Enters., Inc. v. Alcoholic Beverages Control Comm’n, 393 Mass. 13, 17 (1984), sufficient to justify the town’s ban on alcohol service at adult-entertainment businesses?

2.         If the ban is so justified, is it adequately tailored?

The Court determined that the State interest relied on by the Town was valid, as supported by the studies submitted by Speak Out Mendon.  After tracing the history of case law examining the intersection of free speech and alcohol regulation, both at the state and federal levels, the Court determined that the Town’s bylaw was not narrowly tailored, the critical test.  Because the bylaw “on its face bans the service of alcohol at any establishment that displays live nudity to its patrons and that is located within the adult entertainment overlay district,” “the sweep of that ban encompasses ‘works of unquestionable artistic and socially redeeming significance’ that might be displayed at an establishment serving alcohol in the overlay district but have not been shown to cause the disorderly conduct the town seeks to prevent.”  Therefore, the ban violates the Massachusetts Constitution.  The Court recommended that the Town “seek other, narrower means to pursue its goal of crime prevention.”

As demonstrated in this case, some land use regulations raise serious issues that go beyond those regularly seen in the practice of real estate and municipal law.  Whether looking at it from a municipal or property owner’s position, a careful analysis of all applicable regulations is always wise, as certain issues are likely to prompt objections and potential litigation, particularly where Constitutional rights are implicated.

The full decision is here.