Adult entertainment by-law stricken

By Henry Lane, Attorney
Lane and Hamer, Whitinsville, MA

In a case recently decided by the United States District Court sitting in Worcester, the Town of Mendon was ordered to pay an adult entertainment company $24,754.56 for legal fees it incurred in obtaining a determination that a zoning by-law regulating adult entertainment was unconstitutional.  Like many towns in recent decades, the Town of Mendon established an adult entertainment zone in an area set aside for commercial uses.  The Mendon by-laws required that an adult entertainment business obtain an entertainment license from the Board of Selectmen and also a special permit from the Zoning Board of Appeals.  The adult entertainment company applied for a license from the Board of Selectmen for an establishment that would provide live, nude dancing and the Selectmen issued the license.  Then, instead of applying for a special permit from the Zoning Board of Appeals, the applicant went straight to court.  In its court action, the company argued that the requirement for a special permit was a prior restraint on the applicant's right of free speech and therefore unconstitutional.     Although the Mendon zoning by-law carefully regulated and limited uses in the adult entertainment district it did not clearly delineate the standards that the Zoning Board of Appeals was required to apply in deciding on whether or not to issue a special permit. Without clear standards to guide the Zoning Board, the Court decided that the by-law left too much discretion to the Zoning Board and was therefore unconstitutional.

The adult entertainment company went on to challenge mandatory conditions for all adult entertainment establishments in Mendon.  The conditions prohibited establishments from operating before all school bus routes were completed, limited the size of buildings to 2,000 square feet and most importantly prohibited the serving of alcohol in such establishments.  Despite the fact that the conditions severely limited adult entertainment businesses, the Court ruled that the conditions were reasonably related to legitimate community interests in addressing traffic and public safety concerns in a small town.

In upholding the restrictions on adult entertainment establishments, especially the prohibition on sale of alcohol, the Court may have effectively prevented the nude dancing establishment from ever operating. However, since the adult entertainment company did win the "free speech" argument, it was entitled to recover its attorneys' fees on that portion of the case.

Many towns have adopted by-laws similar to the by-laws in the Town of Mendon and many suffer from the same infirmities.  For example, the Town of Webster also requires a special permit from the Zoning Board of Appeals for adult entertainment businesses, and also fails to set clear standards for evaluating applications.

The Mendon case has been appealed by the adult entertainment company, so it is possible that the final outcome will be less favorable to the Town of Mendon.  However, based on the rulings in the case so far, towns would be well advised to carefully review their adult entertainment by-laws and either eliminate the special permit requirement or set clear standards for evaluating applications.