City of Revere v. Aucella

338 N.E.2d 816, 369 Mass. 138
CourtMassachusetts Supreme Judicial Court
DecidedDecember 3, 1975
StatusPublished
Cited by40 cases

This text of 338 N.E.2d 816 (City of Revere v. Aucella) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Revere v. Aucella, 338 N.E.2d 816, 369 Mass. 138 (Mass. 1975).

Opinions

Braucher, J.

These cases test the constitutionality of G. L. c. 272, § 16, prohibiting “open and gross lewdness and lascivious behavior,” as applied to a nude “Go-Go” dancer in a bar. They also test the power of a city, by ordinance, to regulate such conduct. We hold that the statute is unconstitutional. P.B.I.C., Inc. v. Byrne, 313 F. Supp. 757 (D. Mass. 1970), vacated to consider mootness, 401 U.S. 987 (1971). The ordinance, however, [140]*140is within the powers granted to the city by the Home Rule Amendment, Mass. Const, amend, art. 89, § 6, and the Home Rule Procedures Act, G. L. c. 43B, § 13, and is not on its face inconsistent with our Constitution or laws. We decide no question as to the validity or application of the ordinance in any particular circumstances. Compare Boston Licensing Bd. v. Alcoholic Beverages Control Comm’n, 367 Mass. 788 (1975), with Norcisa v. Selectmen of Provincetown, 368 Mass. 161 (1975).

1. The cases. The city of Revere sued Charger Investments, Inc. (Charger), doing business as “The Squire,” and its manager in the Superior Court to enjoin them from violating Revere Revised Ordinances c. 13, art. 3 (1972) (the ordinance).3 A preliminary injunction was denied. Later Charger, a successor manager and one of [141]*141its entertainers sued the city and its chief of police in the Supreme Judicial Court for the county of Suffolk to enjoin them from enforcing the ordinance and G. L. c. 272, § 16. A single justice of this court issued a temporary restraining order and transferred the action to the Superior Court. The two actions were consolidated, and were submitted on statements of agreed facts. The judge made findings, rulings and an order for judgment, and judgments were entered dismissing the first action with prejudice, declaring the statute unconstitutional and the ordinance invalid, and enjoining their enforcement. The city and the chief of police appealed.

2. The facts. We summarize the agreed facts. Charger has an alcoholic beverage license under G. L. c. 138 and is licensed under G. L. c. 140, § 183A, to provide entertainment in its eating and drinking establishment, and since 1973 has conducted public shows and sold and served alcoholic beverages to be drunk on the licensed premises. The ordinance in question was passed by the city council and signed by the mayor in March, 1974, and was published in a newspaper in the city on April 3, 1974.

The conduct in issue consists of individual female dancers performing to the accompaniment of rock and roll music, both from phonograph records and from a live band. Each of the dancers, including one of the [142]*142plaintiffs in Charger’s action, removes her clothing while dancing, with the result that she is completely unclothed so as to expose to the view of the customer-consumer all or part of the areas of her body referred to in the ordinance. At no time do the entertainers perform together in proximity with each other. The patrons are charged no admission or cover charge, and are free to leave at any time during any performance without charge other than for the food or drink consumed. A sign located outside the premises bears the word “Entertainers” and the silhouette of a dancing girl.

Beginning in July, 1974, the city brought multiple prosecutions against Charger and its manager and assistant managers for violations of the ordinance, which resulted in convictions and appeals to the Superior Court. Additional prosecutions of its entertainers for violations of G. L. c. 272, § 16, were continued to dates in October, 1974. Further prosecution was enjoined September 17, 1974.

3. Lewdness. The judge ordered a declaration that “the wording of G. L. c. 272, § 16, reading ‘who is guilty of open and gross lewdness and lascivious behavior’ is unconstitutional,” and enjoined the arrest and prosecution of Charger and its coplaintiffs and employees for violation of that statute. With a minor modification we approve that part of the judgment on the ground stated by the judge, that the part of the statute applicable to this case is “too vague and overbroad for the purpose of imposing criminal liability.” Cf. Commonwealth v. Horton, 365 Mass. 164, 172 (1974), holding unconstitutional G. L. c. 272, § 28A, as to “obscene, indecent or impure” magazines; Commonwealth v. Capri Enterprises, Inc., 365 Mass. 179, 180 (1974), holding unconstitutional G. L. c. 272, § 32, as to a ‘lewd, obscene, indecent, immoral and impure” motion picture film; Commonwealth v. A Juvenile, 368 Mass. 580, 587 (1975), holding unconstitutional G. L. c. 272, § 53, as to “idle and disorderly persons,” when applied to speech or ex[143]*143pressive conduct. Section 16 was held unconstitutional as applied to a theatrical production in P.B.I.C., Inc. v. Byrne, 313 F. Supp. 757 (D. Mass. 1970), vacated to consider mootness, 401 U.S. 987 (1971). Like the judge, we do not pass on the application of the statute to the imposition of lewdness or nudity on an unsuspecting or unwilling person. Cf. Commonwealth v. Dickinson, 348 Mass. 767 (1964); Commonwealth v. Cummings, 273 Mass. 229, 231 (1930). We sanctioned an injunction against prosecution of entertainers under the same statute in P.B.I.C., Inc. v. District Attorney of Suffolk County, 357 Mass. 770 (1970). Cf. Doran v. Salem Inn, Inc., 422 U.S. 922, 932-933 (1975). Multiple prosecutions make it clear that Charger could not eliminate the threat to its constitutional rights by defending against a single criminal prosecution. Cf. Norcisa v. Selectmen of Prov-incetown, 368 Mass. 161, 171 (1975); Kenyon v. Chico-pee, 320 Mass. 528, 535 (1946); Byrne v. Karalexis, 401 U.S. 216, 220 (1971).

4. Validity of the ordinance. The judge found and ruled that the enactment of the ordinance was procedurally proper, but ordered that it be declared “invalid and null and void” on two grounds. First, the power to promulgate such regulations has been granted to the Alcoholic Beverages Control Commission; the field has thus been preempted, and cities and towns may not interfere. Second, the ordinance prescribes new terms and conditions on which licenses shall be revoked or denied; if any local agency has the power to make such regulations, it is the Revere licensing board and not the Revere city council.

We rejected the first ground in Boston Licensing Bd. v. Alcoholic Beverages Control Comm'n, 367 Mass. 788, 794-796 (1975). The second ground, however, requires an examination of the Home Rule Amendment, art. 89 of the Amendments to the Constitution of Massachusetts, and the respective statutory powers of the city council and the city licensing board. We begin with the Con[144]*144stitution, which authorizes the ordinance unless it exercises a power or function which is “inconsistent with the constitution or laws enacted by the general court” or is “denied, either expressly or by clear implication, to the city or town by its charter.”4 The same broad authority, with the quoted limitations, also appears in G. L. c. 43B, § 13 (as appearing in St. 1966, c. 734, § 1). Cf. G. L. c. 40, §§ 1, 21.

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Bluebook (online)
338 N.E.2d 816, 369 Mass. 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-revere-v-aucella-mass-1975.