Agenda - Planning Commission - 07/07/2005

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Page 6--June 25,2005 z.g. act quickly enough on his pending variance applications, and this excused his unlawful conduct. Although the court was sympathetic to Fernandez's "way- ward journey though the labyrinth" of zoning law, such frustration was not a defense when the county established a clear legal right to relief. see also: Keystone Creations Inc. v. City of Delray Beach; 890 $o.2d 1119 (2004). see also: P.M. Realty & [nvestment~ v. City of TamPa, 779 So. 2d 404 (2000). Adult Entertainment-- Ordinance bans all public nudity Bar owner claims it's unconstitutional Citation: Mendoza v. Licensing Board of Fall River, Supreme Judicial Court of Massachusetts, No. SJC-09354 (2005) MASSACHUSETTS (05/11/05) -- Mendoza operated a bar and entertainment venue in Fall River. He requested an adult entertainment license so he could provide nude dancing at his bar. However, a city ordinance banned nudity in ahy publiqPlace within the city. Mendoza sued, arguing the ordinance was too broad to be constitutional. The court ruled in his favor. The city appealed. DE CISION: Affirmed. The regulation unreaSonably limited alternative avenues of communi- cation. Notwithstanding any other mokivations, the city's stated intentions of curb- ing crime, including prostitution and rape, preserving property values, and minimizing dangers to public health, were substantial government interests. However, the ordinance completely prohibited a constitutionally protected form of expressive conduct within the cify limits. It not only unreasonably bruited alternative avenues of communication, but also eliminated ali avenues for Mendoza or any other citizen of the city to present nude danCing in the city. As such, the ordinance was tantamount to censorship of a protected inter- est. Such a complete ban was not narrowly tailored and was unconstitutional on that ground. The nudity of the dancer was an integral part of the emotions and thoughts that a nude dancing performance evoked. The sight of fully Clothed, or even partially clothed, dancers generally would have had a far different impact on a spectator than that of a nude dancer, even if the same dance was performed. Thus, the nudity itself was an expressive component of the dance. see also: City of Erie v. Pap's A.M., 529 U.S. 277, i20 S. Ct. 1382; 146 L. Ed. 2d 265 (2000). see also: Commonwealth v. Mawedakis, 725 N.£.2d 1_69 (2'000). © 2005 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048.