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SJC-11770

   SHOWTIME ENTERTAINMENT, LLC    vs.   TOWN OF MENDON & others.1



            Suffolk.     March 5, 2015. - July 8, 2015.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Alcoholic Liquors, Entertainment. Constitutional Law, Alcoholic
     beverages, Public entertainment, Freedom of speech and
     press. Municipal Corporations, By-laws and ordinances.
     Zoning, Validity of by-law or ordinance.



     Certification of questions of law to the Supreme Judicial
Court by the United States Court of Appeals for the First
Circuit.


     Thomas Lesser (Michael Aleo with him) for the plaintiff.
     Robert S. Mangiaratti (Brandon H. Moss with him) for the
defendants.


    SPINA, J.    We consider in the present case a challenge

brought against a bylaw adopted by the town of Mendon (town)

prohibiting the sale or presence of alcohol at adult

entertainment establishments.    Showtime Entertainment, LLC


    1
        Mike Ammendolia and Lawney Tinio.
                                                                    2


(Showtime), seeks to operate such an establishment within the

town and to serve alcohol on the premises.   It brought suit in

Federal court seeking to invalidate the bylaw.   The United

States Court of Appeals for the First Circuit has certified the

following questions to this court, pursuant to S.J.C. Rule 1:03,

as appearing in 382 Mass. 700 (1981)2:

          "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?"

See Showtime Entertainment, LLC v. Mendon, 769 F.3d 61, 82-83

(2014) (Showtime).

     The certified questions presented to us by the Court of

Appeals focus on two parts of the test employed to determine the

constitutionality of "content-neutral" restrictions on

expressive behavior as first outlined in United States v.

O'Brien, 391 U.S. 367, 377 (1968).   See Commonwealth v. Ora, 451

Mass. 125, 129 (2008).   The four factors of the test are:    (1)

     2
       Supreme Judicial Court Rule 1:03, as appearing in 382
Mass. 700 (1981), provides: "This court may answer questions of
law certified to it by . . . a Court of Appeals of the United
States . . . when requested by the certifying court if there are
involved in any proceeding before it questions of law of this
State which may be determinative of the cause then pending in
the certifying court and as to which it appears to the
certifying court there is no controlling precedent in the
decisions of this court."
                                                                    3


the regulation must be within the power of the government to

enact; (2) the regulation must further an important or

substantial governmental interest; (3) the government interest

must be unrelated to the suppression of free expression; and (4)

the restriction must be no greater than is essential to the

furtherance of the government interest.     O'Brien, supra.   We

answer the first question in the affirmative.    We answer the

second question in the negative.

    1.     Background and procedure.   We summarize certain

undisputed facts set forth by the First Circuit, see Showtime,

769 F.3d at 66-69, and in the record before us.     In May, 2008,

at its annual town meeting, the town created an adult

entertainment overlay district pursuant to G. L. c. 40A, § 9,

within which an adult entertainment business is allowed to

operate.   After the creation of this district on June 10, 2008,

Showtime applied for a license to operate an adult entertainment

business featuring live nude dancing.     A hearing on Showtime's

application was scheduled for September 15, 2008.

    In the meantime, a group of residents citing traffic

concerns petitioned the board of selectmen to enact and amend

bylaws further regulating adult entertainment businesses in the

town.    These proposed bylaws sought to regulate the physical

structure of a business, to control the operating hours, to

forbid the presence or sale of alcohol on the premises of any
                                                                  4


adult entertainment business, and to forbid any adult

entertainment at an establishment currently licensed to serve

alcohol.   The citizen group, Speak Out Mendon, gave a

presentation to a special town meeting on October 7, 2008,

called to consider the proposed bylaws.   In the presentation,

the group highlighted two studies that concluded that the

presence of alcohol in physical proximity to sex-oriented

businesses increase the incidence of crime.3   Showtime's

application was denied on October 1, 2008.

     The town enacted and amended the bylaws as proposed by the

citizen group.   The text of the bylaw restricting the service of




     3
       The group cited two studies that specifically referenced
crime and adult entertainment businesses in its presentation.
The first was a 1991 study that analyzed the effect on adult
businesses, an undefined term, on crime rates over a period of
ten years in the city of Garden Grove, California. See McCleary
& Meeker, Final Report to the City of Garden Grove: The
Relationship Between Crime and Adult Business Operations on
Garden Grove Boulevard, October 23, 1991. The other study
analyzed the effects of sexually oriented businesses in Los
Angeles, California. McCleary, Crime-Related Secondary Effects
of Sexually Oriented Businesses: Report to the City Attorney,
May 6, 2007. The presentation also referenced another study
that included crime as a secondary effect of sexually oriented
businesses, but the presentation did not cite the study for this
point. Hecht, Report to the American Center for Law and Justice
on the Secondary Impacts of Sex Oriented Businesses,
ERG/Environmental Research Group, March 31, 1996. Only the 1991
Garden Grove report explicitly concluded that the presence of
alcohol in physical proximity to adult businesses heightened
crime rates.
                                                                  5


alcohol is set forth in the margin.4   The Attorney General issued

an opinion approving the new bylaws but noted their


     4
       "CHAPTER XXV[:]   ADULT ENTERTAINMENT ESTABLISHMENTS AND
LIQUOR LICENSES

          "The following provisions apply to all Adult
     Entertainment or Use establishments consisting of an 'adult
     bookstore', 'adult motion picture theater', 'adult
     paraphernalia store', 'adult video store', and an
     'establishment which displays live nudity for its patrons'
     as defined by [G. L. c. 40A, § 9A,] located within the
     layout lines of the Adult Entertainment Overlay District
     created by the voters of the Town of Mendon on May 2nd,
     2008 as set forth in the Mendon Zoning Bylaws:

          "1. The Town of Mendon shall not grant any license
     for the sale of alcohol for consumption in accordance with
     the provisions of [G. L. c. 138, § 12,] to any Adult
     Entertainment or Use establishment, as defined by [G. L.
     c. 40A, § 9A,] as the presence of alcohol is documented to
     exacerbate negative secondary crime effects at sexually-
     oriented businesses.

          "2. The Town of Mendon shall not grant any special
     licenses for the sale of alcohol for consumption in
     accordance with [G. L. c. 138, § 14,] to any establishment
     as defined as an Adult Entertainment or Use per [G. L.
     c. 40A, § 9A,] as the presence of alcohol is documented to
     exacerbate negative secondary crime effects at sexually-
     oriented businesses.

          "3. The Town of Mendon shall not allow patrons of
     Adult Entertainment or Use establishments to consume
     alcoholic beverages within any Adult Entertainment or Use
     establishment, even if such beverages are brought to the
     premises by the patrons as a presence of alcohol is
     documented to exacerbate negative secondary crime effects
     at sexually-oriented businesses.

          "4. In the event that an establishment already in
     possession of a license in accordance with [G. L. c. 138,
     § 12 or 14,] applies for a license to operate an Adult
     Entertainment or Use, such establishment shall only be
     granted a license to coincide with the expiration of its
                                                                     6


susceptibility to a constitutional challenge.     Showtime

submitted a new application to operate an adult entertainment

business that addressed the new bylaws.

    The town approved the application on May 3, 2010.        Showtime

then filed suit in Federal District Court seeking a declaratory

judgment that the restrictions placed on the license are

unconstitutional limitations on expressive activity that is

constitutionally protected.     On cross motions for summary

judgment, the Federal District Court judge found in favor of the

town.    Showtime appealed to the United States Court of Appeals

for the First Circuit.    The Court of Appeals determined that the

limitations on the physical plant and operating hours were

unconstitutional but that the outcome of the challenge to the

bylaw regulating the sale of alcohol centered on unresolved

questions of Massachusetts constitutional law better suited for

determination by this court.     See Showtime, 769 F.3d. at 74-75,

78-83.    We now consider the questions presented.

    2.     Level of scrutiny.   We need not engage in an extended

discussion of the parties' first point of disagreement regarding

the appropriate level of scrutiny.     We accept the approach taken

by the Court of Appeals.    In answering the questions presented

we analyze the restrictions using intermediate scrutiny as if



    [G. L. c. 138, § 12 or 14,] license(s) and this license
    will not be renewed."
                                                                      7


the bylaws are content neutral.    See Showtime, 769 F.3d at 71.

As we will explain, we conclude that the bylaws do not survive

intermediate scrutiny.

    3.     Countervailing State interest.   In California v. LaRue,

409 U.S. 109, 118-119 (1972), the United States Supreme Court

held that the right to freedom of expression at the heart of the

First Amendment to the United States Constitution did not extend

to protect the existence of nude dancing in an establishment

licensed by the State to serve alcohol.     At issue were

regulations prohibiting the service of liquor in an

establishment that featured nude dancing.     Id. at 111-112.   In

considering the question of the State's power to revoke the

license, the Court started from the premise that the First

Amendment protected expression and that nude dancing may be

considered a form of expression.    Id. at 116-117.   The Court's

analysis then considered the effect of the Twenty-first

Amendment to the United States Constitution on the right to

freedom of expression.    Id. at 118-119.   The Twenty-first

Amendment returned to the States the ability to regulate

alcohol.   Id. at 114.   This absolute grant of power meant that

at times the First Amendment right to freedom of expression in

the form of conduct could come into conflict with the State's

power to regulate alcohol.    Id. at 118.   The Court reasoned that

as this conduct moved toward the "commission of public acts that
                                                                     8


may themselves violate valid penal statutes, the scope of

permissible [S]tate regulations significantly increases."     Id.

at 117.    As the State was not restricting the conduct across the

board but rather only in locations licensed to serve alcohol by

the glass and the Twenty-first Amendment expressly gave the

States the power to regulate the supply of alcohol, the State

could ban nude dancing in a licensed establishment because the

Amendment gave an added presumption in favor of the validity of

State regulation in this area.    Id. at 118-119.

    The Supreme Court would later disavow the reasoning in

LaRue.    In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,

515-516 (1996), the Court reconsidered the interplay of the

First and Twenty-first Amendments.    It concluded that the State

clearly had the inherent police power to control "bacchanalian

revelries" and it was thus unnecessary to seek the source of

this power in the existence of the Twenty-first Amendment.     Id.

    Our jurisprudence regarding nude dancing and licensed

establishments developed in the interval between LaRue and 44

Liquormart, Inc.   In Commonwealth v. Sees, 374 Mass. 532, 537

(1978), we acknowledged that a city ordinance prohibiting nude

dancing in an establishment licensed to sell alcoholic beverages

would not run afoul of the First Amendment following LaRue.       Yet

we did not reach the same conclusion when asked if the free

speech provision of art. 16 of the Massachusetts Declaration of
                                                                         9


Rights allowed the same prohibition.        Id.   Instead, we differed

from the Supreme Court in LaRue because "no provision of our

Constitution gives a preferred position to regulation of

alcoholic beverages."       Id.   Accordingly, we said that "the

artistic preferences and prurient interests of the vulgar are

entitled to no less protection than those of the exquisite and

sensitive esthete."     Id.

    Our cases following Sees continued to recognize that "the

Federal rule does not adequately protect the rights of the

citizens of Massachusetts under art. 16," Mendoza v. Licensing

Bd. of Fall River, 444 Mass. 188, 201 (2005), despite the fact

that "analysis under art. 16 is generally the same as under the

First Amendment."     Id.   Our statements were not intended to

undermine attempts of communities to regulate the "explosive

combination" of nude dancing and liquor.          Blue Canary Corp. v.

Milwaukee, 251 F.3d 1121, 1124 (7th Cir. 2001).         Rather, we

recognized that the regulation of alcohol at adult entertainment

establishments was inevitably intertwined with the right to free

speech.   Cabaret Enters., Inc. v. Alcoholic Beverages Control

Comm'n, 393 Mass. 13, 17-18 (1984).        We likened the analysis to

restrictions on speech regulating "time, place, and manner."

Mendoza, supra at 197-198.        We stated that those communities

wishing to restrict adult entertainment establishments would be

required to show some "demonstrated countervailing State
                                                                    10


interest" to justify the otherwise impermissible restriction.

Cabaret Enters., Inc., supra at 17.

    The countervailing State interest cannot concern the

content of the speech at issue, as that would impermissibly

transform the restriction from content neutral to content based.

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986).

Instead, the municipality can attempt to address the "secondary

effects" of adult establishments in crafting regulations.     Id.

at 47-48.   The appropriate secondary effects to be considered

make an exhaustive -- but not surprising -- list.   Id. at 48

(crime prevention, protection of retail trade, maintenance of

property values, protection and preservation of community life);

D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d 50, 57-58 (1st Cir.

1999) (controlling number of police calls); Mendoza, 444 Mass.

at 198-199 ("curbing crime, including prostitution and rape,

preserving property values, and minimizing danger to public

health"); Cabaret Enters., Inc., 393 Mass. at 17 (crime

prevention); D.H.L. Assocs., Inc. v. Selectmen of Tyngsborough,

64 Mass. App. Ct. 254, 257 (2005).

    The demonstration of this countervailing State interest in

the form of the mitigation of negative secondary effects need

only be shown by evidence in the judicial record or legislative

history sufficient to conclude that the restraint on speech is
                                                                   11


required for the protection of the public.5   Cabaret Enters.,

Inc., 393 Mass. at 17.   The municipality cannot rationalize the

restriction post hoc but must show the evidence it actually

considered in enacting the restriction.   T & D Video, Inc. v.

Revere, 423 Mass. 577, 581 (1996).   Neither is it necessary that

the municipality demonstrate these secondary effects by evidence

specifically studying its own unique circumstances.   Renton, 475

U.S. at 51-52 (municipality need not "conduct new studies or

produce evidence independent of that already generated by other

cities, so long as whatever evidence the city relies upon is

reasonably believed to be relevant to the problem that the city

addresses").

     The town argues that it had sufficient evidence to believe

that the presence of adult entertainment and alcohol at the same

location would lead to increased crime, a secondary effect that

the town could have a substantial interest in curtailing.   It

points to studies mentioned or outlined in a presentation by

Speak Out Mendon to the special town meeting that passed the

bylaw.   We agree with the town that the findings of the studies


     5
       In determining that the municipality has sufficient
evidence to demonstrate the countervailing State interest, we
characterize the evidentiary bar a public entity must pass when
restricting expression. Clearly, the State interest need not be
perfectly demonstrated, but the evidence before the municipality
must lead to the reasonable conclusion that a countervailing
State interest exists in fact. This requirement ensures that
the identified interest is not a spurious one.
                                                                   12


offer evidence sufficient to conclude that increased crime is a

secondary effect when adult entertainment and alcohol service

are in physical proximity.   Showtime attempts to undermine this

determination by arguing that, although crime prevention is

indeed a significant countervailing State interest, the evidence

before the town meeting did not support the conclusion that

alcohol at adult entertainment establishments increases crime or

that banning alcohol at such establishments would decrease the

rate of crime.6

     Showtime offers no affirmative evidence to counter the

town's determination that a countervailing State interest

exists.   Its criticisms of the data relied on by Mendon are the

product of an article that highlights statistical inaccuracies

in specific studies relied on by other municipalities to

demonstrate a countervailing State interest.   See Bryant Paul,

Government Regulation of "Adult" Businesses Through Zoning and

Anti-Nudity Ordinances:   Debunking the Legal Myth of Negative

Secondary Effects, 6 Comm. L. & Pol'y 355, 389 (2001).     None of


     6
       Showtime also attempts to make the distinction between
service of alcohol "at" an adult entertainment establishment, as
regulated by the alcohol restriction, and the service of alcohol
in physical proximity to the establishment, as it claims the
Garden Grove study examined. This argument has no merit. The
Garden Grove report concluded that the service of alcohol within
a radius of 1,000 feet of an adult business had a statistically
significant effect on crime rates. Contrary to Showtime's
argument, this necessarily includes the center of the circle
determined by the radius.
                                                                     13


the studies at issue in that article was utilized by the town in

the instant case.   Therefore, we are satisfied that evidence

exists within the cited studies sufficient to support the

conclusion that the town has reached in this instance.

Accordingly, we answer the first certified question in the

affirmative.   The town utilized evidence sufficient to

demonstrate a countervailing State interest.

    4.   Narrowly tailored.   Having concluded that the town has

sufficient evidence to believe that alcohol and adult

entertainment businesses lead to an increase in crime and that

crime prevention is a substantial government interest, we turn

to the question whether the bylaw is "adequately tailored."

"The 'essence of narrowly tailoring' is that 'the guideline

. . . focuses on the source of the evils the [town] seeks to

eliminate . . . and eliminates them without at the same time

banning or significantly restricting a substantial quantity of

speech that does not create the same evils.'"    Boston v. Back

Bay Cultural Ass'n, Inc., 418 Mass. 175, 182 (1994), quoting

Ward v. Rock Against Racism, 491 U.S. 781, 799 n.7 (1989).     "So

long as the means chosen are not substantially broader than

necessary to achieve the government's interest, however, the

regulation will not be invalid simply because a court concludes

that the government's interest could be adequately served by

some less-speech-restrictive alternative."     Ward, supra at 800.
                                                                    14


Put simply, we first examine if the restriction is overbroad.

If it is not overbroad, then the restriction is not

unconstitutional even if a less restrictive alternative remains

available.    To determine if the restriction is overbroad, we

look not to the effect of the restriction on the speech at issue

but rather to the effect on any other speech encompassed by the

restriction and ask if the sweep is "substantially broader than

necessary" to achieve the town's goal of crime prevention.       Id.

    The town argues that the complete ban of alcohol on the

premises of establishments identified and defined in G. L.

c. 40A, § 9A, is not substantially broader than necessary to

prevent crime because adult entertainment and the service of

alcohol remain available to the public but simply not in the

same place.   We have previously rejected this rationale in

Cabaret Enters., Inc., 393 Mass. at 17-18.    In that case, we

declined to view a statute revoking a liquor license at an

establishment featuring nude dancing as one only regulating

liquor sales.   Id. at 18.   Instead we stated that the statute

prohibited nude dancing at establishments that served alcohol,

and thus was an impermissible restriction on speech.    Id.

    The alcohol restriction here acts in the same manner as the

statute in Cabaret Enters., Inc., and therefore cannot stand

because it is substantially broader than necessary.    The bylaw

on its face bans the service of alcohol at any establishment
                                                                     15


that displays live nudity to its patrons and that is located

within the adult entertainment overlay district.    We consider a

hypothetical establishment licensed to serve alcohol, such as a

theater, theoretically located in the adult entertainment

overlay district, that wishes to show "the rock musical 'Hair,'

the play 'Equus,' and Richard Strauss's opera 'Salome' and Oscar

Wilde's play of the same name."    Mendoza, 444 Mass. at 200.

These mainstream performances feature live nudity and thus fall

under the alcohol restriction.    Yet this hypothetical theater

cannnot be said to be an adult -- or sexually oriented --

business identified as the source of negative secondary effects

in the studies utilized by the town.    Accordingly, the sweep of

that ban encompasses "work[s] 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.   Mendoza, supra, quoting Sees, 374 Mass. at 537.

    The town protests that the alcohol restriction cannot be

read in this manner.   We are not so confident.    The bylaw would

forbid the issuance of a permit for any of the above

performances in the spirit of crime prevention.    Banning all

manner of expression at establishments licensed to serve alcohol

on the basis that the expression features nude dancing is not

the logical response to the determination that alcohol service
                                                                      16


in physical proximity to adult businesses increases the

incidence of crime.     Accordingly, such a ban would clearly

violate art. 16 no matter the interest in crime prevention.      See

Sees, 374 Mass. at 537.     The town must seek other, narrower

means to pursue its goal of crime prevention.7      Accordingly, we

answer the second certified question in the negative.

     5.   Conclusion.    For the reasons stated, we answer the

first reported question in the affirmative and the second in the

negative.   The Reporter of Decisions is directed to furnish

attested copies of this opinion to the clerk of this court.      The

clerk in turn will transmit one copy, under the seal of this

court, to the clerk of the United States Court of Appeals for

the First Circuit, as the answers to the questions certified,

and will also transmit a copy to each party.

                                      So ordered.




     7
       Showtime does not contest the town's right to further its
interest in crime prevention through security and other
regulations. We particularly note that efforts to completely
ban the service or provision of alcohol pose a different
question from attempts to regulate its consumption.
