ZONING AMENDMENT ADULT USE ZONE - PLANNING .Planning Board Report to Council
Regarding Zoning Amendment
`• �4d�\-t use Zone
"°P CITY OF SALEM, MASSACHUSETTS
DEPARTMENT OF PLANNING AND
COMMUNITY DEVELOPMENT
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KIMBERLEYDRISCOLL 120 WASHINGTON STREET♦ SALEM,MASSACHUSETTS 01970
MAYOR TEL:978-745-9595 ♦ FAx:978-740-0404
LYNN GOONIN DUNCAN,AIC'
DIRECTOR
MEMORANDUM
To: Cheryl LaPointe, City Clerk
Cc: Beth Rennard, City Solicitor
From: Lynn Duncan, Director
Re: Zoning Amendment - Adult Zone
Date: May 4, 2007
Please be advised that the Planning Board has taken no action on the above-referenced zoning
amendment within the statutory 21-day period.
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Offirr of flle Cfg Council
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COUNCILLORS-AT-LARGE MATTHEW A.VENO RECEIVED WARD COUNCILLORS
PRESIDENT
zoos APR 12 2007 zoos
MARK E. BLAIR CHERYL A. LAPOINTE LUCY CORCHADO
THOMAS H. FUREY CITY CLERK DEPT.OF PLANNING S MICHAEL SOSNOWSKI
JOAN B. LOVELY COMMUNITY DEVELOPMENT JEAN M. PELLETIER
ARTHUR C. SARGENT III LEONARD F.O'LEARY
MATTHEW A.VENO
PAUL C. PREVEY
JOSEPH A.O'KEEFE,SR.
April 12, 2007
Mr. Walter B. Power, III
18 Loring Avenue
Salem, MA 01970
Dear Mr. Power:
At a joint public hearing held in the Council Chamber on Wednesday, April 11th,
2007, the enclosed zoning ordinance amendment for the creation of an Adult Zone, was
referred to the Planning Board for review with no recommendation by the City Council.
Yours truly,
Cheryl A. LaPointe
City Clerk
Cc: Lynn Duncan
City Council
SALEM CITY HALL 9 93 WASHINGTON STREET 9 SALEM, MA 01970-3592 • WWW.SALEM.COM
u
City of Salem
In the year two thousand six
An Ordinance to amend the zoning ordinance relative to special permit uses within
the Industrial Zone
Section 1. Section VII of the Salem Zoning Ordinance is hereby amended by adding the
following new section:
"Section 7-23 Adult Entertainment
A. Preamble
In the research and development of this Ordinance, the City Council has recognized that
there are some uses which, because of their very nature, create substantial, adverse
secondary effects upon the surrounding neighborhoods, particularly when several such
uses are concentrated within a given area. These findings are based on a study conducted
by a committee comprised of members of the City Council, the City Solicitor, Planning
Department, Licensing Board and the Police Department and a copy of the study is on file
in the City Clerk's office. For the purpose of this preamble, we will collectively refer to
such uses as "adult entertainment activities"; the said uses are further defined in the body
of this Ordinance. Such substantial, adverse secondary effects include, but are not limited
to: the negative impact which adult entertainment activities have on economic
development and revitalization, their tendency to decrease property values, thereby
limiting tax revenues; the impediment thereby created to economic activity; their
tendency to attract and encourage criminal activity; their tendency to proliferate, and to
encourage the proliferation of illegal, sex-related activities; their damaging impact on the
character of the surrounding neighborhoods, and upon the safety and well-being, and
upon the feelings of safety and well-being, of the residents and their minor children; and
the increased costs associated with maintaining and patrolling these areas. As such, the
City of Salem desires to protect residential lands from encroachment by commercial adult
entertainment uses and to ensure and promote the City's image as a safe,pleasant, family
friendly, diverse and attractive place to live and work. In connection with these efforts,
the City seeks to protect, preserve and enhance the historical character which is unique to
the City in terms of residential dwellings, businesses, landmarks and community events.
The primary purpose of the City Council in developing and enacting this Ordinance is to
alleviate and minimize the aforesaid substantial, adverse secondary effects, by preventing
the sort of concentration of these uses within any given area which typically gives rise to
the same. Accordingly, the City Council hereby declares and decrees as follows:
B. Adult Entertainment Activities Restricted. Generali
Notwithstanding any other provision of the Zoning Ordinance of the City of Salem which
may be to the contrary, and notwithstanding any other provision of the City Code of the
City of Salem which may be to the contrary, no business establishment of any nature and
description whatsoever shall perform, provide, or allow, permit or suffer to be performed
or provided, any adult entertainment activities, as hereinafter defined, except by leave of a
Special Permit as described hereinafter; and no such Special Permit shall be issued except
Pursuant to the provisions of this Ordinance.
C. Special Permit for Adult Entertainment Activities
(1) A Special Permit for adult entertainment activities may be issued only by the Zoning
Board of Appeal and only pursuant to, and in accordance with, the provisions of this
Ordinance.
(2) The Zoning Board of Appeal may by Special Permit\allow adult entertainment
activities only in the Industrial District.
(3) No adult entertainment activities shall be permitted within five hundred (500') lineal
feet of any residential district or any residential use.
(4)No adult entertainment activities shall be permitted within one thousand (1000') lineal
feet of any School.
(5) No adult entertainment activities shall be permitted within one thousand (1000') lineal
feet of any city park.
(6) No adult entertainment activities shall be permitted within five hundred (500') lineal
feet of any residential district or any residential use.
(7)No adult entertainment activities shall be permitted within five hundred (500) lineal
feet of any other business establishment which has obtained a Special Permit for adult
entertainment activities
(8) No adult entertainment activities shall be permitted within five hundred (500') lineal
feet of any establishment licensed under the provisions of G.L.c. 138, Sec. 12.
(9) No Special Permit for adult entertainment activities shall be issued to any person
convicted of crimes against minors including the provisions of G.L.c. 119, Sec. 63
and/or crimes against chastity, morality, decency and good order, specifically G.L.c.
272, Sections 2, 3, 4A, 413, 6, 7, 8, 12, 13 and 28.
(10) For the purpose of determining compliance with items (3) - (8) hereinabove,
measurements shall be made from the boundary line of the lot or parcel upon which
the proposed adult entertainment activities are to occur which is nearest to the
affected residential district, residential use, or business establishment, as the case may
be, to the boundary line of the affected residential district, residential use, or business
establishment, as the case may be, which is nearest to the lot or parcel upon which the
proposed adult entertainment activities are to occur.
(11) A Special Permit for adult entertainment activities shall expire one year from the
date of issuance, unless sooner revoked for cause as provided herein below, and may
be renewed only upon application in accordance with the provisions of this
Ordinance.
(12) If substantial use of any Special Permit issued for adult entertainment activities
has not commenced within one (1) year of the issuance of such Special Permit, or
within one (1) year of such time as may be required to pursue and await the results of
an appeal, if such appeal be taken, such Special Permit shall lapse and shall be null
and void. As used in this provision, "substantial use" has the meaning defined in
G.L.c. 40A, Sec. 9 and the judicial decisions construing the same.
D. Applications
(1) All applications for a Special Permit shall Ibe submitted to the Zoning Board of
Appeal in the name of the person or entity proposing to conduct an adult
entertainment activity on the business premises and shall be signed by such person
and certified as true under penalty of perjury. An original and four(4) copies of the
complete application, including all supporting materials, as described hereinbelow,
shall be filed. All applications shall be submitted on a form supplied by the city,
which shall require the following information:
(a) For each applicant: Name, any aliases or previous names, driver's license number,
if any, social security number if any, and business, mailing, and residential
address, and business telephone number.
(b) If a partnership, whether general or limited; and if a corporation: date and place of
incorporation, evidence that it is in good standing under the laws of
Massachusetts, and name and address of any registered agent for service of
process.
(c) Whether the applicant or any partner, corporate officer, or director of the
applicant, holds any other licenses under this Ordinance or any license for similar
adult entertainment or sexually oriented business, including motion picture
theaters and panoramas, from the city or another city, county or state, and if so,
the names and addresses of each other licensed business.
(d) A summary of the business history of the applicant in owning or operating the
adult entertainment or other sexually oriented businesses, providing names,
addresses and dates of operation for such businesses, and whether any business
license or adult entertainment license has been revoked or suspended, and the
reason therefor.
(e)For the applicant or any partner, corporate officer, or director of the applicant. any
and all criminal convictions or forfeitures within five years immediately preceding
the date of the application, other than parking defenses or minor traffic infractions
including the dates of conviction, nature of the crime, name and location of court
and disposition.
(f) For the applicant or any partner, corporate officer, or director of the applicant: a
description of business, occupation or employment history for the three years
immediately preceding the date of the application.
(g) Authorization for the city, its agents and employees to seek information to confirm
any statements set forth in the application.
(h) The location and doing-business-as name of the proposed adult entertainment
activity, including a legal description of the property, street address, and telephone
number, together with the name and address of each owner and lessee of the
property.
(i) A blueprint showing the configuration of the premises for the proposed adult
entertainment activity, including a statement of the total floor space occupied by
the business, and marked dimensions of the interior of the premises. Performance
areas, seating areas, manager's office and stations, restrooms and service areas
shall be clearly marked on the drawing.
Q) A site plan showing that the premises upon which the adult entertainment
activities are to be performed are not within one thousand (1000) lineal feet of
any school, one thousand 0 000) lineal feet of any park, five hundred (500) lineal
feet of any residential district or any residential use, five hundred (5001) lineal feet
of any other business establishment which has obtained a Special Permit for adult
entertainment activities, and/or five hundred (5001) lineal feet of any establishment
licensed under the provisions of G.L.c. 138, Sec. 12.
(2) An application shall be deemed complete upon the applicant's provision of all
information requested above, including identification of"none" where that is the
correct response, and the applicant's verification that the application is complete. The
Board may request other information or clarification in addition to that provided in a
complete application where necessary to determine compliance with this chapter.
(3) A nonrefundable application fee in the amount of
must be paid at the
time of filing an application in order to defray the costs of processing the application.
(4) Each applicant shall verify, under penalty of perjury that the information contained in
the application is true.
(5) If any person or entity acquires, subsequent to the issuance of a Special Permit, a
significant interest based on responsibility for management or operation of the
licensed premises or the licensed business, notice of such acquisition shall be
provided in writing to the Zoning Board of Appeal, no later than 21 days following
such acquisition. The notice required shall include the information required for the
original Special Permit application.
(6) The Special Permit, if granted, shall state on its face the name of the person or
persons to whom it is issued, the expiration date, the doing-business-as name and the
address of the licensed adult entertainment activity. The permit shall be posted in a
conspicuous place at or near the entrance to the adult entertainment activity so that it
can be easily read at any time the business is open.
(7) No person granted a Special Permit pursuant to this chapter shall operate the adult
entertainment activity under a name not specified on the license, nor shall any person
Operate an adult entertainment activity under any designation or at any location not
specified on the license.
(8) Upon receipt of the complete application and fee, the clerk shall provide copies to the
Police, fire, and health departments, and to the Building Inspector, for their investigation
and review to determine compliance of the proposed adult entertainment activity with the
laws and regulations which each department administers. Each department shall, within
30 days of the date of such application, inspect the application and premises and shall
make a written report to the clerk whether such application and premises comply with the
laws administered by each department. No Special Permit may be issued unless each
department reports that the application and premises comply with the relevant laws. In
the event the premises are not yet constructed, the departments shall base their
recommendation as to premises compliance on their review of the drawings submitted in
the application. Any Special Permit approved prior to premises construction shall
contain a condition that the premises may not open for business until the premises have
been inspected and application. A department shall recommend denial of a Special
Permit under this subsection if it finds that the proposed adult entertainment activity is
not in conformance with the requirements of this chapter or other law in effect in the city.
A recommendation for denial shall cite the specific reason therefor, including reference
to all applicable laws.
(9) A Special Permit shall only be issued following a public hearing held within sixty
five (65) days after filing of an application with the Zoning Board of Appeal.
0 0) The Zoning Board of Appeal shall act within ninety days following a public hearing
for which notice has been given by publication or posting as provided in G.L.c. 40A, Sec.
11, and by mailing to all parties in interest. Failure by the Board to take final action upon
an application for a Special Permit within said ninety days following the date of public
hearing shall be deemed to be a grant of the permit applied for. Approval of a Special
Permit shall require a favorable vote by two-thirds of the Board.
(11)Any existing adult bookstore, adult motion picture theater, adult paraphernalia
store or establishment which displays live nudity for its patrons, or adult video store shall
apply for such Special Permit within ninety days following the adoption of this
Ordinance.
(12)Any renewal of a Special Permit issued under the provisions of this Ordinance will
comply with all of the requirements applicable to an original application
E. Regulation of Adult Entertainment Activities
(1) No sign or other matter or visual material, of any nature whatsoever, which is visible
from the street or from any other external vantage point, shall contain any
photographs, silhouettes, pictorial representations, or language, depicting or in any
manner referencing any adult paraphernalia, nudity, or sexual excitement.
(2) Admission to the premises must be restricted to persons eighteen (18)years of age or
older, and if the establishment is licensed to serve alcoholic beverages, admission
must be restricted to persons twenty-one (2 1)years of age or older.
(3) Sufficient lighting shall be provided and equally distributed throughout the public
areas of the premises so that all objects are plainly visible at all times. A minimum
lighting level of 30 lux horizontal, measured at 30 inches from the floor and on 10-
foot centers is hereby established for all areas of the adult cabaret where members of
the public are admitted.
(4) A managerial employee shall be on duty on the premises at all times that such
Premises are open to the public. The name of the managerial employee shall be
Prominently posted during business hours. Such managerial employee shall be
responsible for compliance with the provisions of this Ordinance and any and all
other, applicable ordinances or provisions of law.
(5) No member of the public shall be permitted at any time to enter into any of the
nonpublic portions of the establishment, with the exception that persons delivering
goods and materials, food and beverages, or 'performing maintenance or repairs to
the premises or to equipment on the premises, may be permitted into nonpublic
areas to the extent required to perform their said jobs or duties.
(6) No establishment shall permit, suffer or tolerate the solicitation and/or performance of
Prostitution, unlawful distribution and/or use of controlled substances, and/or other
illegal activities, by any of its employees or patrons, or by any other person on the
premises. Such "other illegal activities" include, but are not limited to, any adult
entertainment activities which are not included within the establishment's Special
Permit.
(7) Recordkeeping Requirements:
(a) All papers, records, and things required to be kept pursuant to this Ordinance,
or to any other provision of law, shall be open to inspection without notice by
the City and its agents during the hours when the premises are open for
business. The purpose of such inspections shall be to determine whether the
papers, records, and things meet the requirements of this Ordinance and/or any
other provision of law.
(b) Each establishment shall maintain and retain for a period of two years the
name, address, and age of each person employed or otherwise retained or
allowed to perform on the premises as an adult entertainer, including
independent contractors and
their employees, as an entertainer. This
information shall be open to inspection by the City and its agents, without prior
notice, during hours of operation of the business.
(8) Inspections. In order to insure compliance with this Ordinance all areas of the
Premises which are open to members of the public shall be open to inspection by
City and its agents, without prior notice, during the hours when the premises are
Open for business. The purpose of such inspections shall be to determine if the
premises are operated in accordance with the requirements of this Ordinance. Itis
hereby expressly declared that unannounced inspections are necessary to insure
compliance with this Ordinance.
F. Suspension or Revocation of S ecial Permit: Other Remedies
(1) Upon notice and a hearing as provided by applicable law, the Zonin
may suspend or revoke any Special Permit issued under the g Board s Appeal
Ordinance, upon a finding, Supported Provisions of this
g, pported by a preponderance of the evidence, of anyone
or more of the following:
(a) that the applicant has failed to meet anyone or more of the requirements of
this Ordinance, or no longer meets anyone or more of the requirements of this
Ordinance, or that the applicant has made a false, misleading or fraudulent
statement of material fact on the application for the Special Permit;
(b) that the applicant or the establishment is in violation of anyone of more
Provisions of this Ordinance; and/or
(c) that the applicant or the establishment in violation of anyone or more
Provisions of any other law governing the operation of the business of the
establishment, including, but not limited to, any law, rule or regulation
pertaining to the service of alcoholic beverages upon the premises, or to the
licensure therefor.
(2) Public Nuisance. Any adult entertainment activity operated, conducted, maintained,
Permitted or suffered in violation of this Ordinance or any other applicable provision
of law shall be, and the same is, declared to be unlawful and a public nuisance. The
city attorney may, in addition to or in lieu of any other remedies set forth in this
Ordinance, commence an action to enjoin, remove or abate such
nuisance in the
manner provided by law and shall take such other steps and a
suchcourt
courts as may have jurisdiction to grant such relief as will abate or remove such or
Public nuisance, and restrain and enjoin an
maintainin Y person from operating, conducting or
g an adult entertainment activity contrary to the provisions of this
Ordinance or any other applicable provision of law.
(3) Additional Remedies. The remedies prescribed in this Ordinance are not exclusive,
and the City may seek any other relief, civil and/or criminal, that the law provides for
any violation of such ordinances.
G. Miscellaneous
(1) Nothing contained herein shall be construed as limiting the power and authority of the
City to otherwise regulate the use of land, structures or buildings in accordance with
other Ordinances or provisions of the Massachusetts General Laws.
(2) Severability. If any section, subsection, paragraph, sentence, clause,
Of this Ordinance is, for any reason, held invalid or unconstitutional by prase of portion
competent jurisdiction, such portion shall be deemed a separate, distinct, andourt of
independent provision, and such holding shall not effect the validity of the remaining
Portions of this Ordinance."
Section II. Amend Section 5-3 (h)(2) of the Zoning
new phrase at the end of the first sentence: ' Ordinance by adding the following
and adult entertainment uses subject to the
restrictions specified in Section 7-23."
Section III. Amend Article II, Section 2-2(b) Definitions by inserting the following new
definitions in alphabetical order:
"Adult bookstore: an establishment having as a substantial or significant portion of its
stock in trade, books, magazines, and other matter which are distinguished or
characterized by their emphasis depicting, describing, or relating to sexual conduct or
sexual excitement as defined herein.
Adult entertainment activities: adult bookstore, adult motion picture theatre, adult
Paraphernalia store, adult video store, establishment which displays live nudity for its
patrons.
Adult motion picture theatre: an enclosed building used for presenting material
distinguished by an emphasis on matter depicting, describing, or relating to sexual
conduct or sexual excitement as defined herein.
Adult paraphernalia store: an establishment having as a substantial or significant
Portion of its stock devices, objects, tools, or toys which are distinguished or
characterized by their association with sexual activity, including sexual conduct or sexual
excitement as defined herein.
Adult video store: an establishment having as a substantial or significant portion of its
stock in trade, videos, movies, or other film material which are distinguished or
characterized by their emphasis depicting, describing, or relating to sexual conduct or
sexual excitement as defined herein.
Establishment which displays live nudity for its patrons: any establishment which
Provides live entertainment for its patrons, which includes the display of nudity, as that
term is defined herein.
Matter: any printed material, visual representation, live performance or sound recording
including but not limited to, books, magazines, motion picture films, pamphlets,
phonographic records, pictures,photographs, figures, statues, plays, dances.
Nudity: uncovered or less than opaquely covered human genitals, pubic areas, the
human female breast below a point immediately above the top of the areola, or the
covered male genitals in a discernibly turgid state. For purposes of this definition, a
female breast is considered uncovered if the nipple or areola only are covered.
Performance: any play, dance, exhibit. or activity performed before one or more
Persons.
Sexual conduct: human masturbation, sexual intercourse, actual or simulated, normal
or perverted. any lewd exhibitions of the genitals, flagellation or torture in the context of
a sexual relationship, any lewd touching of the genitals, pubic areas or buttocks of the
human male or female, or the breasts of the female, whether alone or between members
of the same or opposite sex or between humans and animals, and any depiction or
representation of excretory functions in the context of a sexual relationship. Sexual
intercourse is simulated when it depicts explicit sexual intercourse which gives the
appearance of the consummation of sexual intercourse, normal or perverted.
Sexual excitement: the condition of human male or female genitals or the breasts of the
female while in a state of sexual stimulation or the sensual experiences of humans
engaging in or witnessing sexual conduct or nudity.
Substantial or significant portion: a use or activity accounting for more than twenty
(20%)percent of anyone or more of the following: stock-in-trade display space, floor
I space, or viewing time, movie display time, or entertainment time, all of the foregoing
being measured on a per-month basis.
Visual material: any motion picture film, picture, photograph, videotape, any book,
magazine, or pamphlet that contains pictures, photographs or similar visual
representations or reproductions. Undeveloped photographs, pictures, motion picture
films, videotapes and similar visual representations or reproductions may be visual
materials notwithstanding that processing, development or similar acts may be required to
make the contents thereof apparent."
Section IV. This Ordinance shall take effect as provided by City Charter.
In City Council October 12, 2006
Refer to the Planning Board to schedule a
Public Hearing held on November 13, 2006 joint public hearing with the Cit; Council
Adopted y, February 6
Public Hearing continued February6 Y 2007 at 6:30 P.M. was
Motion to recess public hearing 2007
Public Hearing continued April11,� 2007til prrl 11, 2007 at 6:30 P.M,
Referred to the Planning Board with no recommendation. was Adopted
ATTEST:
CHERYL A. LAPOINTE
CITY CLERK
ED
Cnif r 0f'$a1rM' 'MassarhusPffs RE EE-IV
Of6re of the &V Guuril OCT 16 2006
(2litg Pull DEPT. PLANNING&
COMMUNITIT Y DEVELOPMENT
COUNCILLORS-AT-LARGE JEAN M. PELLETIER WARD COUNCILLORS
PRESIDENT -
2006 2006
MARK E. BLAIR CHERYLA. LAPOINTE LUCY CORCHADO
THOMAS H. FUREY CITY CLERK MICHAEL SOSNOWSKI
JOAN B. LOVELY JEAN M. PELLETIER
ARTHUR C.SARGENT III LEONARD F. O'LEARY
MATTHEW A.VENO
PAUL C. PREVEY
JOSEPH A.O'KEEFE,SR.
October 16, 2006
Ms. Lynn Duncan, Planner
City of Salem
Planning Dept.
Salem, MA 01970
Dear Ms. Duncan:
At a regular meeting of the Salem City Council, held in the Council Chamber on
Thursday, October 12, 2006, the enclosed Zoning Ordinance amendment to allow for
Adult Entertainment, was referred to the Planning Board to schedule a Joint Public
Hearing with the City Council.
Please contact me at your earliest convenience so we can schedule the Hearing.
Very truly yours,
CHERYL A. LAPOINTE
CITY CLERK
Enclosure
cc: City Council
Walter Power
SALEM CITY HALL • 93 WASHINGTON STREET • SALEM, MA 01970-3592 • WWW.SALEM000NCIL.COM
City of Salem
In the year two thousand six
An Ordinance to amend the zoning ordinance relative to special permit uses within
the Industrial Zone
Section 1. Section VII of the Salem Zoning Ordinance is hereby amended by adding the
following new section:
"Section 7-23 Adult Entertainment
A. Preamble
In the research and development of this Ordinance, the City Council has recognized that
there are some uses which, because of their very nature, create substantial, adverse
secondary effects upon the surrounding neighborhoods, particularly when several such
uses are concentrated within a given area. These findings are based on a study conducted
by a committee comprised of members of the City Council, the City Solicitor, Planning
Department, Licensing Board and the Police Department and a copy of the study is on file
in the City Clerk's office. For the purpose of this preamble, we will collectively refer to
such uses as "adult entertainment activities"; the said uses are further defined in the body
of this Ordinance. Such substantial, adverse secondary effects include, but are not limited
to: the negative impact which adult entertainment activities have on economic
development and revitalization, their tendency to decrease property values, thereby
limiting tax revenues; the impediment thereby created to economic activity; their
tendency to attract and encourage criminal activity; their tendency to proliferate, and to
encourage the proliferation of illegal, sex-related activities; their damaging impact on the
character of the surrounding neighborhoods, and upon the safety and well-being, and
upon the feelings of safety and well-being, of the residents and their minor children; and
the increased costs associated with maintaining and patrolling these areas. As such,the
City of Salem desires to protect residential lands from encroachment by commercial adult
entertainment uses and to ensure and promote the City's image as a safe, pleasant, family
friendly, diverse and attractive place to live and work. In connection with these efforts,
the City seeks to protect, preserve and enhance the historical character which is unique to
the City in terms of residential dwellings, businesses, landmarks and community events.
The primary purpose of the City Council in developing and enacting this Ordinance is to
alleviate and minimize the aforesaid substantial, adverse secondary effects, by preventing
the sort of concentration of these uses within any given area which typically gives rise to
the same. Accordingly, the City Council hereby declares and decrees as follows:
B. Adult Entertainment Activities Restricted. Generally
Notwithstanding any other provision of the Zoning Ordinance of the City of Salem which
may be to the contrary, and notwithstanding any other provision of the City Code of the
City of Salem which may be to the contrary, no business establishment of any nature and
description whatsoever shall perform, provide, or allow, permit or suffer to be performed
or provided, any adult entertainment activities, as hereinafter defined, except by leave of a
Special Permit as described hereinafter; and no such Special Permit shall be issued except
pursuant to the provisions of this Ordinance.
C. Special Permit for Adult Entertainment Activities
(1) A Special Permit for adult entertainment activities may be issued only by the Zoning
Board of Appeal and only pursuant to, and in accordance with, the provisions of this
Ordinance.
(2) The Zoning Board of Appeal may by Special Permit\allow adult entertainment
activities only in the Industrial District.
(3) No adult entertainment activities shall be permitted within five hundred (500') lineal
feet of any residential district or any residential use.
(4)No adult entertainment activities shall be permitted within one thousand (1000') lineal
feet of any School.
(5) No adult entertainment activities shall be permitted within one thousand (1000) lineal
feet of any city park.
i
(6) No adult entertainment activities shall be permitted within five hundred (500') lineal
feet of any residential district or any residential use.
(7)No adult entertainment activities shall be permitted within five hundred (500') lineal
feet of any other business establishment which has obtained a Special Permit for adult
entertainment activities
(8) No adult entertainment activities shall be permitted within five hundred (500') lineal
feet of any establishment licensed under the provisions of G.L.c. 138, Sec. 12.
(9) No Special Permit for adult entertainment activities shall be issued to any person
convicted of crimes against minors including the provisions of G.L.c. 119, Sec. 63
and/or crimes against chastity, morality, decency and good order, specifically G.L.c.
272, Sections 2, 3, 4A, 413, 6, 7, 8, 12, 13 and 28.
(10) For the purpose of determining compliance with items (3) - (8)hereinabove,
measurements shall be made from the boundary line of the lot or parcel upon which
the proposed adult entertainment activities are to occur which is nearest to the
affected residential district, residential use, or business establishment, as the case may
be, to the boundary line of the affected residential district, residential use, or business
establishment, as the case may be, which is nearest to the lot or parcel upon which the
proposed adult entertainment activities are to occur.
(11) A Special Permit for adult entertainment activities shall expire one year from the
date of issuance, unless sooner revoked for cause as provided herein below, and may
be renewed only upon application in accordance with the provisions of this
Ordinance.
(12) If substantial use of any Special Permit issued for adult entertainment activities
has not commenced within one (1)year of the issuance of such Special Permit, or
within one (1)year of such time as may be required to pursue and await the results of
an appeal, if such appeal be taken, such Special Permit shall lapse and shall be null
and void. As used in this provision, "substantial use" has the meaning defined in
G.L.c. 40A, Sec. 9 and the judicial decisions construing the same.
D. Applications
(1) All applications for a Special Permit shall Ibe submitted to the Zoning Board of
Appeal in the name of the person or entity proposing to conduct an adult
entertainment activity on the business premises and shall be signed by such person
and certified as true under penalty of perjury. An original and four(4) copies of the
complete application, including all supporting materials, as described hereinbelow,
shall be filed. All applications shall be submitted on a form supplied by the city,
which shall require the following information:
(a) For each applicant: Name, any aliases or previous names, driver's license number,
if any, social security number if any, and business, mailing, and residential
address, and business telephone number.
(b) If a partnership, whether general or limited; and if a corporation: date and place of
incorporation, evidence that it is in good standing under the laws of
Massachusetts, and name and address of any registered agent for service of
process.
(c) Whether the applicant or any partner, corporate officer, or director of the
applicant,holds any other licenses under this Ordinance or any license for similar
adult entertainment or sexually oriented business, including motion picture
theaters and panoramas, from the city or another city, county or state, and if so,
the names and addresses of each other licensed business.
(d) A summary of the business history of the applicant in owning or operating the
adult entertainment or other sexually oriented businesses, providing names,
addresses and dates of operation for such businesses, and whether any business
license or adult entertainment license has been revoked or suspended, and the
reason therefor.
(e) For the applicant or any partner, corporate officer, or director of the applicant: any
and all criminal convictions or forfeitures within five years immediately preceding
the date of the application, other than parking defenses or minor traffic infractions
including the dates of conviction, nature of the crime, name and location of court
and disposition.
(f)For the applicant or any partner, corporate officer, or director of the applicant: a
description of business, occupation or employment history for the three years
immediately preceding the date of the application.
(g) Authorization for the city, its agents and employees to seek information to confirm
any statements set forth in the application.
(h)The location and doing-business-as name of the proposed adult entertainment
activity, including a legal description of the property, street address, and telephone
number, together with the name and address of each owner and lessee of the
property.
(i)A blueprint showing the configuration of the premises for the proposed adult
entertainment activity, including a statement of the total floor space occupied by
the business, and marked dimensions of the interior of the premises. Performance
areas, seating areas, manager's office and stations, restrooms and service areas
shall be clearly marked on the drawing.
(j) A site plan showing that the premises upon which the adult entertainment
activities are to be performed are not within one thousand (1000') lineal feet of
any school, one thousand(1000') lineal feet of any park, five hundred (500) lineal
feet of any residential district or any residential use, five hundred (500) lineal feet
of any other business establishment which has obtained a Special Permit for adult
entertainment activities, and/or five hundred(500') lineal feet of any establishment
licensed under the provisions of G.L.c. 138, Sec. 12.
(2) An application shall be deemed complete upon the applicant's provision of all
information requested above, including identification of"none" where that is the
correct response, and the applicant's verification that the application is complete. The
Board may request other information or clarification in addition to that provided in a
complete application where necessary to determine compliance with this chapter.
(3) A nonrefundable application fee in the amount of must be paid at the
time of filing an application in order to defray the costs of processing the application.
(4) Each applicant shall verify, under penalty of perjury that the information contained in
the application is true.
(5) If any person or entity acquires, subsequent to the issuance of a Special Permit, a
significant interest based on responsibility for management or operation of the
licensed premises or the licensed business, notice of such acquisition shall be
provided in writing to the Zoning Board of Appeal, no later than 21 days following
such acquisition. The notice required shall include the information required for the
original Special Permit application.
(6) The Special Permit, if granted, shall state on its face the name of the person or
persons to whom it is issued, the expiration date, the doing-business-as name and the
address of the licensed adult entertainment activity. The permit shall be posted in a
conspicuous place at or near the entrance to the adult entertainment activity so that it
can be easily read at any time the business is open.
(7) No person granted a Special Permit pursuant to this chapter shall operate the adult
entertainment activity under a name not specified on the license, nor shall any person
operate an adult entertainment activity under any designation or at any location not
specified on the license.
(8) Upon receipt of the complete application and fee, the clerk shall provide copies to the
police, fire, and health departments, and to the Building Inspector, for their investigation
and review to determine compliance of the proposed adult entertainment activity with the
laws and regulations which each department administers. Each department shall, within
30 days of the date of such application, inspect the application and premises and shall
make a written report to the clerk whether such application and premises comply with the
laws administered by each department. No Special Permit may be issued unless each
department reports that the application and premises comply with the relevant laws. In
the event the premises are not yet constructed, the departments shall base their
recommendation as to premises compliance on their review of the drawings submitted in
the application. Any Special Permit approved prior to premises construction shall
contain a condition that the premises may not open for business until the premises have
been inspected and application. A department shall recommend denial of a Special
Permit under this subsection if it finds that the proposed adult entertainment activity is
not in conformance with the requirements of this chapter or other law in effect in the city.
A recommendation for denial shall cite the specific reason therefor, including reference
to all applicable laws.
(9) A Special Permit shall only be issued following a public hearing held within sixty
five (65) days after filing of an application with the Zoning Board of Appeal.
(10)The Zoning Board of Appeal shall act within ninety days following a public hearing
for which notice has been given by publication or posting as provided in G.L.c. 40A, Sec.
11, and by mailing to all parties in interest. Failure by the Board to take final action upon
an application for a Special Permit within said ninety days following the date of public
hearing shall be deemed to be a grant of the permit applied for. Approval of a Special
Permit shall require a favorable vote by two-thirds of the Board.
(11) Any existing adult bookstore, adult motion picture theater, adult paraphernalia
store or establishment which displays live nudity for its patrons, or adult video store shall
apply for such Special Permit within ninety days following the adoption of this
Ordinance.
(12)Any renewal of a Special Permit issued under the provisions of this Ordinance will
comply with all of the requirements applicable to an original application.
E. Regulation of Adult Entertainment Activities
(1) No sign or other matter or visual material, of any nature whatsoever, which is visible
from the street or from any other external vantage point, shall contain any
photographs, silhouettes, pictorial representations, or language, depicting or in any
manner referencing any adult paraphernalia, nudity, or sexual excitement.
(2) Admission to the premises must be restricted to persons eighteen (18) years of age or
older, and if the establishment is licensed to serve alcoholic beverages, admission
must be restricted to persons twenty-one (21) years of age or older.
(3) Sufficient lighting shall be provided and equally distributed throughout the public
areas of the premises so that all objects are plainly visible at all times. A minimum
lighting level of 30 lux horizontal, measured at 30 inches from the floor and on 10-
foot centers is hereby established for all areas of the adult cabaret where members of
the public are admitted.
(4) A managerial employee shall be on duty on the premises at all times that such
premises are open to the public. The name of the managerial employee shall be
prominently posted during business hours. Such managerial employee shall be
responsible for compliance with the provisions of this Ordinance and any and all
other, applicable ordinances or provisions of law.
(5) No member of the public shall be permitted at any time to enter into any of the
nonpublic portions of the establishment, with the exception that persons delivering
goods and materials, food and beverages, or'performing maintenance or repairs to
the premises or to equipment on the premises, may be permitted into nonpublic
areas to the extent required to perform their said jobs or duties.
(6) No establishment shall permit, suffer or tolerate the solicitation and/or performance of
prostitution, unlawful distribution and/or use of controlled substances, and/or other
illegal activities, by any of its employees or patrons, or by any other person on the
premises. Such "other illegal activities" include,but are not limited to, any adult
entertainment activities which are not included within the establishment's Special
Permit.
(7) Recordkeeping Requirements:
(a) All papers, records, and things required to be kept pursuant to this Ordinance,
or to any other provision of law, shall be open to inspection without notice by
the City and its agents during the hours when the premises are open for
business. The purpose of such inspections shall be to determine whether the
papers, records, and things meet the requirements of this Ordinance and/or any
other provision of law.
(b) Each establishment shall maintain and retain for a period of two years the
name, address, and age of each person employed or otherwise retained or
allowed to perform on the premises as an adult entertainer, including
independent contractors and their employees, as an entertainer. This
information shall be open to inspection by the City and its agents, without prior
notice, during hours of operation of the business.
(8) Inspections. In order to insure compliance with this Ordinance all areas of the
premises which are open to members of the public shall be open to inspection by
City and its agents, without prior notice, during the hours when the premises are
open for business. The purpose of such inspections shall be to determine if the
premises are operated in accordance with the requirements of this Ordinance. It is
hereby expressly declared that unannounced inspections are necessary to insure
compliance with this Ordinance.
F. Suspension or Revocation of Special Permit: Other Remedies
(1) Upon notice and a hearing as provided by applicable law, the Zoning Board of Appeal
may suspend or revoke any Special Permit issued under the provisions of this
Ordinance, upon a finding, supported by a preponderance of the evidence, of anyone
or more of the following:
(a) that the applicant has failed to meet anyone or more of the requirements of
this Ordinance, or no longer meets anyone or more of the requirements of this
Ordinance, or that the applicant has made a false, misleading or fraudulent
statement of material fact on the application for the Special Permit;
(b) that the applicant or the establishment is in violation of anyone of more
provisions of this Ordinance; and/or
(c) that the applicant or the establishment in violation of anyone or more
provisions of any other law governing the operation of the business of the
establishment, including, but not limited to, any law, rule or regulation
pertaining to the service of alcoholic beverages upon the premises, or to the
licensure therefor.
(2) Public Nuisance. Any adult entertainment activity operated, conducted, maintained,
permitted or suffered in violation of this Ordinance or any other applicable provision
of law shall be, and the same is, declared to be unlawful and a public nuisance. The
city attorney may, in addition to or in lieu of any other remedies set forth in this
Ordinance, commence an action to enjoin, remove or abate such nuisance in the
manner provided by law and shall take such other steps and apply to such court or
courts as may have jurisdiction to grant such relief as will abate or remove such
public nuisance, and restrain and enjoin any person from operating, conducting or
maintaining an adult entertainment activity contrary to the provisions of this
Ordinance or any other applicable provision of law.
(3) Additional Remedies. The remedies prescribed in this Ordinance are not exclusive,
and the City may seek any other relief, civil and/or criminal, that the law provides for
any violation of such ordinances.
G. Miscellaneous
(1) Nothing contained herein shall be construed as limiting the power and authority of the
City to otherwise regulate the use of land, structures or buildings in accordance with
other Ordinances or provisions of the Massachusetts General Laws.
(2) Severability. If any section, subsection, paragraph, sentence, clause, phrase or portion
of this Ordinance is, for any reason, held invalid or unconstitutional by any court of
competent jurisdiction, such portion shall be deemed a separate, distinct, and
independent provision, and such holding shall not effect the validity of the remaining
portions of this Ordinance."
Section H. Amend Section 5-3 (h)(2)of the Zoning Ordinance by adding the following
new phrase at the end of the first sentence: "and adult entertainment uses subject to the
restrictions specified in Section 7-23."
Section III. Amend Article II, Section 2-2(b) Definitions by inserting the following new
definitions in alphabetical order:
"Adult bookstore: an establishment having as a substantial or significant portion of its
stock in trade, books, magazines, and other matter which are distinguished or
characterized by their emphasis depicting, describing, or relating to sexual conduct or
sexual excitement as defined herein.
Adult entertainment activities: adult bookstore, adult motion picture theatre, adult
paraphernalia store, adult video store, establishment which displays live nudity for its
patrons.
Adult motion picture theatre: an enclosed building used for presenting material
distinguished by an emphasis on matter depicting, describing, or relating to sexual
conduct or sexual excitement as defined herein.
Adult paraphernalia store: an establishment having as a substantial or significant
portion of its stock devices, objects, tools, or toys which are distinguished or
characterized by their association with sexual activity, including sexual conduct or sexual
excitement as defined herein.
Adult video store: an establishment having as a substantial or significant portion of its
stock in trade,videos, movies, or other film material which are distinguished or
characterized by their emphasis depicting, describing, or relating to sexual conduct or
sexual excitement as defined herein.
Establishment which displays live nudity for its patrons: any establishment which
provides live entertainment for its patrons, which includes the display of nudity, as that
term is defined herein.
Matter: any printed material,visual representation, live performance or sound recording
including but not limited to, books, magazines, motion picture films, pamphlets,
phonographic records, pictures, photographs, figures, statues,plays, dances.
Nudity: uncovered or less than opaquely covered human genitals, pubic areas,the
human female breast below a point immediately above the top of the areola, or the
covered male genitals in a discernibly turgid state. For purposes of this definition, a
female breast is considered uncovered if the nipple or areola only are covered.
Performance: any play, dance, exhibit. or activity performed before one or more
persons.
Sexual conduct: human masturbation, sexual intercourse, actual or simulated, normal
or perverted. any lewd exhibitions of the genitals, flagellation or torture in the context of
a sexual relationship, any lewd touching of the genitals,pubic areas or buttocks of the
human male or female, or the breasts of the female, whether alone or between members
of the same or opposite sex or between humans and animals, and any depiction or
representation of excretory functions in the context of a sexual relationship. Sexual
intercourse is simulated when it depicts explicit sexual intercourse which gives the
appearance of the consummation of sexual intercourse, normal or perverted.
Sexual excitement: the condition of human male or female genitals or the breasts of the
female while in a state of sexual stimulation or the sensual experiences of humans
engaging in or witnessing sexual conduct or nudity.
Substantial or significant portion: a use or activity accounting for more than twenty
(20%) percent of anyone or more of the following: stock-in-trade, display space, floor
space, or viewing time, movie display time, or entertainment time, all of the foregoing
being measured on a per-month basis.
Visual material: any motion picture film, picture, photograph, videotape, any book,
magazine, or pamphlet that contains pictures, photographs or similar visual
representations or reproductions. Undeveloped photographs, pictures, motion picture
films,videotapes and similar visual representations or reproductions may be visual
materials notwithstanding that processing, development or similar acts may be required to
make the contents thereof apparent."
Section IV This Ordinance shall take effect as provided by City Charter.
In City Council October 12, 2006
Refer to the Planning Board to schedule a joint public hearing with the City Council
ATTEST: CHERYL A. LAPOINTE
CITY CLERK
09/15/03 MON 16:34 PAX 9787400072 JOHN D MMNAN 9002/037
Memo to: Mayor Stanley J. Usovicz, Jr.
From: William J. Lundregan, City Solicitor
Dated: July 9, 1998
RE: Proposed Ordinance to Regulate "Adult' Entertainment
Introduction
You have asked me to research the feasibility of drafting an ordinance which would
limit the possibility of "adult entertainment^ activities within the City of Salem. I have
done so, and herewith provide you with (1) my opinion and (2) a proposed ordinance.
At the outset, let me say that the judicial decisions on both the state and federal level
are absolutely clear on one point: most so-called "adult entertainment" activities are
deemed to be protected "expression" for constitutional purposes; thus, an ordinance
purporting to simply ban such activities will certainly be stricken as unconstitutional
under the First Amendment to the United States Constitution and under Article Sixteen
of the Massachusetts Declaration of Rights. The more recent court decisions, however,
have evidenced growing support for the right of municipalities, through the use of their
zoning power, to limit adult entertainment to certain defined geographic areas.
Because it is axiomatic that a municipality may not enact ordinances that are outside
the scope of the authority conferred upon it by the state Legislature, 1 will begin this
discussion with a review of the statutory authority for the sort of ordinance that you are
contemplating. Next, I will extensively discuss the difficult constitutional parameters
within which any such ordinance must confine itself. Finally, I will set out the text of a
proposed ordinance which I believe will survive any constitutional challenge.
The Statutory Framework
Three statutes in Massachusetts purport to vest in local authorities the right to regulate
and restrict "adult entertainment" activities: G.L.c. 40A, Sec. 9A; G.L.c. 138, Sec. 128;
and G.L.c. 140, Sec. 183A. As you know, G.L.c. 40A is the Zoning Enabling Act; Sec.
9A thereof, "Special permits for adult bookstores, adult motion pictures theaters, adult
paraphernalia stores, adult video stores or establishments which display live nudity,"
provides as follows:
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09/15/03 MON 19:34 FAX 9787400072 JOHN D HEENAN 0003/037
Zoning ordinances or by-laws may provide for special permits authorizing the
establishment of adult bookstores, adult motion picture theaters, adult paraphernalia
stores, adult video stores or establishments which display live nudity for their patrons
as hereinafter defined. Such zoning ordinance or by-law may state the
specific improvements, amenities or locations of proposed uses for which
such permit may be granted and may provide that the proposed use be a
specific distance from any district designated by zoning ordinance or by-
law for any residential use or from any other adult bookstore or adult
motion picture theatre or from any establishment licensed under the
provisions of section twelve of chapter one hundred and thirty-eight.
Such zoning ordinance or by-law shall prohibit the issuance of such special permits to
any person convicted of violating the provisions of section sixty-three of chapter one
hundred and nineteen or section twenty-eight of chapter two hundred and seventy-
two.
As used in this section, the following words shall have the following meanings:--
"Adult bookstore", an establishment having as a substantial or significant portion of its
stock in trade, books, magazines, and other matter which are distinguished or
characterized by their emphasis depicting, describing, or relating to sexual conduct or
sexual excitement as defined in section thirty-one of chapter two hundred and seventy-
two.
"Adult motion picture theatre", an enclosed building used for presenting material
distinguished by an emphasis on matter depicting, describing, or relating to sexual
conduct or sexual excitement as defined in section thirty-one of chapter two hundred
and seventy-two,
-Adult paraphernalia store,° an establishment having as a substantial or significant
portion of its stock devices, objects, tools, or toys which are distinguished or
characterized by their association with sexual activity, including sexual conduct or
sexual excitement as defined in section thirty-one of chapter two hundred and seventy-
two.
"Adult video store," an establishment having as a substantial or significant portion of its
stock in trade, videos, movies, or other film material which are distinguished or
characterized by their emphasis depicting, describing, or relating to sexual conduct or
sexual excitement as defined in said section thirty-one of said chapter two hundred
and seventy-two.
"Establishment which displays live nudity for its patrons", any establishment which
provides live entertainment for its patrons, which includes the display of nudity, as that
tern is defined in section thirty-one of chapter two hundred and seventy-two.
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Zoning ordinances or by-laws shall provide that special permits shall only be issued
following public hearings held within sixty-five days after filing of an application with
the special permit granting authority, a copy of which shall forthwith be given to the city
or town clerk by the applicant, and may provide that certain classes of special permits
shall be issued by one special permit granting authority and others by another special
permit granting authority as provided in the ordinance or by-law. Such special permit
granting authority shall adopt and from time to time amend rules relative to the
issuance of such permits, and shall file a copy of said rales in the office of the city or
town clerk. Such rules shall prescribe a size, form, contents, style and number of
copies of plans and specifications and the procedure for a submission and approval of
such permits.
Special permit granting authorities shall act within ninety days following a public
hearing for which notice has been given by publication or posting as provided in
section eleven, and by mailing to all parties in interest; provided, however, that a city
council having more than five members designated to act upon such a permit may
appoint a committee of such council to hold the public hearing. Failure by a special
permit granting authority to take final action upon an application for a special permit
within said ninety days following the date of public hearing shall be deemed to be a
grant of the permit applied for. Special permits issued by a special permit granting
authority shall require a two-thirds vote of boards with more than five members, a vote
of at least four members of a five member board and a unanimous vote of a three
member board. Zoning ordinances or by-laws shall provide that a special permit
granted under this section shall lapse within a specified period of time, not more than
two years, and including such time required to pursue or await the determination of an
appeal referred to in section seventeen, from the grant thereof, if a substantial use
thereof has not sooner commenced except for good cause or, in the case of permit for
construction, if construction has not begun by such date except for good cause.
Any existing adult bookstore, adult motion picture theater, adult paraphernalia store or
establishment which displays live nudity for its patrons, or adult video store shall apply
for such permit within ninety days following the adoption of said zoning ordinance or
by-law by a municipality.
Nothing contained herein shall be construed as limiting the power and authority of
cities and towns to regulate the use of land, structures or buildings through by-law or
zoning ordinance.
(Emphasis added.)
Thus, under G.L.c. 40A, Sec. 9A, the City may adopt a zoning ordinance requiring any
would-be operator of the uses enumerated in the statute to secure a special permit,
under the procedures specified in the statute, and may In such ordinance or permit:
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09/15/03 MON 18:35 FAX 9787900072 JOHN D KEENAN 0005/037
1. state the specific improvements, amenities or locations of proposed uses for
which such permit may be granted; and
2. provide that the proposed use be a specific distance from any district designated
by zoning ordinance:
(i) for any residential use; or
(ii) from any other adult bookstore or adult motion picture theatre; or
(iii) from any establishment licensed under the provisions of section twelve of chapter
one hundred and thirty-eight (alcoholic beverages).
G.L.c. 138 regulates alcoholic beverages. Sec. 12B thereof, "Operation of premises
licensed to sell alcoholic beverages; nudity," provides as follows:
In any city or town which accepts the provisions of this section, no licensee, licensed
under the provisions of section twelve, shall suffer or permit any person to appear on
said licensed premises in any manner or attire as to expose to public view any portion
of the pubic area, anus, vulva or genitals, or any simulation thereof, or shall suffer or
permit any female to appear on licensed premises in such manner or attire as to
expose to view any portion of the breast below the top of the areola, or any simulation
thereof. Any violation of the provisions of this section shall be enforced by the
alcoholic beverage control commission and the local authorities.
This statute obviously vests enforcement authority in the local licensing board. Be
aware, however, that its enforceability was seriously curtailed by the decision of the
Supreme Judicial Court in Cabaret Enterprises, Inc. v. A.B.C.C., 393 Mass. 13 (1984)
(held: free speech provision of State Constitution (M.G.L.A. Const, Pt, 1, Art. 16)
prohibited city licensing board from revoking establishment's all-alcoholic beverages
license on grounds that nude dancing violated this section prohibiting nudity on
licensed premises, where the dancing was not alleged to be obscene, patrons were
forewarned of nude dancing, there was no mingling between performers and patrons,
and there was no showing that establishments had been source of crime).
G.L.c. 140 is the general licensing statute which governs a wide range of businesses,
crafts, occupations, professions, and trades within the Commonwealth. Sec. 183A,
"Concerts, dances, exhibitions, public shows, etc.; application; suspension or
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Within thirty days next following the final date of such opportunity for a hearing the
licensing authorities shall, (a) grant the license or, (b) deliver to the applicant a written
notice denying the license and stating in writing the reasons for such denial. No
application having been denied as aforesaid and no similar application thereto may
be filed within one year of said denial except in the discretion of the licensing
authorities.
The licensing authorities shall grant a license under this section unless they find that
the license, taken alone or in combination with other licensed activities on the
premises, would adversely affect the public health, safety or order, in that the concert,
dance, exhibition, cabaret, or public show cannot be conducted in a manner so as to:
(a) protect employees, patrons, and members of the public inside or outside the
premises from disruptive conduct, from criminal activity, or from health, safety or fire
hazards; (b) prevent an unreasonable increase in the level of noise in the area
caused by the licensed activity or caused by patrons entering or leaving the premises;
or (c) prevent an unreasonable increase in the level of pedestrian or vehicular traffic in
the area of the premises or an unreasonable increase in the number of vehicles to be
parked in the area of the premises.
The licensing authorities may modify, suspend or revoke a license granted pursuant to
the provisions of this section after providing an opportunity for a hearing preceded by a
written notice to the licensee ten days prior to the hearing date. The licensing
authorities may not modify, suspend or revoke such license unless they find that the
license, taken alone or in combination with other licensed activities on the premises,
has adversely affected the public health, safety or order as stated in the preceding
paragraph. In any case in which the licensing authorities modify, suspend or revoke a
license, they shall notify the licensee in writing of such action and said written notice
shall be accompanied by a statement of reasons.
In order to preserve and protect the public health, safety, and order as aforesaid, the
licensing authorities may place conditions upon the license and promulgate rules and
regulations for such licenses. The licensing authorities may modify, suspend or
revoke a license pursuant to this section for any violation of their rules and regulations
or for any violation of law and may petition the superior court department of the trial
court to enjoin any violation of this section.
The licensing authorities of any city or town may adopt a rule requiring
licensees under this section to prohibit minors from attending any
concert, dance, exhibition, cabaret or public show of any description in
which or at which any person appears in a manner or attire as to expose
to public view any portion of the pubic area, anus, or genitals, or any
simulation thereof, or in which or at which any female person appears In
a manner or attire as to expose to public view any portion of the breast
below the top of the areola, or any simulation thereof.
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A license issued under this section, unless sooner revoked, shall expire on December
thirty-first of each year. The fee for any such license or for any renewal thereof shall
not exceed one hundred dollars.
The provisions of this section shall be applicable seven days per week; provided,
however, that no license under this section shall be granted to permit such activities,
except an athletic game or sport, or motion picture exhibited at a drive-in theatre
during the period from the last Sunday in April to the last Sunday in October, on
Sundays or before one o'clock in the afternoon on Sundays, without the written
approval of the commissioner of public safety, made in accordance with the provisions
of this section, upon written application to the said commissioner accompanied by a
fee of not more than five dollars, or In the case of an annual license by a fee of not
more than one hundred dollars.
In Venuti v. Riordan, 521 F. Supp, 1027 (D.C. Mass. 1981), the United States District
Court opined that the original version of this statute was constitutionally infirm because
of overbreadth since the statute, on its face, delegated complete discretion to licensing
authorities and contained no standards whatsoever, restrained protected as well as
unprotected expressions, granted officials the power to discriminate, and gave public
officials the power to deny use of a forum in advance of actual expression and
therefore constituted unconstitutional prior restraint. The statute was subsequently
amended to add the provision that the licensing authorities may deny licenses only
after a public hearing and only upon a finding that a granting of the license would
adversely affect the public health, safety or order, by reason of noise level, pedestrian
and vehicular parking, or criminal activity. See: Highland Tap of Boston, Inc, v. City of
Boston, 26 Mass.App.Ct. 239, 242, footnote 3 (1988). However, the same decision,
the Massachusetts Appeals Court also held that a drinking establishment which
offered nude dancing outside the district designated in the city zoning code as the
adult entertainment district was entitled to preliminary injunction preventing city from
taking any action to revoke or suspend its current entertainment license, or from
interfering with the nude dancing.
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The Constitutional Parameters
Our analysis of the constitutional parameters within which any local ordinance
purporting to restrict "adult entertainment" activities must operate begins with a pair of
U.S. Supreme Court decisions, Young v. American Mini Theatres, Inc., 427 U.S. 50
(1976), and City of Renton v. playtime Theatres, inc,, 475 U.S. 41 (1986). Both of these
decisions dealt specifically with regulation of "adult" movie theatres; however, their
holdings have been applied across the entire spectrum of "adult entertainment"
activities.
In Young, the operators of two adult motion picture theaters brought an action against
city officials for injunctive relief and a declaratory judgment of unconstitutionality
regarding two 1972 Detroit zoning ordinances that amended an "Anti-Skid Row
Ordinance" adopted 10 years earlier. The 1972 ordinances provided that an adult
theater may not (apart from a special waiver) be located within 1,000 feet of any two
other "regulated uses" or within 500 feet of a residential area. The term "regulated
uses" applied to 10 different kinds of establishments in addition to adult theaters,
including adult bock stores, cabarets, bars, taxi dance halls, and hotels. If the theater
was used to present "material distinguished or characterized by an emphasis on
matter depicting "Specified Sexual Activities"' or"Specified Anatomical Areas'' it was
an "adult" establishment.' The Court sustained the ordinances against constitutional
' Defined in the ordinance as: "i. Human Genitals in a state of sexual stimulation or arousal; 2. Acts of
human masturbation, sexual intercourse or sodomy; 3. Fondling or other erotic touching of human
genitals, public region, buttock or female breast."
E Defined in the ordinance as 01. Less than completely and opaquely covered; (a) human genitals, pubic
region, (b) buttock, and (c) female breast below a point immediately above the top of the areola; and 2.
Human male genitals In a discernibly turgid state,even if completely and opaquely covered"
" The ordinance regulated three types of"adult" establishments, defined, respectively,as follows: "Adult
Book Store" -"An establishment having as a substantial or significant portion of its stock in trade, books,
magazines, and other periodicals which are distinguished or characterized by their emphasis on matter
depicting, describing or relating to 'Specified Sexual Activities' or 'Specified Anatomical Areas,' (as
defined below), or an establishment with a segment or section devoted to the sale or display of such
material." "Adult Motion Picture Theater - "An enclosed building with a capacity of s0 or more persons
used for presenting material distinguished or characterized by an emphasis on matter depicting,
describing or relating to'Specified Sexual Activities'or'Specffled Anatomical Areas,' (as defined below)for
observation by patrons therein." "Adult Mini Motion Picture Theater' - "An enclosed building with a
capacity for less than 50 persons used for presenting material distinguished or characterized by an
emphasis on matter depicting, describing or relating to 'Specified Sexual Activities' or 'Specified
Anatomical Areas,' (as defined below),for observation by patrons therein."
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attack and held:
1. The ordinances as applied to these respondents do not violate the Due Process
Clause of the Fourteenth Amendment on the ground of vagueness, because:
(a) Neither of the asserted elements of vagueness had affected these respondents,
both of which propose to offer adult fare on a regular basis and alleged no ground for
claiming or anticipating any waiver of the 1,000-foot restriction;
(b) The ordinances would have no demonstrably significant effect on the exhibition of
films protected by the First Amendment. To the extent that any area of doubt existed as
to the amount of sexually explicit activity that may be portrayed before material could
be said to be "characterized by an emphasis" on such matter, there was no reason
why the ordinances would not be "readily subject to a narrowing construction by the
state courts."
2. The ordinances were not invalid under the First Amendment as prior restraints on
protected communication because of the licensing or zoning requirements. Though
adult films might be exhibited commercially only in licensed theaters, that was also
true of all films. That the place where films might be exhibited was regulated did not
violate free expression, the city's interest in planning and regulating the use of
property for commercial purposes being clearly adequate to support the locational
restriction. Regarding this last point, the Court explained:
The remaining question is whether the line drawn by these ordinances is justified by
the city's interest in preserving the character of its neighborhoods. On this question we
agree with the views expressed by District Judges Kennedy and Gubow. The record
discloses a factual basis for the Common Council's conclusion that this kind of
restriction will have the desired effect. it is not our function to appraise the wisdom of its
decision to require adult theaters to be separated rather than concentrated in the same
areas. In either event, the city's interest in attempting to preserve the quality of urban
life is one that must be accorded high respect. Moreover, the city must be allowed a
reasonable opportunity to experiment with solutions to admittedly serious problems.
Since what is ultimately at stake is nothing more than a limitation on the place where
adult films may be exhibited, even though the determination of whether a particular
film fits that characterization turns on the nature of its content, we conclude that the
city's interest in the present and future character of its neighborhoods adequately
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supports its classification of motion pictures.
Id., at 71-72. In footnote 71, the Court noted that:
The Common Council's determination was that a concentration of "adult" movie
theaters causes the area to deteriorate and become a focus of crime, effects which are
not attributable to theaters showing other types of films. It is this secondary effect which
these zoning ordinances attempt to avoid, not the dissemination of "offensive" speech
° M,N.
Even so, in footnote 35 the Court cautioned: (114-
The situation would be quite different if the ordinance had the effect of suppressing, or
greatly restricting access to, lawful speech. Here, however, the District Court
specifically found that "(t)he Ordinances do not affect the operation of existing
establishments but only the location of new ones. There are myriad locations in the
City of Detroit which must be over 1000 feet from existing regulated establishments.
This burden on First Amendment rights is slight'.... f
Thus, Young established the principle that a municipality may, through the exercise of NV
its zoning power, regulate the time, place and manner in which "adult 1pra+
entertainment" may be exhibited, so long as (1) the content sought to be regulated
was not overbroad, i.e., was narrowly and precisely drawn, and (2) the ordinance did
not purport to, or have the effect of, absolutely banning the regulated activities. The
Court's further observation - that the ordinance was enacted in response to a genuine
concern, adequately supported by facts in the record, about the deleterious effects
which a concentration of "adult entertainment" activities could have upon the quality of
neighborhood life - was not explicitly made a further prerequisite to the constitutional
validity of the ordinance. However, as we will see, this third factor was destined to
loom large in succeeding cases.
Renton v. playtime Theatres, Inc., supra, built upon, and refined, the Young analysis.
Therein, the respondents purchased two theaters in Renton, Washington, with the
intention of exhibiting adult films and, at about the same time, filed suit in Federal
District Court, seeking injunctive relief and a declaratory judgment that the First and
Fourteenth Amendments were violated by a city ordinance that prohibited adult motion
picture theaters from locating within 1,000 feet of any residential zone, single- or
multiple-family dwelling, church, park, or school. The Supreme Court sustained the
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constitutionality of the ordinance and held that it was a valid governmental response to
the serious problems created by adult theaters and satisfied the dictates of the First
Amendment as explicated in Young v. American Mini Theatres, Inc. The Court
explained that since the ordinance did not ban adult theaters altogether, it was
properly analyzed as a form of time, place, and manner regulation. "Content-neutral"
time, place, and manner regulations are acceptable so long as they are designed to
serve a substantial governmental interest and do not unreasonably limit alternative
avenues of communication. In this regard, the Court found that the record
demonstrated that the Renton City Council's "predominate" concerns were with the
secondary effects of adult theaters on the surrounding community, not with the content
of adult films themselves.' This finding was "more than adequate^ to establish that the
city's pursuit of its zoning interests was unrelated to the suppression of free
expression, and thus the ordinance was a "content-neutral" speech regulation. The
Court stated that the Renton ordinance was designed to serve a substantial
governmental interest while allowing for reasonable alternative avenues of
communication. A city's interest in attempting to preserve the quality of urban life, as
here, must be accorded high respect. Although the ordinance was enacted without the
benefit of studies specifically relating to Renton's particular problems, Renton was
entitled to rely on the experiences of, and studies produced by, the nearby city of
"9n May 1980, the Mayor of Renton, a city of approximately 32,000 people located Just south of Seattle,
suggested to the Renton City Council that it consider The advisability of enacting zoning legislation
dealing with adult entertainment uses. No such uses existed in the city at that time. Upon the Mayor's
suggestion, the City Council referred the matter to the city's Planning and Development Committee. The
Committee held public hearings, reviewed the experiences of Seattle and other cities, and received a
report from the City Attorney's Office advising as to developments In other cities. The City Council,
meanwhile, adopted Resolution No. 2368,which imposed a moratorium on the licensing of'any business
... which.., has as its primary purpose the selling, renting or showing of sexually explicit materials' ....The
resolution contained a clause explaining that such businesses 'would have a severe Impact upon
surrounding businesses and residences.'° Id., at 44.
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Seattle and other cities.5 Nor was there any constitutional defect in the method chosen
by Renton to further its substantial interests. Cities may regulate adult theaters by
dispersing them, or by effectively concentrating them, as in Renton. Moreover, the
ordinance was not "underinclusive" for failing to regulate other kinds of adult
businesses, since there was no evidence that, at the time the ordinance was enacted,
any other adult business was located in, or was contemplating moving into, Renton. As
required by the First Amendment, the ordinance allowed for reasonable alternative
avenues of communication. Although respondents argued that in general there were
no "commercially viable" adult theater sites within the limited area of land left open for
such theaters by the ordinance, the fact that respondents must fend for themselves in
the real estate market, on an equal footing with other prospective purchasers and
lessees, did not give rise to a violation of the First Amendment, which does not compel
the Government to ensure that adult theaters, or any other kinds of speech-related
businesses, will be able to obtain sites at bargain prices.
"The record in this case reveals that Renton relied heavily an the experience of, and studies produced
by,the city of Seattle.in Seattle,as in Renton,the adult theater zoning ordinance was aimed at preventing
the secondary effects caused by the presence of even one such theater in a given neighborhood. See
Northend Cinema, Inc.v. Seattle, 90 Wash. 2d 7e9, 585 R2d 1153 (1978).The opinion of the Supreme
Court of Washington in Northend Cinema, which was before the Renton City Council when it enacted the
ordinance in question here, described Seattle's experience as follows:
The amendments to the City's zoning code which are at issue here are the culmination of a long period of
study and discussion of the problems of adult movie theaters in residential areas of the City.... f9he City's
Department of Community Development made a study of the need for zoning controls of adult theaters.
The study analyzed the City's zoning scheme,comprehensive plan, and land uses around existing adult
motion picture theaters... : /d.,at 711,585 P.2d, at 1155.
'[T]he [trial] court heard extensive testimony regarding the history and purpose of these ordinances. It
heard expert testimony on the adverse effects of the presence of adult motion picture theaters on
neighborhood children and community improvement efforts. The court's detailed findings, which include
a finding that the location of adult theaters has a harmful effect on the area and contribute to
neighborhood blight, are supported by substantial evidence in the record,' Id.,at 713, 585 P.2d, at 1156.
The record is replete With testimony regarding the effects of adult movie theater locations on residential
neighborhoods: /tl, at 719, 585 P.2d, at 1159.
We hold that Renton was entitled to rely on the experiences of Seattle and other cities,and in particular on
the "detailed findings" summarized in the Washington Supreme Court's Northend Cinema opinion, in
enacting its adult theater zoning ordinance.The First Amendment does not require a city,before enacting
such an ordinance,to 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.That was the case here."Id.,at 50-52
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In the aftermath of Young-Renton, it was clear that a zoning ordinance seeking to
regulate "adult entertainment" activities, in order to pass constitutional muster, must:
(1) be "content neutral," in the sense that it is aimed not at the restricted speech itself
but at the negative secondary consequences that flow from it; (2) serve substantial
governmental interests and be no broader than necessary to serve these interests;
and (3) leave open reasonable alternative avenues for communication of the
regulated speech.
We turn now to some Massachusetts decisions. One of the most important, decided
prior to Renton but apparently unaffected thereby, and still controlling precedent in this
Commonwealth, is Cabaret Enterprises, Inc. v. A.B.C.C., 393 Mass. 31 (1984). This
was not a zoning case but, instead, involved the power of the local and state liquor
licensing boards to suspend license, Therein, owners of establishments licensed to
sell alcoholic beverages brought an action challenging the constitutionality of G.L.c.
138, Sec. 12B, the state statute prohibiting nudity on licensed premises, and seeking
injunctive relief. The Superior Court enjoined suspension of the plaintiff's all-alcoholic
beverages licenses, and the Alcoholic Beverages Control Commission's request for
direct appellate review was granted. The Supreme Judicial Court held that the Article
16 of the Massachusetts Declaration of Rights, which is the free speech provision of
the Massachusetts Constitution, prohibited the city licensing board from revoking the
establishments' all-alcoholic beverages license under G.L.c. 138, Sec. 12B, where
the dancing was not alleged to be obscene, patrons were forewarned of nude
dancing, there was no mingling between performers and patrons, and there was no
showing that the establishments had been source of crime. En route to decision, the ,r
Court in effect held that Article 16 of the state constitution provides broader protection
to such activities than does the federal First Amendment:
in Commonwealth v. Sees, 374 Mass. 532, 536, 373 N.E.2d 1151 (1976), we
recognized that the Supreme Court had held that a State can ban nude dancing as a
part of its liquor license program without violating the United States Constitution. We
held, however, that art. 16 prohibited the application of an ordinance of the city of
Revere in such a way as to make criminal the employment of female dancers, clad
only in 'G-strings,' on premises licensed to sell alcoholic beverages. Id, at 537-538,
373 N.E.2d 1151. We reasoned that art. 16 does not expressly distinguish "between
free speech in a bar and free speech on a stage, and no provision of our Constitution
gives a preferred position to regulation of alcoholic beverages." Id. at 537, 373 N.E.2d
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1151. For the purpose of assessing the amount of protection to which nude dancing
is constitutionally entitled, we declined in Sees to distinguish between barroom-type
nude dancing and performances of greater artistic or socially redeeming significance.
We concluded that whatever the artistic merit of the performance might be, it could not
be suppressed in the circumstances presented by that case. We noted that we were
not there concerned with a topless waitress, with the imposition of nudity on an
unsuspecting or unwilling person, with performers mingling with other employees or
patrons, or with obscenity, Id. at 537-538, 373 N.E.2d 1151. The fair import of what we
said in Sees is that art. 16 does not permit the prohibition of non-obscene nude
dancing on licensed premises in the absence of a demonstrated countervailing State
interest.
Id., at 16-17.
Thus, In seeking to enact a local ordinance regulating "adult entertainment" activities,
a Massachusetts municipality must beware not only of the requirements of the federal
First Amendment but also of the more stringent requirements of Article 16 of the
Massachusetts Declaration of Rights.
The Cabaret holding was ratified by the Appeals Court In Highland Tap of Boston, Inc.
v. City of Boston, 26 Mass.App.Ct. 239 (1988). Therein, an eating and drinking
establishment sought a preliminary Injunction to prohibit the city from interfering with
its presentation of nude dancing, even though the establishment was located outside
of the city's "adult entertainment" district. The Superior Court denied the request for
injunctive relief, but the Appeals Court reversed and held that the eating and drinking
establishment was entitled to a preliminary injunction preventing city from revoking or
suspending its entertainment license, under G,L.c. 140, Sec. 183A, and from
interfering with its presentation of nude dancing. However, the holding in Highland
Tap was not entirely one-sided in favor of the establishment. The Court noted that the
case had not yet gone to trial and that all that was at stake was whether or not the
establishment was entitled to preliminary relief, pending the outcome of a trial on the
merits. The Court stated:
Although it would not be appropriate for us to rule finally on the complicated issues in
the case at this preliminary stage of the proceedings, we note that the constitutional
shortcomings found in the preexisting statutory scheme may have been cured.
Moreover, there is growing support for the right of municipalities through
the use of their zoning power to limit adult entertainment to certain
defined geographic areas. See Young v. American Mini Theatres, Inc., 427 U.S.
14
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09/15/03 MON 18:38 FAX 9787400072 JOHN D HEENAN 0015/037
50, 71-73, 96 S.Ct. 2440, 2452-53, 49 L.Ed.2d 310 (1976); Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 52, 106 S.Ct. 925, 931, 89 L.Ed.2d 29 (1966); Northend
Cinema, Inc. v. Seattle, 90 Wash.2d 709, 717-719, 585 P.2d 1153 (1978). We would
be hesitant to state, therefore, that Highland Tap is likely to prevail ultimately on the
merits of its constitutional claim insofar as it seeks to prevent the city's licensing
authorities from holding a hearing to consider the factors outlined in G.L. c. 140, Sec.
183A (7th par.), and to determine whether to grant the club's application for a license
to provide entertainment including nude dancing. Highland Tap, however, may have
meritorious statutory claims regarding the scheduling requirements for a public
hearing concerning a license and the ability of the commissioner to enforce zoning
requirements. These issues, as well as the constitutional claims, are best resolved at
trial_
Id., at 242-243 (emphasis added). The Court concluded by affirming the right of the
local liquor licensing board to hold a public hearing to consider the health and safety
factors enumerated In G.L.c. 140, Sec. 183A.
The latest in the series of significant Massachusetts precedents on this topic is T& D
Video, Inc. v. Revere, 423 Mass. 577'(1996). Therein, an adult video store brought an
action challenging the city's adult entertainment ordinances after its permit application
was denied by city zoning board of appeals. The Superior Court granted the store's
motion for preliminary injunction. After review was sought in the Appeals Court, the
Supreme Judicial Court granted city officials' application for direct review. The
Supreme Judicial Court held that; (1) the preliminary injunction restraining
enforcement of the ordinances preventing opening and operation of the video store or
the store's sate of nonobscene adult videos and related goods was warranted; (2) the
city failed to show that its ordinances, even if content-neutral, were designed to serve a
substantial governmental interest; and (3) the ordinances did not meet the
requirement that content-neutral restrictions on protected speech provide alternative
avenues of communication that are not unreasonably unlimited. This decision is of
obvious interest to us, for it squarely analyzes a local ordinance of the
sort that we are presently considering in light of the requirements of
Young-Renton, as adapted by state constitutional considerations.
On September 16, 1993, the mayor of Revere submitted to the city council a draft
proposal for ordinances that would impose adult entertainment zoning restrictions.
The city council adopted the proposed ordinances on November 8. Section 17.16.045
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09/13/03 MON 16:09 FAX 9787400072 JOHN D KEENAN 0016/037
of the adult entertainment ordinances provides that "[a]dult entertainment
establishments, adult bookstore[s], adult videostore[s], adult motion picture theatre[s]
and advertising signs or devices" may be allowed by special permit in the "I' district in
conformance with the following minimum criteria:
A. Adult Entertainment establishments, adult bookstore, adult videostore, adult motion
picture theatre and advertising signs or devices may not be located less than one
thousand feet from the nearest lot line of: each other; public or private nursery
schools; public or private day care centers; public or private kindergartens; public or
private elementary schools; public or private secondary schools; playgrounds; parks;
conservation areas; churches; residential uses; and residential districts.
B. A thirty foot wide landscaped strip shall be provided along the property line fronting
a public or private way.
C. Adult entertainment establishments, adult bookstores, adult videostores, adult
motion picture theatres and advertising signs or devices are to be limited to lots
greater than twenty-five thousand square feet but not more than forty thousand square
feet.
D. Adult entertainment establishments, adult bookstores, adult videostores, adult
motion picture theatres and advertising signs or devices may not be allowed within a
multiuse building or building containing other retail or consumer uses.
E. All advertising signs and adult entertainment uses, adult bookstores, adult
videostores and adult motion picture theatres shall not be located within one hundred
feet of a public or private way and must be set back a minimum of one hundred feet
from all property lines.
F. No adult use advertising sign shall contain any moving, flashing or animated lights,
or visible moving or movable parts.
Id., at 579. Sections 17.08.065 through 17.08.069 defined the terms used in Sec.
17.16.045. Id.
In its analysis of the ordinance, the Court did not quarrel with the assumption that it
satisfied the constitutional requirement of 'content neutrality," i.e., that it was primarily a
time, place, manner restriction. Id., at 580-581. However, the Court held that the
ordinance failed to satisfy the second and third of the Young-Benton criteria.
Concerning the requirement that the ordinance serve substantial governmental
interests, the Court had this to say:
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09/15/03 MON 16:59 M 9787400072 JOHN D KEENAN 0017/037
Evidence concerning the governmental interest underlying a time, place and manner
(content-neutral) ordinance is relevant only when it consists of information that the city
council considered in making its determination to enact the ordinance. Krueger v.
Pensacola, 759 F.2d 851, 855 (11th Cir.1985) ('The government must also show that
the articulated concern had more than merely speculative factual grounds, and that it
was actually a motivating factor in the passage of the legislation"). Baslardanes v.
Galveston, 682 F.2d 1203, 1215 (5th Cir.1982). More conclusions asserted after an
ordinance's enactment regarding the secondary effects of adult entertainment facilities
or merchandise are insufficient to show that the ordinance was designed to serve a
substantial governmental interest. See Mitchell v. Commissioner of the Comm'n on
Adult Entertainment Establishments of Del., 802 F.Supp. 1112, 1121 (D.Del.1992).
In the instant case, the judge observed that "Revere made no attempt to justify
its Adult Entertainment Ordinances by reference to the secondary effects
of sexually oriented businesses while the ordinances were under
consideration by the City Council. The legislative record is barren.
Neither did Revere seek to explain the intent and purpose of the
ordinances within the context of the Ordinances themselves. Revere's only
effort at defining the purpose and intent of the Ordinances came during this litigation,
well after enactment and enforcement of the laws." Our review of the record confirms
the soundness of the judge's conclusions. The judge did not abuse her discretion in
determining that the defendants failed to show that the adult entertainment ordinances
were "designed to serve a substantial governmental interest.' Renton v. Playtime
Theatres, Inc., supra at 47, 106 S.Ct. at 928.
Id., at 581-582 (emphasis added).
With regard to the third criterion, that an ordinance must leave open reasonable
alternative avenues for communication of the regulated speech, the Court was
similarly unimpressed:
Moreover, the judge was not satisfied that the ordinances meet the requirement that
alternative avenues of communication not be unreasonably limited. Renton, supra at
46-47, 106 S.Ct. at 928-929. She noted that the ordinances contain "minimum criteria"
to be met within a small area of Revere's "I" district (industrial zone) which "taken
together, all but foreclose the possibility of opening and operating any of
the enumerated adult uses in the city of Revere." The judge's conclusions in
this regard are supportable on the record. Thus, her evaluation of the ordinances as
denying T & D reasonable alternative avenues of communication stands.
\0 (?/
17
C�
09/13/03 MON 16:39 FAX 9787400072 JOHN D KEENAN 1?1018/037
Id., at 582 (emphasis added).'
"The Superior Court Judge's own discussion of the ordinance's failure to satisfy the second and third
criteria of Young-Renton was even more severe:
"The Revere ordinances appear unconstitutionally restrictive even under the Renton analysis for content-
neutral time, place and manner regulations. in Renton,the 1,000 foot restriction on the location of adult
theaters was the only restriction under consideration by the court. In contrast, the 'minimum criteria" of
the Revere ordinances contain, in addition to the 1,000 foot restriction, a requirement for a thirty foot
landscaped strip fronting on any private or public way, a lot size requirement of between 25,000 and
40,000 square feet, a prohibition against operating in a multi-use building, a 100 foot set-back
requirement, and a ban on certain types o1 signs. Also, under Revere's Ordinances all of the "minimum
criteria"must be met within a very small area within the"I"district or industrial zone. Even a Revere's 1,000
foot location requirement meets the Renton standard of allowing alternative avenues of communication,T
&D has shown it is likely that Revere's"minimum triter a,"taken together,all but foreclose the possibility of
opening and operating any of the enumerated adult uses in the city of Revere.
Moreover, where the ordinance in Renton applied only to "adult motion picture theater[s]," the Revere
ordinances treat all adult entertainment uses alike. The "minimum criteria" imposed in Revere apply
equally to adult movie theaters, live adult entertainment venues, video and book stores. Thus, while
certain of the"minimum criteria" may be justifiable for one type of adult entertainment use,they may be far
harder to justify when applied to a different adult use. The lot size requirement, for example, could
conceivably serve a legitimate governmental interest as applied to a live entertainment establishment or a
movie theater. But 1 see no reason why an adult video store should be required to occupy a lot of more
than 25,000 square feet and less than 40,000 square feet,when ordinary video stores are not subject to
the same restriction. Similarly, the thirty foot landscaped strip requirement could,possibly, be intended to
protect the public from unwittingly viewing the activities inside a live entertainment Venue, but there does
not seem to be a legitimate governmental interest in requiring the same for an adult video store. The multi-
use building restriction too may protect children or others from the sounds or sights coming from inside an
adult theater or entertainment venue, but it seems to serve no purpose when applied to a video store that
contains nothing more than cassettes displayed on shelves or racks.
t is clear that where a zoning ordinance impinges on protected speech, the city bears some burden of
establishing that the ordinance serves a substantial governmental interest, such as regulating the
secondary effects of the activity being abridged. Renton, 475 U.S. at 50. ... Here ... Revere made no
attempt to justify its Adult Entertainment Ordinances by reference to the secondary effects of sexually
oriented businesses while the ordinances were under consideration by the City Council. The legislative
record is barren. Neither did Revere seek to explain the intent and purpose of the ordinances within the
context of the Ordinances themselves. Revere's only effort at defining the purpose and intent of the
Ordinances came during this litigation,well after enactment and enforcement of the laws ....
In connection with the instant litigation. Revere offered the affidavit of Frank Stringi, the Director of
Planning and Community Development for the City of Revere. Mr. Stringi states that he drafted the
ordinance, and that "in Revere, we have found that the existence of adult uses contributes to
neighborhood deterioration and an increase in crime, including prostitution-' (Affidavit or Frank Stringi, at
para. 7.) Under the rule ...against post-hoc justifications of legislative intent, Mr. Slringi's affidavit simply
falls to add anything to Revere's position."
T& D video, Inc. v. Revere, 1994 WL 878938, Superior Court civil action no. 94-6216A(Dec.8, 1994)
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09/15/03 MON 18:40 FAX 9787400072 JOHN D IMNAN 8019/037
The lesson to municipal legislators from T& D Video is clear: all three of the Young-
Renton criteria will be rigorously and strictly applied in judging an ordinance that
attempts to regulate and restrict "adult entertainment" activities. Thus, such an
ordinance must:
(1) be "content neutral," in the sense that it is aimed not at the restricted speech itself
but at the negative secondary consequences that flow from it;
(2) serve substantial governmental interests and be no broader than necessary to
serve these interests; and
(3) leave open reasonable alternative avenues for communication of the regulated
speech,
Moreover, it must be absolutely clear from evidence in the record that the "negative
secondary consequences" which the ordinance seeks to guard against, and the
"substantial governmental interests" that it seeks to advance, were clearly documented
by facts of record that the local legislators had before them and, thus, in mind, at the
time that they adopted the ordinance. Put otherwise: the concerns must be genuine
and not merely rhetorical, and they must precede enactment of the ordinance, not
arise as mere afterthoughts when the ordinance is subsequently challenged.
New York City enacted an "adult entertainment" ordinance which recently withstood
both state and federal constitutional challenges under the Young-Renton analysis.
Although Massachusetts law was, obviously, not involved, both the substance of the
ordinance, and the history of its enactment, are of interest to us, for illustrative
purposes. Both the substance of the ordinance, and the history its enactment, are set
forth in Buzzetti v, City of New York, _ F.3d _, No. 2312, 97-7595 (2d Cir. 1998):
Prior to November 1994, New York City's zoning law did not distinguish between adult
entertainment and other commercial establishments. In late 1993, the Department of
City Planning (the "DCP") undertook an "Adult Entertainment Study" (the "DOP study")
to help the City Planning Commission (the `CPC" or the "Planning Commission')
determine whether, like many other municipalities, New York City should adopt zoning
regulations directed at adult entertainment establishments. This study was completed
in September 1994. The DOP study included both a survey of numerous studies
undertaken elsewhere - including Islip, New York; Los Angeles, California;
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09/15/03 MON 18:40 FAX 9787400072 JOHN D KEENAN U020/037
Indianapolis, Indiana: Whittier, California; Austin, Texas; Phoenix, Arizona; Manatee
County, Florida; New Hanover County, North Carolina; and the State of Minnesota -
and an examination of the nature and effects of adult entertainment establishments in
New York City, With respect to New York City, the DCP study referred to previous
studies of adult entertainment establishments conducted by other organizations,
including an August 1993 Chelsea Action Coalition and Community Board 4 study and
an April 1994 study by the Times Square Business Improvement District, as well as to
testimony taken at an October 1993 public hearing held by the Borough of
Manhattan's Task Force on the Regulation of Sex-Related Businesses. In addition, the
DCP conducted its own survey of adult entertainment establishments in New York City,
focusing principally on three types of establishments: adult video and book stores,
adult theaters, and topless or nude bars.
Based on these sources, the DCP study concluded that adult entertainment constituted
a serious and growing problem in Now York City. It noted that studies from other cities
had documented numerous "negative secondary impacts" of such establishments,
including "increased crime rates, depreciation of property values, deterioration of
community character and the quality of urban life." DCP Study at 67. These effects
were consistent with the experience of those areas of New York City marked by high
concentrations of adult entertainment establishments, the study concluded. Even in
areas where adult establishments were not heavily concentrated, residents,
businesses, and community leaders feared the consequences of possible future
proliferation. The DCP study found that there had been a sharp increase in the overall
number of adult entertainment establishments in New York City in the previous 10
years, including a 26 percent increase in topless/nude bars. The DCP therefore
recommended special zoning restrictions on adult entertainment.
In November 1994, the New York City Council approved a one-year interim zoning
moratorium on the opening or enlargement of adult establishments. In March 1995, the
DCP and the New York City Council Land Use Committee filed a joint land use review
application to amend the city's zoning law to establish permanent zoning regulations
applicable to adult establishments. After receiving comments from the city's five
borough boards and 39 community boards, and after holding its own public hearings,
the CPC approved the proposed permanent regulations on September 18, 1995.
Based on the DCP study, other reports, and public testimony, the Planning
Commission concluded that there were "substantial adverse secondary effects
stemming from the location and concentration of adult uses" In New York, including
"the negative impact adult establishments have on economic development and
revitalization; their tendency to decrease property value, thereby limiting tax revenue;
[the] impediment (created) to economic activity; their tendency to encourage criminal
activity, particularly when the establishments are located in concentration; the
proliferation of illegal sex-related businesses; their damaging impact on neighborhood
character and residents including children; and the costs associated with maintaining
and patrolling areas." Following additional public hearings, on October 25, 1995, the
City Council approved the permanent restrictions, effective immediately. It is this set of
20
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09/15/03 MON 16:40 FAX 978740007E JOHN D HEENAN 1@021/037
permanent zoning restrictions ("the Zoning Amendment" or "the Amendment") that are
at issue in this case.
Id., pars. 3, 4 and 5.
1 do not suggest that it is absolutely essential that the City of Salem undertake a study
of the magnitude of New York's before it may lawfully enact an "adult entertainment"
ordinance. However, the New York experience is illustrative of the extent to which a
municipality may feel it needs to go in order to satisfy the second criterion of Young-
Renton. And clearly, the decision in T& D Video mandates that a Massachusetts
municipality must, in some fashion, document a genuine concern prior to enacting
such an ordinance.
The ordinance which New York enacted was fairly typical of the type:
The Zoning Amendment does not forbid the operation of any category of business.
Instead, it restricts the areas in which certain sexually-oriented businesses may
operate. The Zoning Amendment's regulatory scheme applies to all "adult
establishmentisl," which is defined to mean a commercial establishment, a "substantial
portion" of which is used as: an "adult book store," an "adult theater," an "adult eating
or drinking establishment," or some "other adult commercial establishment" (or some
combination of these). Zoning Amendment, Sec. 12-10. Businesses fall into one of
these categories of adult establishments" if they "regularly feature" or devote a
"substantial portion" of their business to entertainment or material emphasizing
"spec'died anatomical areas" or "specified sexual activities." Id. For example, An adult
eating or drinking establishment is an eating or drinking establishment which regularly
features any one or more of the following:
(1) live performances which are characterized by an emphasis on "specified
anatomical areas" or"specified sexual activities'; or ...
(3) employees who, as part of their employment, regularly expose to patrons "specified
anatomical areas." and which is not customarily open to the general public during
such features because it excludes minors by reason of age.
And:
An adult theater is a theater which regularly features one or more of the following: ...
(2) live performances characterized by an emphasis on "specified anatomical areas"
or "specified sexual activities", and which is not customarily open to the general public
during such features because it excludes minors by reason of age.
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09/15/03 MON 16:41 FAX 9787400072 JOHN D KEENAN IM022/037
For purposes of this appeal, the following two definitions are pivotal:
"specified sexual activities" are: (i) human genitals in a state of sexual stimulation or
arousal; (ii) actual or simulated acts of human masturbation, sexual intercourse or
sodomy; or (iii) fondling or other erotic touching of human genitals, pubic region,
buttock, anus or female breast.
"Specified anatomical areas" are: (i) less than completely and opaquely concealed: (a)
human genitals, pubic region, (b) human buttock, anus, or (c) female breast below a
point immediately above the top of the areola; or (ii) human male genitals in a
discernibly turgid state, even if completely and opaquely concealed ....
Based upon these definitions, the Zoning Amendment regulates the locations at which
adult establishments may operate. In addition to the general ban on commercial
establishments in residentially-zoned areas of New York City, the Amendment
completely forbids adult establishments from operating In certain other specified areas
of the city. See Zoning Amendment, Secs. 32-01, 42-01. Moreover, in those areas
where adult establishments are permitted to locate, the establishments, subject to
certain exceptions, may not be located within 500 feet of any school, day care center,
or house of worship, nor within 500 feet of the edge of most residential areas. See id.
In addition, to prevent concentration of adult establishments, the Zoning Amendment
generally provides that no adult establishments may be located within 500 feet of any
other adult establishment. See id. A one-year transition period (with the possibility of
additional extensions of time) is provided for nonconforming adult establishments
existing at the time of enactment of the Zoning Amendment.
Id., pars. 6-19.
The foregoing ordinance, read in the light of the study which preceded its enactment,
was sustained by the Courts In: Stringfellow's of New York, Ltd. v. City of New York,
653 N.Y.S.2d 801 (N.Y. Sup. Ct. 1996), aff'd 663 N.Y.S.2d 812 (1st Dept. 1977), aff'd
N.Y.S.2d _, 1998 WL 77749 (N.Y. Feb. 24, 1998); in Suzzetti, supra; and in
Hickerson v. City of New York, _ F.3d _, Nos. 98-7269, 7270 (2d Cir. 1998).
Some note ought to be taken of the discussion in Buzzetti and in Hickerson of the third
prong of the Young-Renton analysis, to which we have thus far paid little attention, to
wit. the requirement that the ordinance leave open reasonable alternative avenues for
communication of the regulated speech. This requirement ensures that a municipality
does not, under the guise of regulation, enact and actual ban. Buzzetti:
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09/15/03 MON M41 FAX 978740007E JOHN D KEENAN Q023/037
Finally, there can be no doubt on this record that the Zoning Amendment allows for
"reasonable alternative avenues of communication" The Renton Court noted that
because the Renton ordinance left "some 520 acres, or more than five percent of the
entire land area of Renton, open to use as adult theater sites," even though little or
none of it might be "'commercially viable,"' "reasonable alternative avenues"
remained. 475 U.S at 53-54, 106 5. Ct. at 932. In comparison, as the district court
found in the instant case, "Eleven percent of New York City's total land area remains
as permissible locations for adult establishments to operate. The Zoning Amendment
certainly allows for alternative sites for adult establishments to operate." Buzzetti, 1997
WL 164284, at 5 n. 13. Furthermore, the DCP has estimated that the Zoning
Amendment "allow(s) for the operation of approximately 500 adult establishments in
New York City" in comparison to the approximately 177 adult establishments currently
operating in the city; "[a]ccordingly, the Amendment[] permit(s) all of the City's existing
adult establishments to continue to operate in the City, either at their current sites or at
new locations." See also Stringfellow's of New York, Ltd. v. City of NewYork, Nos. 17,
18, 19, _ N.Y.2d 1998 WL 77749, at 9-10 (Feb. 24, 1998) (uncorrected slip
op.).
Id., at par. 39. In similar vein, but in much greater detail, Nickson:
Plaintiffs' argument that federal courts apply a more stringent standard than the New
York courts applied to determine whether there are "reasonable alternative avenues of
communication" Is also unavailing. Indeed, the New York Court of Appeals
summarized the standard that federal courts have applied, and proceeded to apply
that very standard as the basis for its inquiry under the state Constitution. The court's
discussion merits quotation at length:
Relying on a formula derived from City of Renton v. Playtime Theatres.. .,the
federal courts have generally concluded that reasonable alternative avenues of
communication exist if there is sufficient land area open for use by adult
businesses "in all stages of development from raw land to developed, industrial,
warehouse, office and shopping space that is criss-crossed by freeways,
highways and roads" (id., at 53.54). Under Renton, land that is already
occupied by commercial and manufacturing facilities and undeveloped land
that is not for sale or lease is not to be automatically deemed unavailable.
Further, any reduction in profitability caused by a forced relocation Is not
relevant to the availability inquiry (see, City of Renton v. Playtime Theatres, [475
U.S.] at 53: Woodall v. City of EI Paso, 49 F[.]3d 1120,1124-25 [(5th Cir.)], cert[.]
denied[,] _ U.S. _,116 S.Ct. 516 [(1995)]; Grand Brittain, Inc. v. City of
Amarillo, Tex., 27 F[.]3d 1068,1070 [(5th Cir. 1994)]; see also, Town of Islip v.
Caviglia, [73 N.Y.2d 544,] 555, 560 [(1 989)] (areas of a municipality set aside for
adult uses need not be prime locations)). Rather, the Inquiry is limited to the
physical and legal availability of alternative sites within the municipality's
borders and whether those sites are part of an actual business real estate
market (see, Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1530-
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09/15/03 MON 18:41 FAX 9787400072 JOHN D MENAN IA024/037
31 [(9th Cir. 1993)], cert[.] deniedj,] 511 U.S. 1030 [(1994)]; see also, Woodall v.
City of EI Paso, supra; Alexander v. City of Minneapolis, 928 F.2d 278 [(8th Cir.
1991)1.
In determining whether proposed relocation sites are part of an actual business
real estate market, the courts have considered such factors as their accessibility
to the general public, the surrounding infrastructure, the pragmatic likelihood of
their ever actually becoming available and, finally, whether the sites are
suitable for "some generic commercial enterprise" (see [Topanga], 989 F.2d, at
1531). Notably, these considerations dovetail nicely with Islip's requirement that
there be "ample space available for adult uses after the rezoning" and no
showing of a substantial reduction in the total number of adult outlets or the
accessibility of those outlets to their potential patrons (73 N.Y,2d, at 555, 560).
With these considerations as a backdrop, we turn now to the specific facts and
contentions presented here.
Stringfellow's, _ N.Y.2d at _, 1998 WL 77749, at 9-10 ....
We find no ... reason to doubt that the New York Court of Appeals answered the same
question that would be dispositive under federal law. Plaintiffs' primary argument to
the contrary is that federal law requires municipalities to identify the specific physically
and legally available relocation sites. Plaintiffs have produced an affidavit from a land-
use planning consultant, Robert McLaughlin (the "McLaughlin Affidavit" or "Affidavit"),
which asserts that some of the land identified by the City as available for relocating
adult establishments is not realistically available, for a variety of reasons - some of the
land, for example, is allegedly occupied by "oil tank farms" and structures including
"numerous and large facilities of the New York City Sanitation Department."
McLaughlin "
Affidavit at 24 26. Unless U ess the City can precisely identify the physically
and legally available" sites to which the approximately 147 adult establishments that
will need to relocate can move, plaintiffs argue, the City has not carried Its burden of
proving that "reasonable alternative avenues of communication" exist under federal
law.
Plaintiffs argument suffers from several flaws. First w r
9 e are aware of no federal case,
and plaintiffs direct our attention to none, that requires municipalities to identify the
exact locations to which adult establishments may relocate, as opposed to Identifying
the general areas that remain available and proving that such areas contain enough
potential relocation sites that are "physically and legally available" to accommodate
the adult establishments. This is precisely the standard of proof to which the New York
Court of Appeals held the City. Clearly then, to second-guess that court's
determination of this issue would violate the full faith and credit statute.
After observing that "it is incumbent upon the municipal defendants to demonstrate that
sufficient alternative receptor sites are available," Stringfellow's, _ N.Y.2d at _,
1998 WL 77749, at 10, the New York Court of Appeals noted the City's evidence that,
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09/15/03 MON 18:42 FAX 9787400072 JOHN D KEENAN 16025/037
after excluding land identified by the City as being encumbered by properties unlikely
to be developed for commercial use, 4% of the total land area of the City remained
open to adult establishments. Maps prepared by the City reflected that, after factoring
in the Zoning Amendment's 500-foot buffer zones, over 500 potential sites remained
available. See id. Further, the New York Court of Appeals considered the City's
evidence that the zoning districts left open to adult establishments "permit a wide mix
of commercial, retail, entertainment and manufacturing uses," id., and that all of these
areas in Manhattan and 80% of the areas in the other boroughs of New York are within
a ten-minute walk from a subway line or major bus route, see id.
The court did not ignore plaintiffs' evidence - namely, the McLaughlin Affidavit - that
portions of the 4% of "unencumbered" land identified by the City were not realistically
available, but rather found this evidence insufficient to raise a material question of fact
regarding the availability of "reasonable alternative avenues of communication." The
court partially discredited the McLaughlin Affidavit because McLaughlin considered
land to be "unavailable" that, under Renton, is not to be excluded - such as industrial
areas, undeveloped land, and warehouse areas. See Renton, 475 U.S. at 53.54
(finding available land to be adequate where it included "acreage in all stages of
development from raw land to developed, industrial, warehouse, office, and shopping
space," and observing that the fact that the establishments "must fend for themselves
in the real estate market, on an equal footing with other prospective purchasers and
lessees, does not give rise to a First Amendment violation"); see also, e.g., Grand
Brittain, Inc. v. City of Amarillo, Tex., 27 F.3d at 1069-70 (holding that adult-use zoning
ordinance provided reasonable alternative avenues of communication even though
90% of prospective sites were on undeveloped land), The court also recognized that
while the McLaughlin Affidavit identified, within the 4% of purportedly "unencumbered"
land identified by the City, specific sites that were clearly not realistically available, this
was insufficient to cast doubt upon the availability of "reasonable alternative avenues
of communication" where the City had produced evidence showing that this land could
accommodate over 500 establishments under the terms of the Zoning Amendment,
approximately three times the number of establishments that currently exist:
The most significant flaw in McLaughlin's affidavit is the absence of any attempt
to quantify his observations or to make concrete allegations as to precisely how
many of the 500 potential receptor sites identified by defendants were, in his
estimate, unavailable.[fn6j To be sure, the affidavit lists a significant number of
sites that are pragmatically unavailable because their current uses are so
entrenched that they are unlikely to become part of the commercial real estate
market in the foreseeable future. Included in this category are such diverse sites
as those that house the northern half of Federal Plaza in Manhattan, the Clay Pit
Ponds State Park Preserve in Staten Island, a New York City fire house in
Brooklyn and a United Parcel Service facility in Queens. However,
McLaughlin's criticisms about various individual sites do not provide an
adequate counter to defendants' supported claim that within the available
acreage as a whole there are more than enough receptor sites to accommodate
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09/15/03 MON 16:44 FAX 978740007E JOHN D OMAN 1@026/037
the existing adult entertainment industry.
Stringfellow's, _ N.Y.2d at _,1996 WL 77749, at *11; see also Stringfellow's, 171
Misc.2d at 396, 653 N.Y.S.2d at 814 ("Even if the City's estimate overstates the
number of potentially viable relocation sites, there still remains ample space for more
than the existing numbers of adult establishments... . [N]othing in Renton, Islip or any
existing case law requires the City to identify specific sites that are actually available.");
cf. Woodall v. City of EI Paso, 49 F.3d at 1126 (stating, in response to complaints by
adult establishments as to the viability of particular sites, that "even if we agreed that..,
these sites suffered from defects so severe as to take them out of the commercial real
estate market and render them physically unavailable, there was no evidence that
surrounding sites suffered from the same impediments so as to render them likewise
unavailable").
In sum, there is no reason to doubt that the New York Court of Appeals applied the
same standard and answered the same questions that apply under federal law in
determining whether the Zoning Amendment provided for "reasonable alternative
avenues of communication." The argument that federal law would have required the
City to identify the precise sites to which adult establishments could relocate is not only
unsupported by any federal case law, but is belied by our recent decision in Buzzetti.
In Buzzetti, far from suggesting that the City's evidence was inadequate because it
was not site-specific, we held that"there can be no doubt on this record that the Zoning
Amendment allows for reasonable alternative avenues of communication" _ F.3d at
_,1998 WL 130866, at 8 (internal quotation marks omitted). Although we did not
have the McLaughlin Affidavit before us in Buzzetti, the McLaughlin Affidavit is only
relevant to whether plaintiffs have produced enough counter-evidence to cast doubt
on the City's evidence, and it does not change the fact that under federal law the City
was not required to identify precise relocation sites in order to prove the existence of
"reasonable alternative avenues of communication." The state courts' determination
that the McLaughlin Affidavit did not cast sufficient doubt on the City's evidence to
preclude summary judgment-based largely on the Affidavit's failure to quantify the
number of feasible sites, its reliance on premises that were invalid under Renton, and
the persuasiveness of the City's own evidence - does not, in short, represent a
departure from federal standards. The full faith and credit statute therefore bars
plaintiffs from relitigating the issue of alternative sites in federal court.
Id., at pars. 13-21.
With all of the foregoing as background, I herewith offer the text of a proposed °adult
entertainment" ordinance.
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Proposed Adult Entertainment Ordinance
Preamble
In the research and development of this Ordinance, the City Council has recognized
that there are some uses which, because of their very nature, create substantial,
adverse secondary effects upon the surrounding neighborhoods, particularly when
several such uses are concentrated within a given area. For the purpose of this
preamble, we will collectively refer to such uses as "adult entertainment activities"; the
said uses are further defined in the body of this Ordinance. Such substantial, adverse
secondary effects include, but are not limited to: the negative impact which adult
entertainment activities have on economic development and revitalization, their
tendency to decrease property values, thereby limiting tax revenues; the impediment
thereby created to economic activity; their tendency to attract and encourage criminal
activity; their tendency to proliferate, and to encourage the proliferation of illegal, sex-
related activities; their damaging impact on the character of the surrounding
neighborhoods, and upon the safety and well-being, and upon the feelings of safety
and well-being, of the residents and their minor children; and the increased costs
associated with maintaining and patrolling these areas. The primary purpose of the
City Council In developing and enacting this Ordinance is to alleviate and minimize
the aforesaid substantial, adverse secondary effects, by preventing the sort of
concentration of these uses within any given area which typically gives rise to the
same. Accordingly, the City Council hereby declares and decrees as follows:
1. Adult Entertainment Activities Restricted Generally
Notwithstanding any other provision of the Zoning Ordinance of the City of Salem
which may be to the contrary, and notwithstanding any other provision of the City Code
of the City of Salem which may be to the contrary, no business establishment of any
nature and description whatsoever shall perform, provide, or allow, permit or suffer to
be performed or provided, any adult entertainment activities, as hereinafter defined,
except by leave of a Special Permit as described hereinafter; and no such Special
Permit shall be issued except pursuant to the provisions of this Ordinance.
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2. Definitions
As used in this Ordinance, the following words shall have the following meanings:
Adult bookstore: an establishment having as a substantial or significant portion of
its stock in trade, books, magazines, and other matter which are distinguished or
characterized by their emphasis depicting, describing, or relating to sexual conduct or
sexual excitement as defined herein.
Adult entertainment activities: adult bookstore, adult motion picture theatre, adult
paraphernalia store, adult video store, establishment which displays live nudity for its
patrons.
Adult motion picture theatre: an enclosed building used for presenting material
distinguished by an emphasis on matter depicting, describing, or relating to sexual
conduct or sexual excitement as defined herein.
Adult paraphernalia store: an establishment having as a substantial or significant
portion of its stock devices, objects, tools, or toys which are distinguished or
characterized by their association with sexual activity, including sexual conduct or
sexual excitement as defined herein.
Adult video store: an establishment having as a substantial or significant portion of
Its stock in trade, videos, movies, or other film material which are distinguished or
characterized by their emphasis depicting, describing, or relating to sexual conduct or
sexual excitement as defined herein.
Establishment which displays live nudity for its patrons: any establishment
which provides live entertainment for its patrons, which Includes the display of nudity,
as that term is defined herein.
Nudity: uncovered or less than opaquely covered human genitals, pubic areas, the
human female breast below a point immediately above the top of the areola, or the
covered male genitals in a discernibly turgid state. For purposes of this definition, a
female breast is considered uncovered if the nipple or areola only are covered.
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09/15/03 MON 10:45 FAX 9787400072 JOHN D KEENAN Q029/037
Matter: any printed material, visual representation, live performance or sound
recording including but not limited to, books, magazines, motion picture films,
pamphlets, phonographic records, pictures, photographs, figures, statues, plays,
dances.
Performance: any play, dance, exhibit, or activity performed before one or more
persons.
Sexual conduct: human masturbation, sexual intercourse, actual or simulated,
normal or perverted, any lewd exhibitions of the genitals, flagellation or torture in the
context of a sexual relationship, any lewd touching of the genitals, pubic areas, or
buttocks of the human male or female, or the breasts of the female, whether alone or
between members of the same or opposite sex or between humans and animals, and
any depiction or representation of excretory functions in the context of a sexual
relationship. Sexual intercourse is simulated when it depicts explicit sexual
intercourse which gives the appearance of the consummation of sexual intercourse,
normal or perverted.
Sexual excitement: the-condition of human mate or female genitals or the breasts
of the female while in a state of sexual stimulation or the sensual experiences of
humans engaging in or witnessing sexual conduct or nudity.
Substantial or significant portion: a use or activity accounting for more than
twenty (20%) percent of any one or more of the following: stock-in-trade, display
space, floor space, or viewing time, movie display time, or entertainment time, all of the
foregoing being measured on a per-month basis.
Visual material: any motion picture film, picture, photograph, videotape, any book,
magazine, or pamphlet that contains pictures, photographs or similar visual
representations or reproductions. Undeveloped photographs, pictures, motion picture
films, videotapes and similar visual representations or reproductions may be visual
materials notwithstanding that processing, development or similar acts may be
required to make the contents thereof apparent.
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3. Special Pe or Adult Entertainment c i i 'e
(1) A Special Permit for adult entertainment activities may be issued only by the City
Council and only pursuant to, and in accordance with, the provisions of this Ordinance.
(ii) The City Council may by Special Permit allow adult entertainment activities only in
the District.
(iii) No adult entertainment activities shall be permitted within one thousand (1000)
lineal feet of any residential district or any residential use.
(iv) No adult entertainment activities shall be permitted within five hundred (500')
lineal feet of any other business establishment which has obtained a Special Permit
for adult entertainment activities.
(v) No adult entertainment activities shall be permitted within five hundred (500') lineal
feet of any establishment licensed under the provisions of G.L.C. 138, Sec. 12.
(vi) No Special Permit for adult entertainment activities shall be issued to any person
convicted of violating any of the provisions of G.L.c. 119, Sec. 63 and/or of G.L.c. 272,
Sec. 28.
(vii) For the purpose of determining compliance with items (iii), (iv) and (v) next
hereinabove, measurements shall be made from the boundary line of the lot or parcel
upon which the proposed adult entertainment activities are to occur which is nearest to
the affected residential district, residential use, or business establishment, as the case
may be, to the boundary line of the affected residential district, residential use, or
business establishment, as the case may be, which is nearest to the lot or parcel upon
which the proposed adult entertainment activities are to occur.
(vii) A Special Permit for adult entertainment activities shall expire one year from the
date of issuance, unless sooner revoked for cause as provided hereinbelow, and may
be renewed only upon application in accordance with the provisions of this Ordinance.
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09/15/03 MON 18:44 FAX 9787400072 JOHN D UZNAN /6031/037
(viii) If substantial use of any Special Permit issued for adult entertainment activities
has not commenced within one (1) year of the issuance of such Special Permit, or
within one (1) year of such time as may be required to pursue and await the results of
an appeal, if such appeal be taken, such Special Permit shall lapse and shall be null
and void. As used in this provision, "substantial use" has the meaning defined in G.L.C.
40A, Sec. 9 and the judicial decisions construing the same.
4. Applications
(i) All applications for a Special Permit shall be submitted to the City Clerk in the name
of the person or entity proposing to conduct an adult entertainment activity on the
business premises and shall be signed by such person and certified as true under
penalty of perjury. An original and four (4) copies of the complete application,
including all supporting materials, as described hereinbelow, shall be filed. All
applications shall be submitted on a form supplied by the city, which shall require the
following information:
a. For each applicant: Name, any aliases or previous names, driver's license number,
if any, social security number if any, and business, mailing, and residential address,
and business telephone number.
b. If a partnership, whether general or limited; and if a corporation: date and place of
incorporation, evidence that it is in good standing under the laws of Massachusetts,
and name and address of any registered agent for service of process.
c. Whether the applicant or any partner, corporate officer, or director of the applicant,
holds any other licenses under this Ordinance or any license for similar adult
entertainment or sexually oriented business, including motion picture theaters and
panoramas, from the city or another city, county or state, and if so, the names and
addresses of each other licensed business.
d. A summary of the business history of the applicant in owning or operating the adult
entertainment or other sexually oriented businesses, providing names, addresses and
dates of operation for such businesses, and whether any business license or adult
entertainment license has been revoked or suspended, and the reason therefor.
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09/15/03 MON 18:44 FAX 9787400072 JOHN D KEENAN Q032/037
e. For the applicant or any partner, corporate officer, or director of the applicant: any
and all criminal convictions or forfeitures within five years immediately preceding the
date of the application, other than parking offenses or minor traffic infractions including
the dates of conviction, nature of the crime, name and location of court and disposition.
f. For the applicant or any partner, corporate officer, or director of the applicant: a
description of business, occupation or employment history for the three years
immediately preceding the date of the application.
g. Authorization for the city, its agents and employees to seek information to confirm
any statements set forth in the application.
h. The location and doing-business-as name of the proposed adult entertainment
activity, including a legal description of the property, street address, and telephone
number, together with the name and address of each owner and lessee of the
property.
f. A blueprint showing the configuration of the premises for the proposed adult
entertainment activity, including a statement of the total floor space occupied by the
business, and marked dimensions of the interior of the premises. Performance areas,
seating areas, manager's office and stations, restrooms and service areas shall be
clearly marked on the drawing,
j. A site plan showing that the premises upon which the adult entertainment activities
are to be performed are not within one thousand (1000') lineal feet of any residential
district or any residential use, five hundred (500) lineal feet of any other business
establishment which has obtained a Special Permit for adult entertainment activities,
and/or five hundred (500) lineal feet of any establishment licensed under the
provisions of G.L.c. 139, Sec. 12.
(ii) An application shall be deemed complete upon the applicant's provision of all
information requested above, including identification of "none" where that is the correct
response, and the applicant's verification that the application is complete. The clerk
may request other information or clarification in addition to that provided in a complete
application where necessary to determine compliance with this chapter.
32
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09/15/03 MON 18:44 FAX 9787400072 JOHN D KEENAN Q033/037
(iii) A nonrefundable application fee in the amount of must be paid at
the time of filing an application in order to defray the costs of processing the
application.
(iv) Each applicant shall verify, under penalty of perjury that the information contained
in the application is true.
(v) If any person or entity acquires, subsequent to the issuance of a Special Permit, a
significant interest based on responsibility for management or operation of the
licensed premises or the licensed business, notice of such acquisition shall be
provided In writing to the city clerk, no later than 21 days following such acquisition.
The notice required shall include the information required for the original Special
Permit application.
(vi) The Special Permit, if granted, shall state on its face the name of the person or
persons to whom it is issued, the expiration date, the doing-business-as name and the
address of the licensed adult entertainment activity. The permit shall be posted in a
conspicuous place at or near the entrance to the adult entertainment activity so that it
can be easily read at any time the business is open.
(vil) No person granted a Special Permit pursuant to this chapter shall operate the
adult entertainment activity under a name not specified on the license, nor shall any
person operate an adult entertainment activity under any designation or at any
location not specified on the license.
(viii) Upon receipt of the complete application and fee, the clerk shall provide copies
to the police, fire, and health departments, and to the Building Inspector, for their
investigation and review to determine compliance of the proposed adult entertainment
activity with the laws and regulations which each department administers. Each
department shall, within 30 days of the date of such application, inspect the application
and premises and shall make a written report to the clerk whether such application
and premises comply with the laws administered by each department. No Special
Permit may be issued unless each department reports that the application and
premises comply with the relevant laws. In the event the premises are not yet
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constructed, the departments shall base their recommendation as to premises
compliance on their review of the drawings submitted in the application. Any Special
Permit approved prior to premises construction shall contain a condition that the
premises may not open for business until the premises have been inspected and
determined to be in substantial conformance with the drawings submitted with the
application. A department shall recommend denial of a Special Permit under this
subsection if it finds that the proposed adult entertainment activity is not in
conformance with the requirements of this chapter or other law in effect in the city. A
recommendation for denial shall cite the specific reason therefor, including reference
to all applicable laws.
(ix) A Special Permit shall only be issued following a public hearing held within sixty-
five (65) days after filing of an application with the City Council.
(x) The City Council shall act within ninety days following a public hearing for which
notice has been given by publication or posting as provided in G.L.c. 40A, Sec. 11,
and by mailing to all parties in interest. Failure by the City Council to take final action
upon an application for a Special Permit within said ninety days following the date of
public hearing shall be deemed to be a grant of the permit applied for. Approval of a
Special permit shall require a favorable vote by two-thirds of the City Council.
(xi) Any existing adult bookstore, adult motion picture theater, adult paraphernalia
store or establishment which displays live nudity for its patrons, or adult video store
shall apply for such Special Permit within ninety days following the adoption of this
Ordinance.
(xii) Any renewal of a Special Permit issued under the provisions of this Ordinance
will comply with all of the requirements applicable to an original application.
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5. ul tie of d t n in e t Act'vites
(i) No sign or other matter or visual material, of any nature whatsoever, which is
visible from the street or from any other external vantage point, shall contain any
photographs, silhouettes, pictorial representations, or language, depicting or in any
manner referencing any adult paraphernalia, nudity, sexual conduct, or sexual
excitement.
(ii) Admission to the premises must be restricted to persons eighteen (18) years of
age or older, and if the establishment is licensed to serve alcoholic beverages,
admission must be restricted to persons twenty-one (21) years of age or older.
(ill) Sufficient lighting shall be provided and equally distributed throughout the public
areas of the premises so that all objects are plainly visible at all times. A minimum
lighting level of 30 lux horizontal, measured at 30 inches from the floor and on 10-foot
centers is hereby established for all areas of the adult cabaret where members of the
public are admitted.
(iv) A managerial employee shall be on duty on the premises at all times that such
premises are open to the public. The name of the managerial employee shall be
prominently posted during business hours. Such managerial employee shall be
responsible for compliance with the provisions of this Ordinance and any and all other,
applicable ordinances or provisions of law.
(v) No member of the public shall be permitted at any time to enter into any of the
nonpublic portions of the establishment, with the exception that persons delivering
goods and materials, food and beverages, or performing maintenance or repairs to the
premises or to equipment on the premises, may be permitted into nonpublic areas to
the extent required to perform their said jobs or duties.
(vi) No establishment shall permit, suffer or tolerate the solicitation and/or
performance of prostitution, unlawful distribution and/or use of controlled substances,
and/or other illegal activities, by any of its employees or patrons, or by any other
person on the premises. Such "other illegal activities" include, but are not limited to,
any adult entertainment activities which are not included within the establishment's
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Special Permit.
(vii) Recordkeeping Requirements:
(a) All papers, records, and things required to be kept pursuant to this Ordinance, or to
any other provision of law, shall be open to inspection without notice by the City and its
agents during the hours when the premises are open for business. The purpose of
such inspections shall be to determine whether the papers, records, and things meet
the requirements of this Ordinance and/or any other provision of law.
(b) Each establishment shall maintain and retain for a period of two years the name,
address, and age of each person employed or otherwise retained or allowed to
perform on the premises as an adult entertainer, including independent contractors
and their employees, as an entertainer. This information shall be open to inspection by
the City and its agents, without prior notice, during hours of operation of the business.
(vii) Inspections. in order to insure compliance with this Ordinance all areas of the
premises which are open to members of the public shall be open to inspection by City
and its agents, without prior notice, during the hours when the premises are open for
business. The purpose of such inspections shall be to determine if the premises are
operated in accordance with the requirements of this Ordinance. it is hereby expressly
declared that unannounced inspections are necessary to insure compliance with this
Ordinance.
6. ;y =nsion or Revocation of Special Permit; father Remedies
(1) Upon notice and a hearing as provided by applicable law, the City Council may
suspend or revoke any Special Permit issued under the provisions of this Ordinance,
upon a finding, supported by a preponderance of the evidence, of any one or more of
the following:
(a) that the applicant has failed to meet any one or more of the requirements of this
Ordinance, or no longer meets any one or more of the requirements of this Ordinance,
or that the applicant has made a false, misleading or fraudulent statement of material
fact on the application for the Special Permit;
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(b) that the applicant or the establishment is in violation of any one or more provisions
of this Ordinance; and/or
(c) that the applicant or the establishment is in violation of any one or more provisions
of any other law governing the operation of the business of the establishment,
including, but not limited to, any law, rule or regulation pertaining to the service of
alcoholic beverages upon the premises, or to the licensure therefor.
(II) Public Nuisance. Any adult entertainment activity operated, conducted,
maintained, permitted or suffered in violation of this Ordinance or any other applicable
provision of law shall be, and the same is, declared to be unlawful and a public
nuisance. The city attorney may, in addition to or in lieu of any other remedies set forth
in this Ordinance, commence an action to enjoin, remove or abate such nuisance in
the manner provided by law and shall take such other steps and apply to such court or
courts as may have jurisdiction to grant such relief as will abate or remove such public
nuisance, and restrain and enjoin any person from operating, conducting or
maintaining an adult entertainment activity contrary to the provisions of this Ordinance
or any other applicable provision of law.
(iii) Additional Remedies. The remedies prescribed in this Ordinance are not
exclusive, and the City may seek any other relief, civil and/or criminal, that the law
provides for any violation of such ordinances_
7. Miscellaneous
(i) Nothing contained herein shall be construed as limiting the power and authority of
the City to otherwise regulate the use of land, structures or buildings In accordance
with other Ordinances or provisions of the Massachusetts General Laws.
(ii) Severability. If any section, subsection, paragraph, sentence, clause, phrase or
portion of this Ordinance is, for any reason, held invalid or unconstitutional by any
court of competent jurisdiction, such portion shall be deemed a separate, distinct, and
independent provision, and such holding shall not effect the validity of the remaining
portions of this Ordinance.
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