Showtime Entertainment, LLC v. Town of Mendon, et al. (Lawyers Weekly No. 10-113-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11770 SHOWTIME ENTERTAINMENT, LLC vs. TOWN OF MENDON & others.[1] Suffolk. March 5, 2015. – July 8, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Alcoholic Liquors, Entertainment. Constitutional Law, Alcoholic beverages, Public entertainment, Freedom of speech and press. Municipal Corporations, By-laws and ordinances. Zoning, Validity of by-law or ordinance. Certification of questions of law to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit. Thomas Lesser (Michael Aleo with him) for the plaintiff. Robert S. Mangiaratti (Brandon H. Moss with him) for the defendants. SPINA, J. We consider in the present case a challenge brought against a bylaw adopted by the town of Mendon (town) prohibiting the sale or presence of alcohol at adult entertainment establishments. Showtime Entertainment, LLC (Showtime), seeks to operate such an establishment within the town and to serve alcohol on the premises. It brought suit in Federal court seeking to invalidate the bylaw. The United States Court of Appeals for the First Circuit has certified the following questions to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981)[2]: “1. Do the pre-enactment studies and other evidence considered by [the town] demonstrate a ‘countervailing State interest,’ Cabaret Enters., Inc. v. Alcoholic Beverages Control Comm’n, 393 Mass. 13, 17 . . . (1984) sufficient to justify [the town’s] ban on alcohol service at adult-entertainment businesses? “2. If the ban is so justified, is it adequately tailored?” See Showtime Entertainment, LLC v. Mendon, 769 F.3d 61, 82-83 (2014) (Showtime). The certified questions presented to us by the Court of Appeals focus on two parts of the test employed to determine the constitutionality of “content-neutral” restrictions on expressive behavior as first outlined in United States v. O’Brien, 391 U.S. 367, 377 (1968). See Commonwealth v. Ora, 451 Mass. 125, 129 (2008). The four factors of the test are: (1) the regulation must be within the power of the government to enact; (2) the regulation must further an important or substantial governmental interest; (3) the government interest must be unrelated to the suppression of free expression; and (4) the restriction must be no greater than is essential to the furtherance of the government interest. O’Brien, supra. We answer the first […]