G. L. c. 272, § 16, may not constitutionally apply where there is no imposition of “lewdness or nudity on an unsuspecting or unwilling person”
How later courts described this case
- G. L. c. 272, § 16, may not constitutionally apply where there is no imposition of “lewdness or nudity on an unsuspecting or unwilling person”
- statute as applied to consenting adults is unconstitutional
Written by the judges who cited it.
The opinion
*148 Kaplan, J.
(dissenting in part with whom Tauro, C.J., joins). I believe the city council should be held to be without power to enact this ordinance. It is aimed at controlling the manner of carrying on a licensed business. That subject matter has been confided by a comprehensive State statute to a local licensing board and the Alcoholic Beverages Control Commission.
Immediately suggestive of a trespass by the city council on the province of the local board and State commission is the fact that § 13-26 of the ordinance states that “no license shall be held for the sale of alcoholic beverages to be served and drunk on the licensed premises where . . . [the listed] acts or conduct are permitted.” Then we have the more striking fact that the ordinance is nearly the same word for word as the regulations which were promulgated by the Boston licensing board and were found by this court to be within the subject matter competence of that local board for the very reason, as we said, that they were in the scope of “‘reasonable requirements’ with respect to ‘the conduct of business by any licensee. ’” Boston Licensing Bd. v. Alcoholic Beverages Control Comm’n, 367 Mass. 788, 795 (1975), quoting from G. L. c. 138, § 23, as amended through St. 1971, c. 477, § 3. The prohibitions of the ordinance, like those of the regulations in the Boston case, are directed solely against the management with respect to conditions on the licensed premises; the ordinance does not forbid or punish any act by employees, patrons, or performers. Violations of the ordinance by the licensee are punishable by fine; so also violation of license regulations may result in a fine. See G. L. c. 138, § 62. 1 So it seems to me that to uphold the authority of the city council to enact the present *149 ordinance is to validate the exercise of redundant and “inconsistent” power by the council against the intent of the Home Rule Amendment.
In this light it is perhaps unnecessary to point out that the ordinance interferes with that interaction and balancing of local and State policies envisaged by the State statute. If a licensee is aggrieved by the action of the local board in modifying, suspending, revoking, or can-celling his license as a result of a violation of license regulations, he may appeal to the commission; if the commission disapproves of the action it can remand the matter to the local board for further action; and if the local board fails to take the action recommended by the commission, the licensee may appeal again to the commission, which can then, after hearing, within certain limits issue a final decision. See G. L. c. 138, § 67. The ordinance is disruptive of this scheme of adjustment and in this sense, also, is “inconsistent.”
The conclusion of a lack of power in the city council is reinforced when we consider that the ordinance enters the field of censorship. For this a quite clear warrant of authority to legislate should be demanded. I do not think the city council can make the required showing.
But if the ordinance is not unauthorized for the reasons given, I would still hold it to be unconstitutional on its face as to its substance (a claim not disposed of in the Boston case). The case of California v. LaRue, 409 U. S. 109 (1972) (a six to three decision), may go far to foreclose a claim to that effect under the Federal Constitution, but as I suggested, concurring in Commonwealth v. Horton, 365 Mass. 164, 177 (1974), our own Declaration of Rights remains as an additional safeguard of the civil rights. On grounds of “overbreadth,” if nothing else, the ordinance seems to me offensive to the *150 guaranty of art. 16. Cf. Marshall, J., dissenting in the LaRue case, 409 U. S. at 123 ; Salem Inn, Inc. v. Frank, 522 F. 2d 1045 (2d Cir. 1975).
Violation of a license regulation may result in the modification, suspension, revocation, or cancellation of a license, see G. L. c. 138, § 64, whereas violation of the ordinance does not have that effect unless, indeed, § 13-26 of the ordinance is read in an imperative way. The record suggests, however, that the city council may seek to use *149 the violation of the ordinance (and, presumably, the declaration of § 13-26) as means of exerting pressure on the local board to take action against the license.