Opposition Brief — City of Revere, Massachusetts v. T&D Video, Inc. (No. 06-887)
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4 FILED
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e APR 27 2007
OFFICE OF THE CLERK |
No. 06-887 :
IN THE
Supreme Court of the Gnited States
CITY OF REVERE, ET AL.,
Petitioners,
v.
T&D VIDEO, INC., D/B/A MOONLITE READER,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME JUDICIAL COURT FOR
THE COMMONWEALTH OF MASSACHUSETTS
———*={{[={z=[{[{[]—Y=|[|==—=—[ ===
OPPOSITION TO PETITION FOR
A WRIT OF CERTIORARI
CHRISTOPHER DEMAYO
LEBOEUF, LAMB, GREENE
& MACRAE LLP
260 Franklin Street
Boston, Massachusetts 02110
(617) 748-6851
Dated: April 27, 2007
BATEMAN & SLADE. INC. BOSTON. MASSACHUSETTS
QUESTIONS PRESENTED FOR REVIEW
5 Is there any analytic distinction between
a court's refusal to award attorney's fees under 42
U.S.C. § 1988 because the fee request is so high as to
“shock the conscience” and a refusal to award fees
because the request is “outrageously excessive,” or
“grossly or intolerably inflated,” or “manifestly filed in
bad faith”? Or is the distinction merely semantic?
2(a). Does a complete ban on adult video
stores constitute a time, place, manner restriction?
2{b). May a municipality condition the right to
sell non-obscene adult videos on the sale of non-adult
videos?
2(c). Is a ban on adult video stores narrowly
tailored to curtail the secondary effects of adult
entertainment where no other methods of reducing
secondary effects have been previously attempted?
2(d). Is aban on adult video stores justified as
a compelling interest in curbing the secondary effects
of adult entertainment where the legislative record
evidences no investigation or findings of fact regarding
secondary effects?
CORPORATE DISCLOSURE STATEMENT
T&D Video, Inc. d/b/a Moonlite Reader is a
privately held Massachusetts corporation. Thaddeus
Drabkowski and Del Paone are the shareholders.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW .............0008. i
CORPORATE DISCLOSURE STATEMENT ............00-- ii
TABLE OF RTI ios os eo sees Vv
MUNICIPAL ZONING ORDINANCES INVOLVED ...... ]
STATEMENT OF THE CASE kisi oo iis hk. }
REASONS FOR DENYING THE WRIT ............:0000ee000- 7
I. THERE IS NO CIRCUIT SPLIT
REGARDING THE STANDARD
FOR DENYING A FEE REQUEST
MADE UNDER 42 U.S.C. § 1988 ......... 8
II. REVERE'S TOTAL BAN ON ADULT
VIDEO STORES VIOLATES THE
FIRST AMENDMENT .........0.0.s.csceeses. 14
A. A Ban is Not a Time, Place,
Manner Restriction ............00.. 15
B. The Ordinance
Unconstitutionally
Conditions the Exercise of
First Amendment Rights on
Compelled Speech .............+-«+ 17
C. The “Barren” Legislative
Record in this Case
Precludes Revere From
Proving a Compelling
Interest in Curbing the
Secondary Effects of Adult
SCETCRIIIONIL Sisici ice sicodaccesiens 22
iv
D. A Ban on Adult Video
Stores is Not Narrowly
Tailored to Reduce the
Secondary Effects of Adult
pe gh ts || cs ae ae 24
E. The Ordinance is
Unconstitutional Because it
was Enacted Specifically to
Prevent T&D fro... Opening
an Adult Video Store .............. 26
Ge OIE Gass sinindines dese ccdectic ics cho ban 28
| gy 1S EEE REA SO PISA AIRS CSG AAMT TRICE ES
Vv
TABLE OF AUTHORITIES
CASES:
Ark. Educ. Television Comm'n v. Forbes,
eh) a Me ke a da cv hcvGatsvico edShuscancxddeciesens 21
Boy Scouts of Am. v. Dale,
MP UF .tes OR CRD was vr ncs iad vccicdsraniovenessanesess 20
Brown v. Stackler,
612 F.2d 1057 (7th Cir. 1980)
EIR ED ESOC POR MSE OE ORE ORR TEE EES ENG Go 26031 12 33
Budget Rent-A-Car Sys., Inc. v. Consol. Equity,
LLC, 428 F.3d°717 (7th Cir. 2005)............ 12; t3
Case v. Unified Sch. Dist. No. 233,
£57 Fit 1295 CROUCH. TOG fo cccccccdcccevececs 13
City of L.A. v. Alameda Books, Inc.,
ee As oe eek: GR) asi apkteseacensscascatveracies passim
City of Renton v. Playtime Theaters, Inc.,
O75 41S; 41 CGO ck iitictcandassinrigce cer passim
Commonwealth v. Sees,
Sa I. Teche CLF hiivivkcikcdbedvvdacbotetapeniedensanede 3
DiFilippo v. Morizio,
Toe Tt aes Bak (ke Clr. TO6D) .o56iicissicssiniai canes 14
Envtl. Def. Fund v. Reilly,
} ¥.36 1254 (DiC. Cir. LOSS) ssc ceicncees 12, 13, 14
Fair Hous. Council of Greater Wash. v. Landow,
OS Fe Be PIs isk HCAS passim
Globe Newspaper Co. v. Beacon Hill Architectural
Comm'n, 100 F.3d 175 (1st Cir. 1996) .......... 19
en a ee nent Yt et LPI IEE
Hensley v. Eckerhart,
SGP US. 424 (LOGS) ovscesisccevsesacsscsccenss Net ara awe or 12
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group
of Boston, 515 U.S. 557 (19995) ................ 20, 21
Jordan v. United States Dep't of Justice,
691 F.2d 514 (D.C. Cir. 1982)...........s.c000 13, 14
Lewis v. Kendrick,
944 F.2d 949 (lst Cir. 1991).......... 9. 16, 11,12
Lorillard Tobacco Co. v. Reilly,
ae Abe Cae GUI AD incidents eccstdencnntgasscdiudevatois 21
Miami Herald Publ’g Co. v. Tornillo,
Me Eh BGT TET cinskvasiccisiedaciaiviscaccercsavonts 20
Mills v. Eltra Corp.,
GGS F260 760 (70s Cir. TOR isessccciseieecscvs ase. 14
Opinion of the Justices to the House of
Representatives, 349 Mass. 786 (1965)........... 3
Riley v. Nat'l Fed. of the Blind of N.C.,
OT UE TEE Ci eee siivncacesavecciccivavitvesienicineies 20
Schad v. Borough of Mount Ephraim,
I Cs TE CLE) ceces teas ereectsyuhcevadivevences 16, 18
Scham v. District Cts. Trying Criminal Cases,
168 FSG SSG (Oe Civ. FSS)... .5<ccsecccssacvscersee 10
T&D Video, Inc. v. City of Revere,
3: Mie. 1. tr. 627-5... csssicvcnescccsassccctees 4
T&D Video, Inc. v. City of Revere,
ROS Maes, BFF LAD iisiisscccdriasisnceins 4,22
Vii
Turner Broad. Sys., Inc. v. FCC,
OFF WS Geet fee bikincbcincken 21
United States v. O’Brien,
ER Sree SORT, CRUE ic dikcvccdudecediedickkedocccestaent 27
United States v. Playboy Entm't Group, Inc.,
Se EFS. IS CH ns ccccneceviniscsvsthaniasasien ie Be >
Va. Pharmacy Bad. v. Va. Citizens Consumer
Council, Inc., 425 U.S. 748 (1976) ................ 18
W. Va. State Bd. of Educ. v. Barnette,
EO AE: Ce Sa ae iis cevccisucsincavdasstcasscbuiwss 20
Wooley v. Maynard,
GO I FO CAB hssiidkiciciewacscitnn 20
Young v. Am. Mini Theaters, Inc.,
MET AT Shc WO CEG F GG vs cktncasicntecscesisevensses 16, 18, 24
Zabkowicz v. W. Bend Co.,
400 F.2d 540 t7th Cir. 1966). ......05cccccsedsccasc. 12
viii
CONSTITUTIONAL PROVISIONS, CODES AND RULES:
United States Constitution
FIP OE IDs cAIIOINE ais in cercisivinccsnasson cs ceveeees passim
Massachusetts Declaration of Rights
PUREE FG iicciiniicncisshcsdies arent trcelee es 3
United States Code
ASUS i'F 1GBG sci scssciccccasaaes i, 7, 8, 10, 12,-13
Federal Rules of Civil Procedure
PRAMS BY is saberccivadepadvdconscsansedacsnusstouocovsecaetveess 13
Sraprwaie Court We 14 Y occe ccc ccdiccckcpscvesresestivwans 3,5.9
MUNICIPAL ORDINANCES:
Revere Zoning Ordinance §§ 17.08.65 through
BF IG Ss 6 BT 1G OGD oi iasipinccdicaivsasesicoss passim
MUNICIPAL ZONING ORDINANCES INVOLVED
Revere Zoning Ordinance §§ 17.08.65 through
17.08.069 and § 17.16.045, the provisions at issue in
this case, as enacted in 1993, are set forth at
Appendix A. These provisions, as amended in 1995,
are forth at Appendix B.
STATEMENT OF THE CASE
On September 14, 1993, the principals of T&D
Video, Inc., an adult book and video store doing
business as “Moonlite Reader” (“T&D"), sought a
business certificate from The Revere City Clerk.
Petition at 2a. The City Clerk asked one of the
principals to sign an “agrecmcnt” staling that the
business would not rent adult videos, but he refused.
Id. The City Clerk issued the business certificate
anyway. Id.
Having learned that T&D intended to open an
adult video store, Revere's City Councilors expressed
to the Building Inspector, Joseph Ferruzzi, “their
concern that there was an adult video store [that was]
going to be located in Revere” and asked him “not to
allow it.” See App. at 13a-14a (Ferruzzi confirming
that his deposition testimony in this regard is
accurate). Ferruzzi told the Councilors that such use
was not prohibited by Revere'’s existing ordinance and
that he could not prohibit an adult video store. Id. at
15a. In response, the City Councilors stated that
“{t]hey would get together with the City Planner and
draft one.” Id. at 16a.
Soon thereafter, Revere's City Planner, Frank
Stringi, set about drafting the ordinance. Stringi
focused the ordinance on adult content, treating all
types of adult entertainment, whether live nude
2
dancing or video rentals, the same. Stringi testified at
trial, “I don't differentiate between a lounge and a
video store. They still sell the same material, and
that’s sexually related.” Id. at 2la. Stringi further
testified that he was unaware at the time that three
video stores in Revere already included adult titles in
their selection; was unaware that these stores were
within 200 feet of residences; and that he had never
detected increased crime around these three stores.
Id. at 17a-18a, 23a-24a. At the time of drafting,
Stringi had not “put his hands” on any documentation
of his view that adult video stores would have the
same deleterious effect on the community as the
Squire Lounge, a nude dance entertainment
establishment in Revere. Id. at 2la-22a. Rather,
Stringi was guided by his own personal views,
including a belief that people who rent adult videos
contribute to prostitution. Id. at 23a.
Two days after T&D requested a business
certificate, on September 16, 1993, Revere’s Mayor
submitted to the City Council an “adult
entertainment” amendment to Revere’s zoning
ordinance, which placed numerous restrictions on the
location, size, and setbacks of lots containing adult
uses. See App. E. Former City Councilor Richard
Penn testified at the trial that he did not recall the
Council considering any documents relating to the
secondary effects of adult entertainment in Revere at
the time it enacted the ordinance. See App. 27a-28a.
Nor, Penn testified, did the Council request an
investigation of these purported secondary effects. Id.
at 28a-29a. Penn did not even discuss the ordinance
with its drafter, Mr. Stringi, before voting on it. Id. at
29a. Similarly, former City Councilor John Arigo
testified that his only conversation with Stringi about
the law on which the ordinance was based, the
Peabody, Massachusetts zoning ordinance, related to
the fact that it had been passed. See id. at 32a.
On November 8, 1993, the City Council adopted
the amendment as §§ 17.08.065 through 17.08.069,
and § 17.16.045, of the Revere zoning ordinance
(hereinafter, these provisions are referred to as the
“Ordinance”). See App. A.!
In August 1994, having completed its
renovations, T&D sought a sign permit for the store.
Petition at 4a-5a. Revere’s Building Inspector, Mr.
Ferruzzi, denied T&D’s application, stating that T&D
could not operate its store without violating the
Ordinance. Id. at 5a. After appealing unsuccessfully
to Revere’s zoning board of appeals, id., T&D promptly
filed suit and moved for a preliminary injunction
enjoining enforcement of the Ordinance. T&D brought
claims under the First Amendment and Article 16 of
the Massachusetts Declaration of Rights. Id. at 29a-
30a.?
! In its Petition, Revere neglects to include the
Ordinance in the appendix, despite the fact that its Petition is
based in part on the alleged constitutionality of the Ordinance.
This omission is in violation of the Court’s rules. See Sup. Ct.
Rule 14.1(f) (requiring inclusion of the “ordinances. . . involved in
the case” in the text of the Petition, or if the ordinance is lengthy,
in excerpt form in the appendix).
2 While the Massachusetts Appeals Court (the
“Appeals Court") rested the decision below on the First
Amendment, the Massachusetts Supreme Judicial Court has
indicated that the protections afforded speech by Article 16 are
broader than those afforded by the First Amendment. See
Commonwealth v. Sees, 374 Mass. 532, 536-37 (1978) (holding
that Article 16 protected nude dancing that might have been
proscribed under the First Amendment); see also Opinion of the
Justices to the House of Representatives, 349 Mass. 786, 792-793
(1965) (opining on legality of proposed law under Article 16, but
not the First Amendment, apparently because law could be invalid
under former but constitutional under latter).
4
After extensive briefing and a hearing, the trial
court preliminarily enjoined enforcement of the
Ordinance, noting the high likelihood that it imposed
an unconstitutional restraint on speech. T&D Video,
Inc. v. City of Revere, 3 Mass. L. Rptr. 427 (1994). The
Massachusetts Supreme Judicial Court affirmed entry
of the preliminary injunction in T&D Video, Inc. v. City
of Revere, 423 Mass. 577 (1996).
Revere, meanwhile, had apparently realized
that the interplay of setback and lot size restrictions
in the Ordinance made it geometrically impossible to
open an adult use anywhere in Revere. Petition at 4a.
On May 1, 1995, Revere amended the Ordinance to
reduce the setback requirements and expand the
range of allowable lot sizes. See App. B.
Following affirmance of the preliminary
injunction, extensive discovery ensued from 1996 to
1999, including T&D’s deposing members of the
Revere City Council. After T&D's motion for summary
judgment was denied, a bench trial was held in
August 2002. Two experts on land use testified on
T&D’s behalf that the Ordinance foreclosed virtually |
all locations for an adult video store to operate in
Revere. Petition at 7a. Revere’s city planner, Mr.
Stringi, testified to dispute this testimony. See, e.g.,
App. D. The trial court issued its ruling on
October 23, 2002, holding that the Ordinance violated
the First Amendment because it left inadequate
alternative avenues of communication. Petition at 6a-
10a. Specifically, the trial court credited T&D's
experts’ testimony that the Ordinance limited adult
uses to a single location in Revere: a contaminated oil
tank farm that was patently unsuitable for operation
of a retail store. -Id. at 7a. Defendants were
permanently enjoined from enforcing the Ordinance.
Id. at 10a.
5
Additionally — in language that Revere
inexplicably redacted from the copy of the decision
reproduced in the appendix to its Petition — the trial
court held that Revere had “directed the Ordinance
specifically at T&D.” See App. H for an unredacted
copy of I 3 of the trial court’s Conclusions of Law.
T&D filed a petition for attorney's fees and costs
on January 16, 2003. After briefing and a hearing at
which two expert witnesses testified on behalf of T&D
and were cross-examined, on February 9, 2004 the
trial court ruled that T&D was entitled to $915,027 in
reasonable attorney's fees, expert fees, and costs. See
Petition at 12a-25a. In his decision, the trial judge
found it “patently obvious” that
Revere was never interested in resolving
this case through settlement’ or
alternative dispute resolution, and that
this attitude, politically engendered,
obtained long after it was apparent that
its actions in framing and attempting to
enforce unconstitutional zoning
regulations enacted for the sole purpose
of ‘zoning out’ T&D Videos [sic] proposed
use of its premises as an adult
entertainment video and bookstore, were
patently illegal.
Id. at 22a-23a.
Revere appealed, but the Appeals Court
affirmed the holding that the Ordinance was
unconstitutional and entry of the permanent
3 This Court's Rule 14.1(h) does not permit a party
to submit excerpts of the relevant opinions below. The Court can
hardly determine whether a particular decision merits a writ of
certiorari when portions of that decision have been selectively
excised.
6
injunction. See id. at 26a-53a. The Appeals Court
held that there was ample evidence to support the
trial court’s finding that the Ordinance left only one,
unsuitable location for an adult use to locate in
Revere, and that this was inadequate under the
Court's “time, place, manner” jurisprudence. Id. at
38a-40a.
With respect to the fee award, the Appeals
Court. rejected Revere’s argument that T&D's initial
request for attorney's fees was so high that T&D, asa
penalty, should receive no fees. Analyzing the issue,
the Appeals Court held that
[a) judge may deny in its entirety a
request for an award of fees only if the
amount that the _ prevailing party
requests is so ‘unreasonable’ and
exorbitant that it ‘shocks’ the
conscience,’ or if counsel makes no good
faith effort to exclude from a fee request
hours that are excessive, redundant, or
otherwise unnecessary.
Id. at 42a. As authority for this proposition, the
Appeals Court cited decisions from the First, Fourth,
Fifth, and Seventh Circuit Courts of Appeals. Id.
While the court found that T&D's fee request did not
meet this standard, it did find that the $915,027 in
fees awarded was too high and remanded this issue to
the trial court. Id. at 43a-53a.
Revere subsequently applied to the
Massachusetts Supreme Judicial Court for further
appellate review, but that court denied Revere’s
application by order dated September 28, 2006. Id. at
58a.
7
REASONS FOR DENYING THE WRIT
The Petition raises no substantial issues. In
the proceedings below, Revere failed to raise its
argument regarding the purported “circuit split” as to
the standard for denying fees requested under § 1988.
The issue is chimerical, in any event. All of the courts
that Revere mentions in its Petition exercise their
discretion to deny fees when they consider the fee
request grossly excessive. The fact that they use
synonymous, but not identical, phrases to describe
this excessiveness is of no significance. Indeed, the
cases Revere describes as on opposite sides of a
“circuit split” cite to ome another as authority.
Revere’s argument is frivolous.
Revere’s First Amendment arguments are, if
anything, even less compelling. This Court has never
suggested that a complete ban on adult video stores is
permissible under its time, place, manner
jurisprudence. Revere’s content-based ban, though
masquerading as a zoning law, must be reviewed
under the strict scrutiny standard. Strict scrutiny is
also required because the Ordinance is effectively a
means of compelling speech (the sale of non-adult
videos). The Ordinance fails the strict scrutiny
standard on several grounds. The Ordinance was
unjustified because the legislative record is devoid of
any indication that Revere considered the secondary
effects of adult entertainment. A complete ban could
not be narrowly tailored to any governmental interest
beeause less drastic methods of regulating secondary
effects were available but never even attempted.
Finally, the trial court’s undisputed finding that
Revere passed its Ordinance to single out T&D must
doom the law.
8
I. THERE IS NO CIRCUIT SPLIT REGARDING
THE STANDARD FOR DENYING A FEE
REQUEST MADE UNDER 42 U.S.C. § 1988
Revere’s claim that a “circuit split” exists
between courts that have used the phrase “shocks the
conscience” in assessing whether to deny an
attorney's fee request made under § 1988, and courts
that have used other language, is without merit. It is
a transparent attempt to create a disputed legal issue
where none exists. Perhaps the best evidence that
Revere has manufactured the argument for this
Petition is the fact that it failed to raise it in the
proceedings below.
Revere was entirely silent on this issue in the
Appeals Court, even though the trial court cited to the
“shocks the conscience” standard in its fee award.
See Petition at 17a. In its brief to the Appeals Court,
Revere simply argued that the trial court had reached
the wrong result, not that it had applied the wrong
standard. See App. 1. Similarly, in its application to
the Massachusetts Supreme Judicial Court for further
appellate review, Revere never took issue with the
“shocks the conscience” standard employed by the
Appeals Court. See App. J. To the contrary, Revere
embraced that standard, lamenting that “the
conscience of the Appeals Court needs sharpening.”
App. at 45a. Both Revere's Appeals Court brief and its
application for further appellate review cite Fair Hous.
Council of Greater Wash. v. Landow, 999 F.2d 92
(1993), a Fourth Circuit case that Revere thought good
law as of last fall but now claims was erroneously
decided. While Revere argues in its Petition that the
Appeals Court and the Fourth Circuit are aligned on
the wrong side of a “circuit split,” in the courts below
it argued that the trial court and Appeals Court had
disregarded the teachings of Landow, a case that it
cited among the decisions of the other circuits. See
9
App. at 4la; ("Notwithstanding the admonition of the
First, Fourth, Fifth and Seventh Circuits, T&D, in this
case, submitted a grossly bloated, outrageously
excessive request for fees and costs.”); App. at 48a
(same).
It is little wonder that Revere disregarded this
Court’s Rule 14.1(g)(i) and failed to set forth in the
Petition the manner in which it preserved this federal
question in the proceedings below. Not only did
Revere fail to raise the question, it took a position in
those proceedings completely opposite of the one it
has adopted for this Petition.
Even had Revere not waived its right to raise
the issue of whether the “shocks the conscience”
standard is correct, its argument is_ utterlv
unpersuasive and raises no serious issues requiring
the Court’s consideration. Revere now argues that the
“shocks the conscience” language employed by the
Appeals Court and the Fourth Circuit is “too onerous,
does not conform with the spirit of prior decisions of
this Court, and conflicts with decisions of other
federal courts of appeal considering the issue.”
Petition at 8. Specifically, Revere claims that the
“shocks the conscience” standard used by the Appeals
Court below and by the Fourth Circuit in Landow, is
more stringent than, and in “conflict” with, the
standards set forth in Brown v. Stackler, 612 F.2d
1057, 1059 (7th Cir. 1980), and Lewis v. Kendrick,
944 F.2d 949, 958 (Ist Cir. 1991). Id. at 9-10.
The argument is baseless. To simply read the
decisions of the Appeals Court and the Fourth Circuit
is to see through Revere's argument. In the decision
below, the Appeals Court not only considered Landow
in assessing T&D's attorney's fee request, but also
considered and cited to Stackler and Kendrick. See
Petition at 43a (citing Stackler, 612 F.2d at 1059;
10
Kendrick, 944 F.2d at 958; Landow, 999 F.2d at 96;
Scham v. District Cts. Trying Criminal Cases, 148 F.3d
554, 558 (5th Cir. 1998)). The Appeals Court clearly
understood that the foregoing authorities all set forth
the same general standard for denial of fees under
§ 1988.
Similarly, in Landow, the Fourth Circuit held
that district courts could deny attorney's fees outright
when the request was “so excessive it shocks the
conscience of the court.” Id. at 97. As authority for
this proposition the Landow court cited Stackler and
Kendrick with approval and wrote, “we join the First
and Seventh Circuits in recognizing discretion in the
district courts to deny a fee request in its entirety in
civil rights litigation when the amount requested is so
excessive it shocks the conscience of the court.”
Landow, 999 F.2d at 97 (emphasis added).
If there is a circuit split here, it is a peculiar
one where all of the involved circuits believe
themselves to be in harmony.
All of the other decisions that Revere suggests
are also in “conflict” with the Appeals Court and the
Fourth Circuit reveal no such conflict. Rather, they
reveal the unremarkable fact that different courts
sometimes use different words when describing what
constitutes an exorbitant fee request. In its Petition,
Revere cites four different phrases that circuit courts
have employed in the course of considering § 1988 fee
requests: the Seventh Circuit may deny “intolerably
inflated” fee applications; the D.C. Circuit may deny
fee applications that are “manifestly inadequate,
‘grossly and intolerably exaggerated, or manifestly
filed in bad faith’; alternatively, the D.C. circuit may
deny fee applications that are “outrageously
unreasonable”; and the Tenth Circuit may deny a fee
application that is “outrageously excessive.” See
11
Petition at 9-10 (citations omitted). For reasons which
are left unstated, Revere concludes that the varying
phrases used by these different circuits are consistent
with one another, and with Kendrick, but inconsistent
with the language employed by the Fourth Circuit and
the Appeals Court. Id.
It is clear, however, that while each circuit has
articulated the standard differently, these semantic
differences do not alter the meaning of the standard.
The decisions indicate that, in spite of the courts’
different phrasing, their standards are all designed to
test the same thing: whether an award would
encourage plaintiffs’ attorneys to make unreasonable
demands. In Stackler, the Seventh Circuit explained
that an outright denial of fees is appropriate when the
denial will prevent attormevs from making
unreasonable demands without consequences:
If, as appellant argues, the Court were
required to award a reasonable fee when
an outrageously unreasonable one has
been asked for, claimants would be
encouraged to make _ unreasonable
demands, knowing that the _ only
unfavorable consequence of such
misconduct would be reduction of their
fee to what they should have asked for in
the first place. To discourage such greed
a severer reaction is needful, and the
District Court responded appropriately in
the case at bar.
612 F.2d at 1059.
Other courts of appeal subsequently followed
the Seventh Circuit's lead and denied attorney's fees
applications outright where an award of attorney's
fees would have encouraged unreasonable fee
12
applications. See Envtl. Def. Fund v. Reilly, 1 F.3d
1254, 1258 (D.C. Cir. 1993) (citing Stackler with
- approval and holding that it can deny an outrageously
unreasonable fee request in its entirety to prevent
plaintiffs attorneys from feeling free to make
unreasonable demands); see also Kendrick, 944 F.2d
at 958 (citing Stackler with approval and declaring
that an outright denial of fees “is strong medicine, but
for this blow-up of a routine [civil rights matter], and
inexcusable reaching for fees — to the burden of the
court — we believe it entirely appropriate.”); Landow,
999 F.2d at 97 (citing Stackler with approval and
“telegraphling]) a signal to attorneys .. . to act
responsibly when submitting petitions for attorneys’
fees.”).
Contrary to Revere's suggestion, the Fourth
Circuit's “shocks the conscience” standard does
indeed follow the spirit of this Court's decision in
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983), thata
prevailing plaintiff “should ordinarily recover an
attorney's fee unless special circumstances would
render such an award unjust.” (citation omitted). As
several circuits have noted, in consideration of
Hensley and the Congressional intent behind § 1988,
an outright denial of fees is a severe sanction that is
reserved only for fee requests that clearly abuse the
judicial process. See Zabkowicz v. W. Bend Co., 789
F.2d 540, 550 (7th Cir. 1986) (considering Hensley’s
holding that Title VII Plaintiffs should be awarded
attorney's fees absent special circumstances and
recognizing that wholesale denial of attorney's fees
requests “is a stringent sanction, to be reserved for
only the most severe of situations, and appropriately
invoked only in very limited circumstances.”) (citations
and internal quotation marks omitted); Budget Rent-A-
Car Sys., Inc. v. Consol. Equity, LLC, 428 F.3d 717,
718 (7th Cir. 2005) (“[Djenial is an appropriate
sanction for requesting an award that is not merely
13
excessive, but so exorbitant as to constitute an abuse
of the process of the court asked to make the award.”);
see also Jordan v. United States Dep't of Justice, 691
F.2d 514, 518 (D.C. Cir. 1982)(describing a total
denial of a fee request as a “purely prophylactic
measure”).4 The Fourth Circuit's “shocks the
conscience” standard is certainly in the spirit of the
Congressional intent and the case law interpreting
§ 1988.
Finally, even assuming there was a conflict
between the circuits’ standards, review of the Appeals
Court's decision would not be an appropriate exercise
of this Court's powers. Under any circuit's standard,
an outright denial of attorney’s fees is a matter of
discretion. See Budget Rent-A-Car, 428 F.3d at 718
(recognizing that under Stackler, the District Court
may order an outright denial of attorney's fees,
whereas if sanctions are sought under Fed. R. Civ. P.
11, the District Court shall order outright denial of
attorney's fees in certain circumstances); Landow, 999
F.2d at 96 (“A district court may, in its discretion, deny
a request for attorneys’ fees in its entirety when the
request, submitted pursuant to 42 U.S.C. § 1988, is
so outrageously excessive it ‘shock[s] the conscience of
the court.) (emphasis added); Reilly, 1 F.3d at 1258
(recognizing discretion to deny fees); Stackler, 612
F.2d at 1059 (exercising discretion to deny fees).
Revere cannot point to any abuse of discretion
committed by the Appeals Court, let alone an abuse of
discretion sufficient for this Court to overturn the
Appeals Court's decision. That is not surprising,
4 Even the less-restrictive penalty of a significant general
reduction in hours only occurs in a “rare case.” Case v. Unified
Sch. Dist. No. 233, 157 F.3d 1243, 1251 (10th Cir. 1998) (finding
that a general significant reduction in hours was not appropriate
where case concerned novel legal issues and was vigorously
litigated).
14
considering that several circuit courts have, in their
exercise of discretion, refused to deny attorney's fees
even where they found the fee request excessive. For
example, in Jordan the D.C. Circuit held that, absent
an outrageous or unprecedented fee request, if the
plaintiffs application “was by the District Court's
assessment somewhat excessive, the proper response
was a reduction of the rate by the court before
calculation of the lodestar.” 691 F.2d at 521; see also
Reilly, 1 F.3d at 1258 (“In a case of less egregious
overbilling, we may impose a lesser sanction, such as
awarding a fee below what a ‘reasonable’ fee would
have been in order to discourage fee petitioners from
submitting an excessive request”); Mills v. Eltra Corp.,
663 F.2d 760, 762 (7th Cir. 1981) (refusing to deny fee
request “in toto” even though claim was “enormous
and out of line” where attorney's “work was of
substantial value.”); DiFilippo v. Morizio, 759 F.2d 231,
236 (2d Cir. 1985) (ordering reduction in fee award
where fee request was “grossly” and “facially”
excessive).
iI. REVERE’S TOTAL BAN ON ADULT VIDEO
STORES VIOLATES THE FIRST AMENDMENT
Having argued doggedly (and unsuccessfully)
for nearly 12 years that its Ordinance provides ample
locations in Revere to open an adult video store,
Revere — now hoping to pique this Court's interest -
has dispensed with its unsubstantiated factual claims
and retooled its argument as a legal one. No longer
does Revere assert that its Ordinance permits adult
video stores to open within its city limits. It is indeed
a ban, Revere now argues, but it is a constitutional
one because a municipality may totally ban all adult
videos stores so long as the same or similar videos are
available at other stores in Revere (stores exempt from
15
the Ordinance because their inventory consists only
partly of adult materials).
As Revere would have it, there was no need for
it to have amended its Ordinance in 1995 so that
compliance became geometrically possible. Indeed,
there was no need to have drafted any restrictions on
setbacks, lot sizes, or the locations of properties
containing adult uses; that was apparently all just
window dressing to make the law look like a zoning
ordinance, but purely optional window dressing on
Revere’s part. Instead, Revere suggests, it was free to
have simply enacted a one-sentence provision banning
all video stores whose inventory contains over 20%
adult materials. Further, Revere claims that it would
have been justified in doing so under this Court's
time, place. manner jurisprudence. The argument
fails for multiple reasons.
A. A Ban is Not a Time, Place, Manner
Restriction
Revere’s suggestion that a complete ban on
adult video stores is a time, place, manner restriction
cannot be taken seriously. A time, place, manner
restriction is, by definition, nota ban. City of L.A. v.
Alameda Books, Inc., 535 U.S. 425, 443 (2002) (“[AJn
ordinance warrants intermediate scrutiny only if it is a
time, place, and manner regulation and not a ban.”)
(emphasis added). Revere does not cite a single case
of this Court — or any court — that even remotely
suggests that a municipality may constitutionally ban
all adult video stores from its _ borders. The
proposition runs counter to over 30 years of this
Court's decisions on the zoning of adult uses. This
Court has consistently held that municipalities must
provide adequate fora for establishments that provide
non-obscene adult live entertainment, show adult
16
movies, or sell or rent adult videos and books. See,
e.g., Young v. Am Mini Theaters, Inc., 427 U.S. 50, 62
(1976) (“There is no claim that distributors or
exhibitors of adult films are denied access to the
market or, conversely, that the viewing public is
unable to satisfy its appetite for sexually explicit fare.
Viewed as an entity, the market for this commodity is
essentially unrestrained."); Schad v. Borough of Mount
Ephraim, 452 U.S. 61, 75-76 (1981) (“To be
reasonable, time, place, and manner restrictions not
only must serve significant state interest but also
must leave open adequate alternative channels of
communication ... Here, the Borough totally excludes
all live entertainment, including nonobscene nude
dancing that is otherwise protected by the First
Amendment.”) (citations omitted); see also Alameda
Books, 535 U.S. at 443.
The case on which Revere purports to rest its
argument, City of Renton v. Playtime Theaters, Inc.,
475 U.S. 41 (1986), in fact refutes its claim that a
ban on adult video stores is permissible. In Renton,
the ordinance in question left over five percent of the
municipality's land, some 520 acres, available for
adult theaters. Id. at 53. The district court found this
acreage to consist of “ample, accessible real estate.”
Id. This Court upheld the ordinance in Renton
specifically because it provided ample locations for
adult theaters to operate:
In our view, the First Amendment
requires only that Renton refrain from
effectively denying respondents a
reasonable opportunity to open and —
operate an adult theater within the city,
and the ordinance before us easily meets
this requirement.
Id. at 54.
17
Revere's Ordinance, falling outside the ambit of
this Court's time, place, manner jurisprudence, must
be reviewed under the demanding strict scrutiny
standard applicable to content-based regulations.
Compare United States v. Playboy Entm't Group, Inc.,
529 U.S. 803, 813 (2000) (strict scrutiny required for
content-based restrictions on speech) with Alameda
Books, 535 U.S. at 440 (lower, intermediate scrutiny
standard applicable for content-neutral time, place
manner restrictions). Under the strict scrutiny
standard, the Ordinance must be narrowly tailored to
serve a compelling government interest. See Playboy,
529 U.S. at 813.
B. The Ordinance Unconstitutionally
Conditions the Exercise of First
Amendment Rights on Compellied
Speech
In hopes of finessing the strict scrutiny
standard Revere argues that, notwithstanding its total
ban on adult video stores, other stores in Revere sell
the same videos as T&D, therefore “there is no
suppression of speech” under the Ordinance. Petition
at 13. If there is no suppression of speech, Revere
suggests, then presumably the Ordinance passes
constitutional muster under any conceivable standard
of review.
This argument is a non sequitur. It assumes
that the rights of listeners — here, adult video viewers
— are the only rights at stake. It may be true that
those patrons can go elsewhere in the city to rent
adult videos, as Revere argues, or it may not be true.
Regardless, to focus on the listener exclusively is to
conduct only half of the analysis. The rights of
speakers — here, parties like T&D who wish to sell
18
adult videos — are at stake as well as the rights of
listeners.
It is clear under the case law that vendors such
as T&D have a _ constitutional right to offer
communicative works created by others for
distribution and consumption. Indeed, all of the
foregoing cases deal with the First Amendment rights
of the speaker-vendor: the party operating the adult
movie theater, not the moviemakers, see Young, 427
U.S. 50; Renton, 475 U.S. 41; the owner of the bar
offering nude dancing, not the dancers, see Schad,
452 U.S. 61; the proprietor of the adult bookstore, not
the authors. See Alameda Books, 535 U.S. 425. The
Petition simply glosses over a vast body of First
Amendment law on the rights of speakers. See also
Va. Pharmacy Bd. v. Va. Citizens Consumer Council,
Inc., 425 U.S. 748, 757 n.15 (1976) (“We are aware of
no general principle that freedom of speech may be
abridged when the speaker's listeners could come by
his message by some other means... ..”)
Taken to its logical extreme, Revere’s argument
would permit a ban on the sale of any adult videos
within its city limits, so long as the adult movies in
question were available through some channel other
than retail stores. Revere insinuates as much when it
claims that the movies T&D sells are available “from
other sources, including the internet.” Petition at 12.
(The Court is left to surmise that everyone in Revere
has intermet access.)
What Revere is really arguing in its Petition,
though backhandedly, is that it is permissible for a
municipality to condition a store's sale of adult videos
on its sale of non-adult videos. Revere attempted to
impose such a condition on the sale of adult videos
through its Ordinance. The Ordinance requires, in
effect, that for every sexually themed video that a store
19
offers, the store must stock over four non-sexually
themed videos (ie., for each adult title, over four
copies of King Kong or North by Northwest or Titanic
or some other non-adult fare). That is the only way a
store's inventory would contain less than 20% adult
materials and would escape the designation of a
banned “adult video store.” See App. B.
As authority for this novel proposition, Revere
cites a First Circuit case holding that a historic
district may lawfully ban newspaper’ vending
machines where other sources of distribution exist,
Globe Newspaper Co. v. Beacon Hill Architectural
Comm'n, 100 F.3d 175 (lst Cir. 1996). That case
might provide some precedent for Revere’s ban if
newspaper vending machines’ possessed First
Amendment rights. In Globe Newspaper, the only
speech rights at stake were those of the newspaper,
the party that created the speech. /d. at 182. Here,
by contrast, the vendor of the speech in question,
T&D, possesses rights independent of the rights of the
producers, directors, and actors who created the
speech. T&D's constitutional rights are impinged
when it is barred from distributing this speech to the
public. The same obviously cannot be said of a
vending machine. Had the law in Globe Newspaper
banned individuals from selling newspapers, then the
case might have offered some support for Revere's
Petition; but the law did no such thing.
Certainly, Globe Newspaper has no bearing on
Revere’'s suggestion that the government may
condition the exercise of one’s constitutional right (the
sale of adult videos) on compelled communication (the
sale of non-adult videos). Had the law in question
required the press to distribute other communications
in their vending machines, along with their
newspapers, then Globe Newspaper would have
offered some precedent for Revere; but, again, the law
20
did no such thing, and if it had, the First Circuit
would have struck it down under this Court's
precedents on compelled speech.
Those precedents are, remarkably, nowhere to
be found in the Petition. No doubt Revere failed to
mention this Court's extensive case law on compelled
speech because these decisions completely foreclose
the argument that Revere advances here. It has long
been clear that the First Amendment places a general
proscription on government-compelled speech. See W.
Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 640-
642 (1943). A corollary of this principle is that the
government may not condition the exercise of one’s
rights on one’s uttering compelled speech. In Wooley
v. Maynard, 430 U.S. 705 (1977), for instance, this
Court held that the state could not constitutionally
require those wishing to drive a car to display a
license plate espousing the state's ideology. See id. at
715 (finding repugnant that “driving an automobile, a
virtual necessity for most Americans,” was conditioned
on “displaying ‘Live Free or Die’ to hundreds of people
each day”).
If the “right” to drive a car cannot be
conditioned on one’s uttering compelled speech, then
necessarily the exercise of one’s constitutional right to
speak cannot be so limited. Numerous cases of this
Court so hold. See, e.g., Miami Herald Publ’g Co. v.
Tornillo, 418 U.S. 241 (1974) (law compelling
newspapers to publish replies to editorials violates the
First Amendment); Riley v. Nat'l Fed. of the Blind of
N.C., 487 U.S. 781 (1988) (law requiring professional
fund raisers to disclose portion of collections turned
over to charity during previous year violates the First
Amendment); Hurley v. Irish-Am Gay, Lesbian &
Bisexual Group of Boston, 515 U.S. 557 (1995) (public
accommodation law violates First Amendment to the
extent it requires parade’s organizers to include
21
marchers expressing ideological views that organizers
disagree with); Boy Scouts of Am. v. Dale, 530 U.S. 640
(2000) (anti-discrimination law violates the First
Amendment right to associate to the extent it compels
organization's inclusion of person whose ideological
point-of-view is contrary to organization’s).
Here, as noted above, even though T&D did not
create the movies it sells, its role as a vendor of these
materials is a form of speech protected under the First
Amendment. T&D's selection of which videos to carry
is an expressive activity, analogous to a _ public
television station's or cable programmer's selection of
which programs to carry. See Ark. Educ. Television
Comm'n v. Forbes, 523 U.S. 666, 674 (1998) (“When a
public broadcaster exercises editorial discretion in the
selection and presentation of its programming, it
engages in speech activity.”) (citation omitted); Turner
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 636 (1994)
(“Through original programming or by exercising
editorial discretion over which stations or programs to
include in its repertoire, cable programmers and
operators seek to communicate messages . . ..”)
(citation and internal quotation marks omitted). The
First Amendment does not “require a speaker to
generate, as an original matter, each item featured in
the communication.” Hurley, 515 U.S. at 570.
Thus, just as the government could not lawfully
compel the speakers in the foregoing cases to include
an item of speech in their selections and compilations,
Revere may not compel T&D to dilute its adult video
offerings by acquiring and purveying over four times
as many non-adult videos. Indeed Revere could not
lawfully compel T&D to stock even a single copy of a
non-adult video. See Lorillard Tobacco Co. v. Reilly,
533 U.S. 525, 567 (2001) (“There is no de minimis
exception for a speech restriction that lacks sufficient
tailoring or justification.”).
22
C. The “Barren” Legislative Record in
this Case Precludes Revere From
Proving a Compelling Interest in
Curbing the Secondary Effects of
Adult Entertainment
Revere cannot establish that it had a
compelling interest in controlling the secondary effects
of adult entertainment in Revere because the
Ordinance’s legislative record contains virtually no
data or research bearing on this topic.
The relevant facts regarding the enactment of
the Ordinance have been recounted in the Statement
of the Case, supra, and excerpts of key testimony are
set out in the appendices to this Opposition. Suffice it
to say, two days after the City Council learned that
T&D planned to open a bookstore, the Mayor
presented to the Council a draft Ordinance which was
largely a copy of ordinances enacted by other towns
(but with the setback requirements arbitrarily
increased). The evidence indicates that the Ordinance
was informed only by the Revere City Planner’s
intuitions and prejudices. See App. D. The record
contains no fact-finding by Revere regarding the
secondary effects stemming from its existing adult
uses (e.g., the Squire Lounge or the three video stores
that sold adult videos at the time T&D opened its
store). It is conceded that the City Council did not
attempt to obtain the investigations of the other cities,
on whose laws the Ordinance was patterned. See
App. at 28a-29a. Indeed, the City Council apparently
enacted the law with absolutely no information on the
subject of adult uses and secondary effects.
For these reasons, the Massachusetts Supreme
Judicial Court agreed with the trial court that “[t]he
legislative record is barren” in this case. T&D, 423
Mass. at 581.
23
Clearly, the secondary effects of adult
entertainment can create significant problems for
towns and cities, which towns and cities are entitled
to regulate with reasonable, content-neutral, time,
place, manner restrictions. See Alameda Books, 535
U.S. at 444-45 (Kennedy, J., concurring). It does not
follow from this observation that municipalities are
free to enact laws restricting speech, with virtually no
investigation of the ills that the laws are supposed to
cure, simply by invoking secondary effects. The
legislative record here falls far short even of the
standards this Court has set for municipalities
passing content-neutral zoning laws. While one
municipality may rely on another's data and research
when enacting an adult use zoning ordinance, see
Renton, 475 U.S. at 51-52, this Court has never
suggested that one municipality may simply enact the
text of another's ordinance without considering the
research and data that gave rise to the law; without
considering whether secondary effects in fact require
remediation; and with no effort to limit the
abridgement of protected speech. See id. at 51 (“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.”)
(emphasis added); Alameda Books, 535 U.S. at 438
(“This is not to say that a municipality can get away
with shoddy data or reasoning. The municipality's
evidence must fairly support the municipality’s
rationale for its ordinance.”) (emphasis added). The
“barren” record in this case fails this Court's
standards, as set forth in Renton and Alameda Books,
for justifying content-neutral, time, place, manner
restrictions.
24
Having failed to meet even the comparatively
low standard for justifying a content-neutral
restriction on speech, Revere necessarily failed to
establish a compelling interest in combating the
secondary effects of adult uses. Perhaps this was not
an insurmountable bar for Revere to meet; but its
slapdash legislative efforts fell far short.
D. A Ban on Adult Video Stores is Not
Narrowly Tailored to Reduce the
Secondary Effects of Adult
Entertainment
Revere fails the other prong of the strict
scrutiny standard as well. Revere cannot seriously
argue that a ban on adult video stores is narrowly
tailored to controlling the secondary effects of such
stores. The cases Revere cites suggest nothing of the
sort.
This Court has previously upheld a variety of
content-neutral restrictions that municipalities may
impose upon adult uses in an effort to curb the
secondary effects of such uses. These include
restricting the use to certain zoning districts, as well
as iniposing minimum distance requirements relative
to residential areas, schools, churches, and other
adult uses. See, e.g., Young, 427 U.S. 50; Renton, 475
U.S. 41; Alameda Books, 535 U.S. 425. Clearly Revere
was aware of these restrictions, as well as others,
such as those setting parameters for the size of the lot
in question; those requiring setbacks from the street
and other properties; or those restricting signage
outside the adult use. See Appendices A and B.
Yet Revere has never availed itself of any of
these methods. While it is true that Revere’s
Ordinance was styled as a zoning law, it was in fact a
25
ban, as Revere now concedes. Having never made any
attempt to pass lawful, content-neutral zoning
restrictions on adult uses, nor any attempt to research
the secondary effects of adult uses within the city,
Revere can hardly argue that only a ban on adult
video stores will suffice to curtail their secondary
effects. As noted in Part II(C) above, the legislative
record in this case would not even support a content-
neutral time, place, manner restriction on space, let
alone a ban on adult video stores.
Assuming arguendo that a ban such as the one
here could ever be constitutional, a city council would
have to engage in an extensive fact-finding process in
order to prove that the ban was narrowly tailored. The
city would have to investigate, among other things:
whether less restrictive approaches were available.
such as zoning laws; whether support existed for the
assertion that stores selling non-adult videos along
with adult videos experience diminished secondary
effects; whether support existed for setting a 20%
inventory of adult videos as the threshold at which the
store must be banned; whether the requirement that a
store sell 80% non-adult videos would raise the
barrier to entry for new stores planning to sell adult
videos and thereby suppress speech; and whether
stores selling non-adult videos along with adult videos
would increase the likelihood of minors gaining access
to adult videos.
Needless to say, one will not find the answer to
any of these questions in the Ordinance’s legislative
record, which, as noted above, is virtually devoid of
information.- Nor would one expect to find such
information in the record since, as noted, at the time
it passed the Ordinance in 1993, and throughout
much of this litigation, Revere was emphatic that its
law was nota ban. See App. at 22a. (Revere's City
Planner testifying that Ordinance was intended to
26
“stil allowi|] adult uses to exist within. the
community.”); App. E (Mayor of Revere opining to City
Council that “communities cannot totally prohibit
adult uses ...."), The legislative record could hardly
be expected to establish the need for a total ban when
the law's drafters have all along urged that it was not
a ban and that bans are, in fact, illegal.
Revere's suggestion that its ban on adult video
stores was narrowly tailored is absurd. Thousands of
municipalities across the country use content-neutral
zoning restrictions to control the secondary effects of
adult entertainment. Revere cannot seriously argue
that its ban on adult video stores is narrowly tailored
to achieve these same ends — particularly where it
has never even attempted to zone adult uses as other
cities and towns do. It is hardly surprising that the
Appeals Court disposed of Revere’s argument in a
footnote. See Petition at 39a n.8.
E. The Ordinance is Unconstitutional
Because it was Enacted Specifically to
Prevent T&D from Opening an Adult
Video Store
Finally, the Court should deny Revere's Petition
because it is clear that Revere passed the Ordinance
to prevent T&D from opening an adult video store.
The complete lack of fact-finding by Revere confirms
that the Ordinance was not designed as a general
measure to prevent the secondary effects of adult
entertainment, but rather as a means of zoning T&D
out of Revere. The trial court so found. See App. H;
see also Petition at 22a (holding that Revere's
“unconstitutional zoning regulations [were] enacted for
the sole purpose of ‘zoning out’ T&D Videos [sic]
proposed use of its premises as an_ adult
entertainment video and bookstore”).
1 SEERA OP pen ESO STR Pe noe aPC A nae TRAC Te
27
The Appeals Court did not disturb the trial
court's findings, though it held that “unspoken
legislative motivations” were irrelevant to _ its
constitutional analysis. Petition at 37a. In this
regard, the Appeals Court certainly erred. It is well-
settled that a regulation “is sufficiently justified if...
the governmental interest is unrelated to the
suppression of free expression.” United States v.
O'Brien, 391 U.S. 367, 377 (1968) (emphasis added);
see Playboy, 529 U.S. at 812 (“One sponsor of the
measure even identified appellee by name . . . Laws
designed or intended to suppress or restrict the
expression of specific speakers contradict basic First
Amendment principles.”); see also Renton, 475 U.S. at
54 (upholding ordinance where municipality had not
“used the power to zone as a pretext for suppressing
expression”) (citation and internal quotation marks
omitted).
The trial court’s undisturbed rulings are now
beyond review, and provide yet another basis for this
Court to deny the Petition. If a_ single
Congresswoman’s statement that a law will cover a
particular speaker evidences that law’s illicit purpose,
see Playboy, 529 U.S. at 812, then certainly the trial
court's rulings are conclusive evidence that the
Ordinance unconstitutionally singled out T&D.
28
CONCLUSION
The Petition for Writ of Certiorari should be
denied.
Respectfully submitted,
CHRISTOPHER DEMAYO
LEBOEUF, LAMB, GREENE
& MACRAE LLP
260 Franklin Street
Boston, Massachusetts 02110
(617) 748-6851
Dated: April 27, 2007
APPENDIX TABLE OF CONTENTS
APPENDIX A
An Ordinance Further Amending the
Zoning Ordinance of the City of
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APPENDIX B
City of Revere City Council Order No. CZ-
PFT Ee knvids iaticiecinetetodateiardiudbonere 5a
APPENDIX C
Excerpts of Trial Testimony of Joseph
Fernizzi (pp. 40-44) dated August
ie MEA. belinhachlctutvvelesedlatecumemcceseve 13a
APPENDIX D
Excerpts of Trial Testimony of Frank L.
Stringi (pp. 48-56) dated August
Fae SME 5c upiiuatebaisamncidsesrousiel tesetonsenis 17a
APPENDIX E
Letter from the City of Revere, Office of
the Mayor to Honorable City
Council, dated September 16,
WAI sscts.s Sous bv ccsssalinedeesacdismivasaceneniaaunans 25a
APPENDIX F
Excerpts of Trial Testimony of Richard
Penn (pp. 139-141) dated August
MA AMIE susaenesacsichadssinnndibabsapebecoutaater 27a
ii |
APPENDIX G
Excerpts of Trial Testimony of John Arigo
(pp. 146-149) dated August 22,
SMENGE sacasshuakiauesndacadeceabriess sy oisiivsnensotal 3la
APPENDIX H
Excerpt of Findings of Fact, Rulings of
Law, and Judgement, p. 9 ............04 35a
APPENDIX I
Excerpts of Brief for the Defendants-
Appellants City of Revere, et al.,
ON een patickavs che caniini Hees ude kexiasoess patos 37a
APPENDIX J
Excerpts of Application of Defendants-
Appellants City of Revere, et al.,
for Further Appellate Review, pp.
SR MET iesnloidig viescndinedadarectisbvasvectec 43a
APPENDIX A
AN_ ORDINANCE FURTHER AMENDING THE ZONING
ORDINANCE OF THE CITY OF REVERE
SECTION 1
That Title 17, Chapter 17.16, Section 17.16.040 of the
Revised Ordinance of the City of Revere be amended
by adding the following to the Use Regulation Table
under Business Uses:
ADULT ENTERTAINMENT ESTABLISHMENTS, ADULT
BOOKSTORE, ADULT VIDEOSTORE, ADULT MOTION
PICTURE THEATRE & ADVERTISEMENT SIGNS
RA RB RB1 RC RCI RC2 RD NB GB CB HB I PDD-1
NO NO NO NO NO NO NONONONONOSP NO
SE N
That Title 17, Chapter 17.16 of the Revised Ordinance
of the City of Revere be amended by inserting the
following new section:
Section 17.16.045 Adult Entertainment
Establishments Adult Bookstore, Adult Videostore
Adult Motion Picture Theatre & Advertisement Signs
or Devices within the | District. Adult entertainment
establishments, adult bookstore, adult videostore,
adult motion picture theatre and advertising signs or
devices erected, constructed, placed, altered,
converted or otherwise changed may be allowed by
special permit in the | 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 1000 (one thousand) feet from the
2a
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 30 ft. wide landscaped strip shall be provided
along the property line fronting a public or
private way.
Adult Entertainment Establishments, Adult
Bookstores, Adult Videostores, Adult Motion
Picture Theatres and advertising signs or
devices are to be limited to lots greater than
25,000 square feet but not more than 40,000
square feet.
Adult Entertainment Establishments, Adult
Bookstores, Adult Videostores, Adult Motion
Picture Theatres and advertising signs or
devices may not be allowed within a multi-use
building or building containing other retail or
consumer uses.
All advertising signs and adult entertainment
uses, adult bookstores, adult videostores, and
adult motion picture theatres shall not be
located within 100 ft. of a public or private way
and must be set back a minimum of 100 ft.
from all property lines.
No adult use advertising sign shall contain any
moving, flashing or animated lights, or visible
moving or movable parts.
3a
SECTION 3
Title 17, Chapter 17.08 of the Revised Ordinances of
the City of Revere is hereby amended by inserting the
following new section:
Section 17.08.065 Adult Entertainment
Establishment. “Adult Entertainment Establishment”
means any establishment which displays
entertainment which is distinguished or characterized
by its emphasis depicting, describing, or relating to
sexual conduct or sexual excitement as defined in
section thirty-one of chapter two hundred and
seventy-two.
Section 17.08.066 Adult Bookstore. “Adult Bookstore”
means an establishment having as a substantial or
significant portion of its stock in trade, rental or sale,
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.
Section _17.08.067 Adult Videostore. “Adult
Videostore” means an establishment having as a
substantial or significant portion of its stock in trade,
rental or sale, videos 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
two hundred and seventy-two.
Section 17.08.068 Adult Motion Picture Theatre.
“Adult Motion Picture Theatre” means a building used
for presenting materiel 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.
4a
Section 17.08.0069 Adult Use Advertisement Sign.
“Adult Use Advertisement Sign” means an advertising
sign or device which advertises an adult
entertainment use, adult bookstore, adult videostore
or adult motion picture theatre and/or advertises the
trade, rental or sale of material distinguished by an
emphasis on matter depicting depicting, describing, or
relating to sexual conduct or sexual excitement as
defined in section thirty-one of chapter two hundred
and seventy-two.
5a
APPENDIX B
City of Revere
City Council
Date: May 1, 1995
City Council Order No. CZ-95-2/95-222
Offered By Councillor Colarossi
PLAINTIFF'S
EXHIBIT
6
1-9-97
BE JT ORDAINED BY THE CITy COUNCIL OF THE
CITY OF REVERE AS FOLLOWS:
Section 1. Title 17, Chapter 17.08 of the Revised
Ordinances of the City of Revere is hereby amended by
deleting Sections 17.08.065, 17.08.066, 17.08.067,
17.08.068 and 17.08.069, and in place thereof, the
following new Sections are inserted:
17.08.065(A) Adult bookstore. “Adult bookstore”
means an establishment having substantial or
significant portion of its stock in trade, rental or sale,
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 seventy-two, M.G.L., and which
shall be deemed to include so-called sexual aids,
mechanical and non-mechanical stimulators and
objects fashioned to resemble or perform certain of the
functions of the human sexual organs and genitalia.
(C.O. 93-504 sec.3 (part))
6a
17.08.065(B) Adult entertainment
establishment. “Adult entertainment establishment”
means any establishment which displays
entertainment which is distinguished or characterized
by its emphasis depicting, describing or relating to
sexual conduct or sexual excitement as defined in
Section thirty-one of Chapter two hundred and
seventy-two, M.G.L. (C.O. 93-504 sec.3 (part))
17.08.065(C) Adult motion picture theater.
“Adult motion picture theater” means a 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 seventy-two, of
M.G.L. (C.O. 93-504 sec.3 (part)
17.08.065(D) Adult use. “Adult use” means a
use (whether partially or on its entirety) of a building
or business for the purpose of engaging in the sale,
display, hire, trade, exhibition or viewing of materials
or entertainments depicting, describing, or relating to
sexual conduct or sexual excitement as defined in
Section thirty-one of Chapter two hundred seventy-
two, of M.G.L. (C.O. 93-504 sec.3 (part)).
17.08.065(E) “Adult use advertisement sign.
“Adult use advertisement sign” means an advertising
sign or devise which advertises an _ adult
entertainment use, adult bookstore, adult video store,
or adult motion picture theater and/or advertises the
trade, rental or sale of 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 seventy-
two, of M.G.L. (C.O. 93-504 sec.3 (part)).
17.08.065(F) Adult video store. “Adult video
store" means an establishment having as a
substantial or significant portion of its stock in trade,
7a
rental or sale, videos 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 seventy-two, M.G.L. (C.O. 93-
504
sec. 3 (part)).
17.08.065(G) Substantial or Significant Portion.
“Significant or substantial portion” means at least that
portion of (i) retail sales accounting for at least twenty
percent of gross sales or (ii) merchandise accounting
for at least twenty percent of total merchandise
available for sale or (iii) shelf-space and display space
which when combined is in excess of eighty (80)
square feet.
Section 2, Title 17, Chapter 17.16 of the Revised
Ordinances of the City of Revere is hereby amended by
deleting Section 17.16.045, and in place thereof, the
following new Sections are inserted:
17.16.045(A) Adult entertainment
establishment and businesses promoting Adult uses
within the City of Revere. Based upon the experience
of other communities, particularly the _ evident
problems which existed in those portions of the City of
Boston bordering and included within the so-called
“Combat Zone”, the City Council of the City of Revere
finds that the proliferation of adult entertainment
establishments (as said term is herein defined) will
have an adverse on the community by, among other
impacts, limiting economic development and reducing
residential property values. Furthermore, the City
Council finds that adult entertainment
establishments, if situated near school, parks or
conservation areas, houses of worship, nursery
schools, day care centers, kindergartens’ or
playgrounds would have an adverse impact on the
youth of this City.
8a
17.16.045(B) General Limitation.
Notwithstanding any term or condition within the so-
called Table of Uses within these Revised Ordinances,
or any other provision of said Revised Ordinances, no
adult entertainment establishments, adult bookstore,
adult video store, adult motion picture theater and
advertising signs or devices may be (i) erected,
constructed placed altered converted or otherwise
changed in any district other than the “I” District or
(ii) erected, constructed, placed, altered, converted or
otherwise changed without the issuance of a Special
Permit issued by the City Council or (iii) erected,
constructed placed, altered or converted if it is within
three hundred feet of the line of any lot which itself
contains either an adult entertainment establishment,
adult bookstore, adult video store, adult motion
picture theater or adult advertising signs or devices.
17.16.045(C) Special Permit Considerations for
adult entertainment establishments and adult motion
picture theaters. No special permit may be granted for
any adult entertainment establishment or adult
motion picture theater unless each of the following
conditions are fully satisfied: y
i. Adult entertainment establishments and
adult motion picture theaters may not be located less
than one thousand feet (1,000) 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; houses of worship;
residential uses; and residential districts.
2. A thirty foot-wide landscaped strip shall
be provided along the property line fronting a public or
private way.
9a
3. No adult entertainment establishments
or adult motion picture theater may be situated on
any lot which is less than twenty-two thousand feet
nor more than sixty-six thousand square feet.
4. Adult entertainment and adult motion
picture theaters may not be allowed within a building
containing other retail, consumer or residential uses.
5. No adult entertainment establishments
and adult motion picture theaters shall be located
within fifty feet of a public or private way and must be
set back a minimum of fifty feet from all property
lines.
6. A material condition to every special
permit issued with respect to any adult entertainment
establishment and adult movie theater shall that such
establishment or theater must cease its business
operations between the hours of 1 a.m. and 10 a.m.
each day.
2 No adult entertainment establishment or
adult motion picture theater may have visible from
outside the establishment or theater any flashing
lights.
8. No adult entertainment establishment or
adult motion picture theater shall be eligible to apply
for a special permit requesting a_ freestanding
accessory sign.
9. Each applicant for a special permit to
operate an adult entertainment establishment of adult
motion picture must provide on a plan submitted with
its application adequate parking on the same lot said
establishment or theater in the following ratio: 1
parking space for every 1.25 person allowed for said
establishment's seating capacity.
10a
17.16.045(D) Special Permit Consideration for
adult bookstores and adult video stores. No special
permit may be granted for any adult bookstores or
adult video stores (collectively said bookstores and
video stores hereinafter referred to as “adult
merchandise establishments”) unless each of the
following conditions are fully satisfied:
l. Adult merchandise establishments may
not be located less than one thousand feet (1,000)
from the nearest lot line of: each other; public or
private nursery schools; public or private elementary
schools; public or private secondary schools;
playgrounds; parks; conservation areas; houses of
worship; residential uses; and residential districts.
2. A twenty-five foot wide landscaped strip
shall be provided along the property line fronting a
public or private way.
3. No adult merchandise establishments
may be situated on any lot which is less than sixteen
thousand square feet more more [sic] than sixty-six
thousand square feet.
4. Adult merchandise establishments may
not be allowed within a building containing other
retail, consumer or residential uses.
S. No adult merchandise establishments
shall be located within thirty feet of a public or private
way and must be set back a minimum of at least
thirty feet from all property lines (unless applicable
zoning regulations provide for a greater set back).
6. A material condition to every special
permit issued with respect to any adult merchandise
establishment shall that such establishment or
theater must cease its business operations between
the hours of 11 P.M. and 9 A.M. each day.
lla
7. No adult merchandise establishment
may have visible from outside the establishment or
theater any flashing flights.
8. No adult merchandise establishment
shall be eligible to apply for a special permit
requesting a free-standing accessory sign.
17.16.045(E) Special Permit Consideration for
Adult use advertisement signs. No special permit may
be granted for any adult use advertisement signs
unless each of the following conditions are fully
satisfied:
i Adult use advertisement signs may not
be located less than one thousand feet (1,000) from
the nearest lot line of: each other; public or private
nursery schools; public or private day care centers;
public or private secondary schools; playgrounds;
parks; conservation acres; houses of worship:
residential uses; and residential districts.
ya Adult use advertisement signs may only
be located on a building in which there is operating
either an adult merchandise establishment, adult
entertainment establishment or adult movie theater
pursuant to a special permit issued by the City
Council.
3. The highest point on any adult use
advertisement sign may be no higher than twenty-four
feet above ground level.
4. No adult use advertisement sign may
contain any moving, flashing or animated lights, or
visible moving or movable parts.
17.16.045(F) Construction: conflicts. In the
event that the applicable provision of the zoning
ordinances set forth in these Revised Ordinances
12a
imposes greater dimensional or setback requirements
than do the provisions of ss 17.16.045 et seq., the
greater requirements of the zoning ordinances shall
apply. No structure shall contain both an adult
merchandise establishment and either an adult
entertainment establishment or adult movie theater.
April 24, 1995:
May 1, 1995:
May 1, 1995
May 1, 1995:
ORDERED to a first reading
ORDERED to a second reading
ORDERED to a third and final
reading.
ORDERED ENGROSSED AND
ORDAIN: on a_ Roll Call:
Councillors Buonfiglio, Colarossi,
Colell, DelGrosso, DiCarlo,
Guinasso, Jordan, Penn, Penta
and Fiore voting “YES.” Councillor
Caporale absent.
Attest: John J. Henry,
City Clerk
APPROVED:
/s/ ROBERT J. HAAS, JR.
MAYOR ROBERT J. HAAS, JR.
May 5. 1995
DATE
Attest:
/s/ John J. Henrv
City Clerk
13a
APPENDIX C
]
PAGES 1-111
VOLUME 4
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
No. SUCV- 1994-6879 Department of the
TRIAL COURT
T&D VIDEO
V
CITY OF REVERE
Boston, Massachusetts
August 23, 2002
Before: J. Murphy
PAULA CONNELLY, CVR
OFFICIAL COURT REPORTER
EXCERPTS OF TRIAL TESTIMONY
OF JOSEPH FERRUZZI
[40]
Q Now, let's stay on page 20. In this colloquy you
had with Councilors Arigo and Koilella, you
were asked, “What did they tell you?” and you
said, “They expressed to me their concern that
there was an adult video store going to be
located in Revere someplace, possibly this
location.”
And you were asked, “Did they ask something
about it?” and you responded --
l4a
MR. ZALEZNIK: Object, Your Honor.
THE COURT: Well, I mean, I'll hear what he --
MR. ZALEZNIK: He's holding the deposition.
THE COURT: Well, I know, but it’s a question of
whether or not this is coming into evidence, and the
answer is it isn't. I'm just not -- this isn’t admissible
testimony [41] just because Mr. Alberich is reading
from the deposition.
Q
\
Well, when I asked you, “Did they ask you to do
something about it,” what was your response to
that, according to this deposition transcript?
The top of page 21.
Page 21, line 1 and 2 says, “To my recollection,
they asked me to not allow it.”
Is that accurate? Is that what you said?
To the best of my recollection, correct.
THE COURT: You mean is that what he said to
them or is that what he said on this deposition or?
MR. ALBERICH: Is that what he said in his
deposition.
A
That's what I said in my deposition, yes.
And that was a truthful statement, correct?
To the best of my knowledge, yes.
Okay. And then you were asked, [42] “What did
they mean by not allowing?” And what was your
answer to that question?
A
15a
Line 5, “To not issue --”
Well not line 5, you can just tell me. Does line 5
accurately describe your answer to that question
during the deposition?
A
‘4
A
‘a
Yes.
Okay. And what does it say”
To not issue permits for that use.
Okay. And you were asked then, on line 9,
“What did you say about that?” And to the best
of your recollection, what did you say when
they asked you not to issue permits for that
place?
MR. ZALEZNIK: Obiect, Your Honor.
THE COURT: I'm going to overrule the objection
What did you say?
THE COURT: You may answer.
What did you say, Mr. Feruzzi?
At that point in time, the zoning ordinance did
not prohibit that use.
And that’s what you told them?
Yes.
Okay. And then you were asked, “What was the
response to your informing the city councilors
that it wasn't prohibited by the ordinance?” And
16a
to the best of your recollection, how did you
respond to that question?
Could you rephrase that, please?
When you were asked what was the response to
your informing these city councilors that it
wasn't prohibited by ordinance, how did you
respond to that question in the deposition?
I didn't respond.
You responded to the question.
Oh, okay. I'm sorry. Im getting a little
confused.
Their response, as | stated in the deposition,
that they would then, as city councilors who write the
zoning ordinance, they would get together with the
city planner and draft an ordinance.
Q
Well, let's be a little clearer on this. The
question asked to you was, “What [44] was the
response to your informing these city councilors
that it wasn't prohibited by an ordinance?”
Your answer is, “They would get together with
the city planner and draft one.” Correct?
Correct.
All right. And is that an accurate statement of
your answer to that question?
Yes.
Okay.
MR. ALBERICH: I have no further questions,
Your Honor.
17a
APPENDIX D
]
PAGES 1-151
VOLUME 3
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
No. SUCV-1994-6879 Department of the
TRIAL COURT
T&D VIDEO
V
CITY OF REVERE
Boston, Massachusetts
August 22, 2002
Before: J. Murphy
PAULA CONNELLY, CVR
OFFICIAL COURT REPORTER
EXCERPTS OF TRIAL TESTIMONY
OF FRANK L. STRINGI
[48]
Q Mr. Stringee, prior to drafting the 1993
ordinance, you never investigated to see if there
were any adult book stores in Revere, did you?
No, | did not.
Q And prior to drafting the ordinance, you never
investigated to see whether there were video
stores selling adult videos in Revere, did you?
18a
No.
And you were not aware, at the time you were
drafting this ordinance, that there were video
stores in Revere selling adult videos; is that
correct?
That’s correct.
And you were not aware, consequently, that
those video stores were within a hundred and
two hundred feet of [49] residential areas,
correct?
Correct.
So prior to drafting the ordinance, you never
detected any neighborhood deterioration for
increased crime in the neighborhoods that
surrounded those stores where adult videos
were being sold, did you?
No.
Now, you said that you obtained information --
you said in your deposition that you obtained
some of the dimensional requirements -- at
least a thousand foot setback dimensional
requirements -- that you used in the Revere
ordinance from the Stoughton & Peabody
ordinance; is that correct?
You mean a hundred foot?
A thousand foot dimensional. The thousand
foot --
Setback?
I'm sorry. If I said setback -
[51]
19a
I think you did say setback.
The thousand foot dimensional [50]
requirements -- a thousand feet from
neighborhood schools, parks -- you said you
obtained from the Stoughton & Peabody
ordinances?
I obtained from those ordinances that they had
included setbacks from residential areas and
sensitive receptors in their ordinances.
Okay. What were the degrees of separation, let's
put it that way, of adult uses to neighborhoods
in those ordinances; do you remember?
1 believe Stoughton was 750 feet. Peabodv was
less than that.
In fact, in the Peabody ordinance, isn't it true
that the only requirement for adult bookstores
is that they be 200 feet from residential areas?
Do you recall that?
Yes.
So when you were testifying before about where
you could place all adult uses, by virtue of this
thousand feet requirement you're putting in,
that thousand foot requirement was your idea?
It was my idea and I also saw that in the
“Land/Use Manager,” back in 1983, that there
was a town -- | can't remember the town, but
they had included a thousand foot pre--
qualifier.
But you chose a thousand?
20a
Sure.
And if you had chose 200 or 750 or 500, there
might have been other areas in Revere, aside
from the general industrial area, where adult
uses could have been sited, correct?
Not 500. I think less than 500 you'd have more
flexibility. Even with 500, it’s very tight.
Well, if you made it, for instance, 250 feet for
bookstores and videos and 500 feet for live
dance entertainment, there would have been
many more sites in Revere that could have had
adult uses, correct?
Yes.
Now, you testified before that your thoughts
about neighborhood [52] deterioration came
from your experiences with the Surf, correct?
And the Squire Lounge.
And the Squire Lounge. Both of which are bars,
correct?
Yes.
That provide live, not nude, dance
entertainment?
Nude dance entertainment, yes.
But you had testified in your deposition that
when you drafted the adult ordinance, based on
your opinions, that your opinion was that any
type of adult use would have the same affect on
a residential neighborhood, regardless of the
different types of adult entertainment, correct?
2la
That's my opinion.
And that certainly influenced the dimensional
requirements that you put into the ordinance,
correct?
Yes.
Not only in terms of using a thousand feet, but
using a thousand feet for everything; adult
bookstores, adult video [53] stores, correct?
Correct.
And in your view, you testified the negative
affects on the neighborhood would be the same,
regardless of whether an adult use was a video
store or a_ bar featuring live, nude
entertainment, correct?
Correct
But you also testified that there are -- you have
no studies or reports or any other information
that supported that view, correct?
In my own -- my own opinion, my own
observations of adult uses in the City of Revere.
You testified that that was your observations on
the Squire Lounge and the Surf?
I don't differentiate between a lounge or a video
store. They still sell the same material, and
that’s sexually related
Okay. So anything, if it’s sexually related, gets
the same kind of [54] treatment, correct?
22a
You're going to get the same person that goes to
an adult video store go to the Squire Lounge.
To get back to my question, you didn't have any
studies or reports or anything else that
indicated that adult video stores or bookstores
needed the same kind of separation as bars
featuring live, nude entertainment?
No. There was nothing documented that I could
put my hands on.
And you drafted the ordinance based on your
opinion that every adult use required, quote,
“the strictest regulations,” correct?
Yes.
And from your discussions with Mr. Arigo, you
had an understanding that he, too, wanted to
impose the strictest regulations on adult
entertainment, right?
Yes.
And in determining the adult ordinance
provisions that you were going to [55] use, and
you used, quote, “the harshest measures
possible,” end quote, correct?
The harshest measures possible but still
allowing adult uses to exist within the
community.
But you've testified under oath that you chose
the harshest measures possible, correct?
Yes.
23a
And when you spoke to the members of the
planning board, as you said you did at that
public hearing, did you discuss with them the
secondary affects that you were concerned
about and how each of these provisions were
supposed to address those secondary affects?
I believe I did.
You did. Did you tell them that you were
looking to use the harshest measures possible?
Yes.
You did. And did you tell them that this was
drafted in order to treat all adult uses the same
because, in vour view. [56] all adult uses would
have the same impact on the neighborhood.
Yes.
And you testified that, in your opinion, the
people who seek to rent an adult video must be
interested in prostitution, which creates more
crime in Revere; is that correct?
Yes.
MR. ZALEZNIK: Object, Your Honor.
THE COURT: Overruled.
But you have no factual basis for that opinion?
It's my own observation of the community.
But you said that you were not even aware that
there were adult video stores -- that there were
video stores in Revere selling adult videos in
24a
neighborhoods prior to drafting this law: isn't
that correct?
A. Right.
25a
APPENDIX E
The City of REVERE, MASSACHUSETTS
OFFICE OF THE MAYOR
281 BROADWAY, REVERE, MA 02151
(617) 286-8110 eFax (617) 286-8199
September 16, 1993
Honorable City Council
Revere City Hall
Revere, MA 02151
Dear Members:
Please find attached an ordinance amendment
regulating Adult Uses such as adult entertainment
establishments, adult bookstores, adult videostores,
adult motion picture theatres and adult use
advertising signs. The Zoning Ordinance of the City of
Revere presently does not provide adequate protection
against such uses in terms of preserving community
standards and character. It is the intent of this
ordinance to properly regulate adult uses and
advertisement signs in conformance with Chapter 40A
Section 9a of the Zoning Enabling Act.
The attached Adult Use Ordinance regulates adult
uses by special permit within the Industrial District
under a set of specific and restrictive conditions which
have been designed to preserve the general welfare
and character of our predominantly residential
community.
It must be noted that under the State Zoning Enabling
Act, communities cannot totally prohibit adult uses
but are authorized to regulate such uses via the
special permit process, Since the present zoning
26a
ordinance does not afford this protection, it is strongly
encouraged that Your Honorable Body authorize
advertisement of this amendment.
Respectfully,
/s/ Robert J. Haas, Jr.
Robert J. Haas, Jr.
Mayor
C: Frank Stringi, City Planner
Richard Villiotte, City Solicitor
Joe Ferruzzi, Building Inspector
APPENDIX F
l
PAGES 1-151
VOLUME 3
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
No. SUCV-1994-6879 Department of the
TRIAL COURT
~ T&D VIDEO
V
CITY OF REVERE
Boston, Massachusetts
August 22, 2002
Before: J. Murphy
PAULA CONNELLY, CVR
OFFICIAL COURT REPORTER
EXCERPTS OF TRIAL TESTIMONY
OF RICHARD PENN
[139]
Q To the best of your knowledge, Mr. Penn, when
the city council was considering the adult
zoning ordinance, both at its October ‘93 and
November ‘93 meetings, there were no
documents before the city council relating to
the supposed secondary affects of adult
entertainment on surrounding neighborhoods,
correct?
28a
MR. ZALEZNIK: Objection.
THE COURT: I'm going to let him answer that.
Overruled.
To the best of your knowledge, did you see any
documents having to do with --
[140]
THE WITNESS: To the best of my
knowledge, I do not recall any documents.
And you and the city council members received
no such materials or information in conjunction
with your consideration of the ordinance back
in November of ‘93, correct?
MR. ZALEZNIK: Object, Your Honor.
THE COURT: Overruled.
Your answer?
I do not recall any such documents
Okay. And the city council never voted or
requested or commissioned any kind of an
investigative report on possible secondary
affects for the various kinds of adult
entertainment prior to _ considering _ this
ordinance, correct?
MR. ALBERICH: Object, Your Honor.
THE COURT: Overruled.
That is correct.
29a
And at the time it was considering, or before it
considered this particuiar ordinance, the city
council didn't investigate or commission any
investigation of secondary affects of the [141]
existing adult entertainment establishments in
the City of Revere, correct?
MR. ALBERICH: Object, Your Honor.
THE COURT: Overruled.
The city council did not request such
information.
Did the city council ask any officials, such as
the zoning or tax officials, for any information
regarding the provisions in the adult ordinance
that dealt with lot size restrictions and setbacks
and what the impact of all of those would be?
MR. ALBERICH: Object, Your Honor.
THE COURT: Overruled.
Not to my knowledge.
And did you ever ask for any such information
individually?
No, I did not
And you never had any discussions with Mr.
Stringee about the adult entertainment
ordinance before the city council before you
voted on it in October or November of ‘93,
correct?
No, I did not.
30a
[This page is intentionally left blank.]}
3la
APPENDIX G
]
PAGES 1-151
VOLUME 3
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
No. SUCV- 1994-6879 Department of the
TRIAL COURT
T&D VIDEO
V
CITY OF REVERE
Boston, Massachusetts
August 22, 2002
Before: J. Murphy
PAULA CONNELLY, CVR
OFFICIAL COURT REPORTER
EXCERPTS OF TRIAL TESTIMONY
OF JOHN ARIGO
[146]
Q And you testified at your deposition that you
felt that if the Peabody ordinance was past in
Peabody then you could pass the same
ordinance in Revere, correct?
“A Correct
32a
Q All right. And that was -- you spoke to Mr.
Stringee and he told you that Peabody had
passed this ordinance, that was essentially all
he told you about the Revere ordinance before
you voted for it, correct?
MR. ZALEZNIK: Object, Your Honor.
THE COURT: I'll ailow that. Overruled.
A I don't -- like, again, when we talked Peabody, |
don't know if it was specifically -- and I can't
remember -- just for adult video. We were
looking at any --
THE COURT: Well, he’s referring, sir, to the
Peabody ordinance dealing with [147] adult
entertainment.
THE WITNESS: That's what I'm saying, but --
THE COURT: No, no. He's asking you a specific
question. Did you talk with Mr. Stringee about
anything else other than if the ordinance had been
enacted in Peabody, why not do it in Revere? Was
there anything else about adult entertainment that
you and Mr. Stringee discussed, that’s the question.
THE WITNESS: No.
THE COURT: Okay. Fine. The answer is no.
Q At the time you were considering the adult
entertainment ordinance, the city council had
no evidence in front of it to show that all adult
video stores or all adult uses would have the
same negative affects on neighborhoods of
Revere, correct?
MR. ZALEZNIK: Object, Your Honor.
33a
THE COURT: I'll overrule it. Do you remember
any evidence about affects?
{148}
[149]
THE WITNESS: No, not really.
THE COURT: Okay. He answered no.
And at the time, when this whole business
came up of an adult use ordinance, you
testified that what you really would like to do is
just block all adult uses anyway, correct?
MR. ZALEZNIK: Object, Your Honor.
THE COURT: Ill allow it. Overniled.
I said that I think in my deposition, but I mean
at the testimony, it wasn't -- an adult video
wasn't a big deal to me. I mean, it was -- like I
said, I had a lot more worry than adult video.
All right.
I mean, I think it was in my ward and if people
go there, they don't -- for me, I don't really care
less. I mean --
THE COURT: Okay.
You testified, too, that if adult uses were
required to have a special permit, and you can't
see why you couldn't just reject adult use
requests across the board, correct?
That's right. That's what I --
34a
MR. ZALEZNIK: Object, Your Honor.
THE COURT: I'll allow it.
A That's right, but I think Mr. Stringee -- a lot of
things -
THE COURT: Can you say the state of mind
that the city council may have some bearing?
THE WITNESS: You know, transfer stations,
they couldn't -- there were a lot of things that I said
let's just reject them -across the board, then I was told
by Mr. Stringee we just can't do that. You know, you
had to do -- allow things. So my concern was like
anything else, de-buffer zones, I don't care, make it as
stringent as possible or anything. I mean, on any -
Q Okay. That's fine.
A Okay.
MR. ALBERICH: Nothing further.
35a
APPENDIX H
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 94-6216A
T & D VIDEO, INC.
d/b/a MOONLITE READER
Vv.
THE CITY OF REVERE, MASSACHUSETTS,
THE ZONING BOARD OF APPEALS OF
THE CITY OF REVERE, MASSACHUSETTS,
EDWARD ELFMAN, as Chairman of the
Zoning Board of Appeals of Revere,
ALFRED BUCCILLI, as Member of the
Zoning Board of Appeals of Revere,
ANTHONY GIANNINO, as Member of the
Zoning Board of Appeals of Revere,
PETER LATTANZI, as Member of the
Zoning Board of Appeals of Revere,
JOHN J. VERRENGIA, as Member of the
Zoning Board of Appeals of Revere, and
JOSEPH FERRUZZI, as Building Inspector
of Revere
FINDINGS OF FACT, RULINGS OF LAW, AND
JUDGEMENT
3. T&D Video has a constitutionally protected
right to engage in the sale of nmon-obscene
“adult” video tapes. T&D Video. Inc. v. City of
Revere, 423 Mass. 577, 580 (1996}. Counsel for
both sides forcefully and ably presented at trial
detailed arid focused evidence on the issue of
the City’s “intent” in enacting the Ordinances in
36a
question — i.e. whether this court should view
the Ordinances as patent prior restraint on
speech or merely content-neutral time, place
and manner regulation of adult entertainment.
T&D Video asserts that the totality of the
evidence demonstrates conclusively that Revere
directed the ordinance specifically at T&D
Video. The court concurs. Particularly, the
enactment of the 1993 Ordinance, on
September 16, 1993, two days after T&D
sought a business. certificate, evidences
Revere's intention to single out T&D. See 754
Orange Ave., Inc. v. City of West Haven, 761
F.2d 105, 113 (2"4 Cir. 1985). Because the 1993
Ordinance leaves no location available lawfully
to conduct T&D Video’s business, and the 1995
Ordinance has the same preclusive effect, the
Ordinances — although concededly “content-
neutral” |see, e.g., City of Los Angeles v.
Alameda Books. Inc., 122 S. Ct. 1728 (2002)] --
collectively operate as impermissible prior
restraint, leaving reasonable alternative
avenues of communication of adult-based
content unavailable, and not as a reasonable
so-called “time, place, and manner restriction.”
See Schad v. Borough of Mt. Ephraim, 452 U.S.
61, 76 (1981). See also City of Los Angeles v.
Alemeda Books Inc., supra, at 1737.
37a
APPENDIX I
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
SUFFOLK COUNTY NO. 2005-P-0109
T&D VIDEO, INC. D/B/A MOONLITE READER
Plaintiff-Appellee
V.
CITY OF REVERE, et al.,
Defendants-Appellants
ON APPEAL FROM A JUDGMENT
OF THE SUPERIOR COURT
Brief for the Defendants-Appellants
City of Revere, et al.
For the Defendants-Appellants:
Ira H. Zaleznik, Esquire
Lawson & Weitzen, LLP
88 Black Faicon Avenue, Suite 345
Boston, MA 02210
(617) 439-4990
38a
{33] Commission issued regulations that barred the
newspaper company from selling papers from street
coin operated newsracks. While noting that the
newsracks were an efficient and cost-effective method
of distributing the papers, the Court held that the
regulation was constitutionally valid. Even though the
regulation banned the street newsrack form of
distribution in its entirety, there were ample other
methods available to the paper to have its product
distributed.
In this case, the facts are undisputed in the
record that the same adult videos are readily available
for sale, consistent with the provisions of the zoning
ordinance, at numerous locations throughout Revere.
In these circumstances., the requirement that there be
reasonable alternative avenues of communication is
satisfied, and the ordinance should not have been
struck down by the Judge. Accordingly, this Court
should reverse the judgment below, and direct the
entry of a new judgment upholding the ordinance and
dismissing this action.
Ill. THE TRIAL JUDGE FAILED TO APPLY
APPROPRIATE LEGAL STANDARDS _IN
AWARDING LEGAL FEES AND COSTS TO
T&D
A. T&D’s Application Should Have Been
Denied In Its Entirety Since It
Reflected a Total Lack of Billing
Judgment And Was Grossly Excessive
The Trial Judge, while noting the authority
relied upon by Revere, concluded that the fee petition
submitted [34] by T&D did not “shock the conscience”
and should not be disallowed in full. App. 724. In
reaching this conclusion, the Trial Judge abused the
discretion granted to him in allowing a recovery of
attorneys fees.
39a
The fee petition of T&D, seeking almost one and
a quarter million dollars, was outrageous in the
extreme. In these circumstances, a Court is virtually
compelled to deny all fees. As explained by the First
Circuit Court of Appeals in Lewis v. Kendrick, 944
F.2d 949, 958 (1st dr. 1991) approving of the Seventh
Circuit's analysis in Brown v. Stackler, 612 F.2d 1057,
1059 (7th Cir. 1980):
“On the other hand, there must come a
point where what is sought is plainly
improper. We therefore agree with that
circuit's complete denial of fees in Brown
v. Stackler, 612 F.2d 1057 (7th
Cir.1980), even though there was a
recovery. There the court said,
[A)ppellant’s counsel
submitted a claim which
was so intolerably inflated
that the District Court was
warranted in departing
from the usual practice and
reacting vigorously to
prevent such abuse of the
court's authority to award
reasonable compensation to
counsel.
If, as appellant argues, the
Court were required to
award a_ reasonable fee
when an outrageously
unreasonable one has been
asked for, claimants would
[35] be encouraged to make
unreasonable demands,
knowing that the _ only
unfavorable consequence of
such misconduct would be
reduction of their fee to
40a
what they should have
asked for in the first place.
612 F.2d at 1059. This is strong
medicine, but for this blow-up of a
routine street arrest on a citizen's call,
and inexcusable reaching for fees-to the
burden of the court-we believe it entirely
appropriate. A request for attorney's fees
is required to be in good faith and in
reasonable compliance with judicial
pronouncements, and not an opening
gambit in negotiations to reach an
ultimate result. The statute give us
discretion, 42 U.S.C. §1988, and the
departure here was too extreme to be
tolerated.”
Most circuits, when confronted with an outrageous
request, have followed the rule of the First Circuit in
Lewis. For example, in Scharn v. District Courts Trying
Criminal Cases, 148 F.3d 554 (5th dir. 1998), the Fifth
Circuit, citing Lewis and Brown, denied all fees to a
prevailing plaintiff when the fees sought were grossly
disproportionate to a fair and reasonable fee. In
Scham, counsel sought compensation for 936 hours of
work at the rate of $350 per hour, or three times the
average rate for practitioners with comparable
experience in the area. The Court concluded that the
District Court decision to deny all fees had to be
affirmed. As the Fifth Circuit Court of Appeals stated,
148 F.3d 554, 559, quoting from [36] Fair Housing
Council of Greater Washington v. Landow, 999 F.2d 92
(4th Cir. 1993):
“We realize that the district court's
remedy here is extreme, but we are
reluctant to reverse inasmuch as doing
so would serve to condone and
encourage such outrageous petitions. As
4la
the Fourth Circuit has_ reasoned,
appellants in this case intended to
submit an outrageously excessive fee
petition in the hope that the district
court would at least award some,
preferably high, percentage of the
requested fees. We believe Congress did
not intend to foster such gamesmanship
when it enacted the Civil Rights
Attorney's Fees Act of 1976. Rather, the
clear intent of Congress was to provide
reasonable fees to prevailing parties. Our
decision today seeks to further that
purpose by encouraging attorneys at the
outset to request only reasonable fees
and to provide the necessary assistance
to the district court for determining a
reasonable fee.” (Emphasis added).
Notwithstanding the admonition of the First,
Fourth, Fifth and Seventh Circuits, T&D, in this case,
submitted a grossly bloated, outrageously excessive
request for fees and costs. T&D's fee petition ought to
have suffered the same fate as the petitions in Lewis,
Scham, Landow and Brown, and the Trial Judge
should have denied the petition in its entirety.
The Supreme Court and the circuits have
consistently held that the essence of any application
for fees is the exercise of billing judgment, just as
would be done in the private sector. The filing of a fee
petition is not to be the opening bid in a gambit for
fees. As the Supreme Court explained in Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983):
42a
[This page is intentionally left blank.)
43a
APPENDIX J
COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
SUFFOLK, ss. APPEALS COURT NO. 2005-P-109
FAR NO.
T&D VIDEO, INC. D/B/A MOONLITE READER
Plaintiff-Appellee
Vv.
CITY OF REVERE, et al.,
Defendants-Appellants
ON APPEAL FROM JUDGMENTS
OF THE SUPERIOR COURT
Application of Defendants-Appellants City of
Revere, et al., for Further Appellate Review
For the Defendants-Appellants:
Ira H. Zaleznik, Esquire
(BBO #538800)
Lawson & Weitzen, LLP
88 Black Falcon Avenue, Suite 345
Boston, MA 02210
(617) 439-4990
44a
[10]
V. FURTHER APPELLATE REVIEW IS
NECESSARY AND APPROPRIATE
Further appellate review is necessary and
appropriate in this case since this matter involves
important principles of constitutional law and public
policy of broad application. The decision of the
Appeals Court, if undisturbed, will result in the
requirement that all cities and towns in the
Commonwealth make provision for adult uses,
regardless of the character of the community and the
availability of such entertainment elsewhere. With
respect to the fee petition, the decision of the Appeals
Court will eviscerate the rule of Lewis v. Kendrick, 944
F.2d 949, 958 (lst Cir. 1991) and ensure that no fee
petition, no matter how outrageous or disorganized,
will be subject to denial. The effect of this decision, if
not reviewed by this Court, will do lasting harm to
constitutional principles and civil rights litigation
throughout the Commonwealth.
As set forth above, the Trial Judge’s conclusion,
endorsed by the Appeals Court, that there was no area
in Revere that T&D could locate, was erroneous.
However, even if one were to conclude that this finding
was correct, the ordinance would nonetheless be
constitutional. The undisputed evidence in the record
shows that the adult videos like the ones sold by T&D
were readily available at conventional video store...
[14]
. with the provisions of the zoning ordinance, at
numerous locations throughout Revere. In _ these
circumstances, the requirement that there be
reasonable alternative avenues of communication is
satisfied, and the ordinance should not have been
45a
struck down by the Appeals Court and the Trial
Judge. Accordingly, this Court should grant further
appellate review, reverse the judgment below, and
direct the entry of a new judgment upholding the
ordinance and dismissing this action.
Finally, as to the Appeals Court's disposition of
the judgment for attorneys fees and costs, Revere
would suggest that the conscience of the Appeals
Court needs sharpening. The Appeals Court decision
noted that “this fee request certainly approaches the
outermost parameter that separates an acceptable
application from one that ‘shocks the conscience.” See
66 Mass.App.Ct. at 476. Revere respectfully suggests
that the fee petition did not merely “approach” the
“outermost parameter,” but clearly crossed the line.
T&D sought compensation for over four thousand
hours of legal time. The amount of compensation
sought approached one and one quarter million
dollars. To attempt to shift this burden to the
taxpayers of Revere is unconscionable, and should not
be permitted in any amount.
This rule is the prevailing one in the circuits. As
explained by the First Circuit Court of Appeals in
Lewis [15] v. Kendrick, 944 F.2d 949, 958 (lst dir. [sic]
1991) approving of the Seventh Circuit's analysis in
Brown v. Stackler, 612 F.2d 1057, 1059 (7th dir. [sic]
1980)
“On the other hand, there must come a
point where what is sought is plainly
improper. We therefore agree with that
circuit's complete denial of fees in Brown
v. Stackler, 612 F.2d 1057 (7th
Cir.1980), even though there was a
recovery. There the court said,
[A]ppellant’s counsel
submitted a claim which
46a
was so intolerably inflated
that the District Court was
warranted in departing
from the usual practice and
reacting vigorously to
prevent such abuse of the
court's authority to award
reasonable compensation to
counsel.
If, as appellant argues, the
Court were required to
award a_ reasonable fee
when an_ outrageously
unreasonable one has been
asked for, claimants would
be encouraged to make
unreasonable demands,
knowing that the only
unfavorable consequence of
such misconduct would be
reduction of their fee to
what they should have
asked for in the first place.
612 F.2d at 1059. This is strong
medicine, but for this blow-up of a
routine street arrest on a citizen's call,
and inexcusable reaching for fees-to the
burden of the court-we believe it entirely
appropriate. A request for attorney's fees
is required to be in good faith and in
reasonable compliance with judicial
pronouncements, and not an opening
gambit in negotiations to reach an
ultimate result. The statute give us
discretion, 42 U.S.C. §1988, and the
departure here was too extreme to be
tolerated.”
47a
Most circuits, when confronted with an outrageous
request, have followed the rule of the First Circuit in
[16] Lewis. For example, in Scham v. District Courts
Trying Criminal Cases, 148 F.3d 554 (5th dir. 1998),
the Fifth Circuit, citing Lewis and Brown, denied all
fees to a prevailing plaintiff when the fees sought-were
grossly disproportionate to a fair and reasonable fee.
In Scham, counsel sought compensation for 936 hours
of work at the rate of $350 per hour, or three times
the average rate for practitioners with comparable
experience in the area. The Court concluded that the
District Court decision to deny all fees had to be
affirmed. As the Fifth Circuit Court of Appeals stated,
148 F.3d 554, 559, quoting from Fair Housing Council
of Greater Washington v. Landow, 999 F.2d 92 (4th
Cir. 1993)
“We realize that the district court's
remedy here is extreme, but we are
reluctant to reverse inasmuch as doing
so would serve to condone and
encourage such outrageous petitions. As
the Fourth Circuit has _ reasoned,
appellants in this case intended to
submit an outrageously excessive fee
petition in the hope that the district
court would at least award some,
preferably high, percentage of the
requested fees. We believe Congress did
not intend to foster such gamesmanship
when it enacted the Civil Rights
Attorney's Fees Act of 1976. Rather, tre
clear intent of Congress was to provide
reasonable fees to prevailing parties. Our
decision today seeks to further that
purpose by encouraging attorneys at the
outset to request only reasonable fees
and to provide the necessary assistance
to the district court for determining a
reasonable fee.” (Emphasis added).
48a
Notwithstanding the admonition of the First,
Fourth, Fifth and Seventh Circuits, T&D, in this case,
submitted a grossly bloated, outrageously excessive
request for [17] fees and costs. T&D's fee petition
ought to have suffered the same fate as the petitions
in Lewis, Scham, Landow and Brown, and the Appeals
Court and the Trial Judge should have denied the
petition in its entirety.
The Appeals Court recognized these principles
but failed to give them effect by simply vacating the fee
award and remanding the matter to the Superior
Court for a recalculation of the award. This Court
should correct the error, vacate the award, and direct
the entry of a new judgment denying T&D all fees.
Vi. CONCLUSION
For all of the foregoing reasons, Defendants-
Appellants City of Revere, et al., respectfully request
this Honorable Court to grant this application for
further appellate review.
Respectfully submitted,
Ira H. Zaleznik (BBO#538800)
Lawson & Weitzen, LLP
88 Black Falcon Avenue, Suite 345
Boston, MA 02210
(617) 439-4990
Attorney for
Defendants-Appellants
City of Revere, et al.
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