Mass. Strip Club Dances Around Town Zoning Restrictions

Nude dancing is a form of constitutionally protected expression, but just barely. The U.S. Supreme Court has described it as only within the outer ambit of the First Amendments shield. Courts have upheld a slew of restrictions on strip clubs based on their possible secondary effects on a surrounding community, like blight, decreasing property values and increase in crime (especially prostitution).

But sometimes the strip clubs win. The First U.S. Circuit Court of Appeals on Wednesday handed a rare victory to an adult entertainment company seeking to build a8,935-square-foot Adirondack style club in Mendon, Mass., a town of about6,000 people located about an hour southwest of Boston.

The Mendon Board of Selectman granted Showtime Entertainment LLC a license to build the strip club in 2010, on the condition that it abide by 18 pages of regulations and several newly amended zoning bylaws. Showtime could only build on four parcels in the town specifically carved out for adult entertainment. The company would have to confine the club to 2,000square feet; make it no taller than 14 feet; and open the clubs doors no earlier than 4:30 p.m. on school days. The town also banned alcohol in the club.

The justification for the rules: maintaining the rural aesthetics of Mendon as asmall town and avoiding traffic congestion.

Showtime sued, alleging that the zoning restrictions violated the First Amendment. A federal district judge sided with the town, ruling in 2012 that the regulations were narrowly tailored to serve the towns substantial government interest.

Showtime appealed, placing the case before the Boston-based First Circuit. The appeals court suggested that the towns justifications for the restrictions were pretense.

We see no cognizable difference in aesthetic impact between a large building hosting adult-entertainment activities and a large building hosting a bridge club or a bible study, Judge Juan Torruella wrote in theunanimous First Circuit decision.

The First Circuit also found insufficient evidence that the proposed club would impact traffic.

We believe that the record makes clear thatthese interests, although theoretically substantial in their ownright, are not what prompted Mendons amendments to the bylaws, JudgeTorruella wrote.

The ruling means that Showtime cant be held to the bylaws.

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Mass. Strip Club Dances Around Town Zoning Restrictions