Mass. Club Owner Challenges Zoning Ordinance
Current Restrictions Effectively Zone Adult Businesses Out Completely
Posted Jan 16th, 2008 04:52 PM by Peter Warren
— Worcester's Telegram & Gazette
reports that the City Council may amend its 1996 adult entertainment zoning ordinance as a result of a legal challenge brought by the owner of a city lounge wishing to offer nude dancing at his establishment.
Brendan Robichaud, the owner of Seven Lounge, seeks with his lawsuit to have the ordinance declared unconstitutional, because he claims it effectively bans adult businesses from every part of the city.
In fact, while adult businesses are technically allowed via special permit in so-called "BG-6" zones, one cannot be located within 500 feet of a residence, day care center, school, church, library, hospital, funeral home or a number of other institutions.
The proposed amendment, referred by the City Council last night to the Planning Board for a public hearing and recommendations scheduled for Feb. 6, would make the 500-foot setback restriction in the downtown area (a BG-6 zone) applicable in relation to licensed pouring establishments, other adult entertainment establishments and the Worcester Public Library.
Robichaud agreed Wednesday in Worcester Superior Court to table his lawsuit while the proposed changes are being drafted. This follows a letter by City Solicitor David M. Moore delivered Tuesday to City Manager Michael V. O'Brien in which Moore predicated that should Robichaud be successful in his lawsuit, it could result in the entire ordinance being struck null and void. This, Moore suggested, would rob the city of an important tool for minimizing the "negative secondary effects" of adult businesses.
In a report to the City Council, O'Brien subsequently wrote, "We have firsthand experience with secondary effects of adult entertainment establishments. The illegal activity at the former Paris Cinema is still very fresh in our memory.
"Located in the heart of our downtown across from the Worcester Common," O'Brien's report went on, "[the Paris Cinema] was a haven for drug activity and prostitution. The negative effects of the Paris Cinema were palpable — it compromised public safety, discouraged reinvestment and economic revitalization, and threatened our quality of life."
Though the ordinance has never previously been challenged, Moore said he fears it may not withstand judicial scrutiny, and that the proposed amendment addresses the concerns of Robichaud's suit by creating a number of parcels where adult businesses could operate.
"While creation of these areas does not mean that adult entertainment establishments will locate in these areas," Moore said, "it, together with the four grandfathered establishments, does provide what the law requires: a reasonable opportunity for the exercise of this constitutionally protected right."
The four establishments referred to by Moore are Platinum Premiere Club, Hurricane Betty's, Ye Old Lamplighter and Centerfolds, all operating as pre-existing, nonconforming uses.
As part of his lawsuit, Robichaud was seeking an injunction to prevent the city from enforcing the law in its current form. Even with the proposed amendment, however, Seven Lounge would still be unable to feature nude dancers, because it is well within 500 feet of another bar.
Nevertheless, Robichaud's attorney, Daniel A. Silver, commented, "It is our feeling that it makes no sense to go forward with a preliminary injunction given that the city may amend this ordinance, and we'll be dealing with something different."
Judge Peter W. Agnes Jr. told Robichaud's legal counsel to contact the court clerk later if they feel the amended law still infringes on his rights. Judge Agnes also instructed the counsel to again notify the state Attorney General's office if the decide to continue their legal challenge against the amended ordinance.
The earliest the City Council could act on the measure is Feb. 26, but the process could take longer.