*1 Mass. 13 Beverages Cabaret Control Commission. Enteiprises, Beverages Enterprises, Cabaret vs. Alcoholic Inc. Control Commission & another1
(and case2). a companion 4, Suffolk. 1984. 1984. April September Hennessey, Lynch, & C.J., Wilkins, Liacos, Abrams, Nolan, O’Connor, Present: JJ. Law, Constitutional speech, liquors, Freedom of Alcoholic Public enter- Liquors, tainment. Alcoholic Entertainment. Public Entertainment. General Laws c. prohibiting by entertainers on sell premises licensed to beverages violated art. 16 C.J., Massachusetts Declaration of Rights. concur- [15-18] Hennessey, J., J., ring; joins, with whom dissenting. Nolan, Lynch, commenced in the Court Depart- Civil actions Superior ment on June 1982.
The cases were heard Andrew G. J. Meyer, Judicial a for direct granted request review. appellate P. General,
John Assistant Graceffa, for the de- Attorney fendants.
H. Glenn Alberich the plaintiffs. J. These cases
O’Connor, whether art. question 16 of the Declaration of of the Massachusetts Rights Constitu- tion prohibits board from an city licensing establish- revoking ment’s all-alcoholic license because of a violation statute, § 12B. That when accepted by licensed municipality, prohibits nudity under L. for enforcement provides Alcoholic Control Beverages (commission) Commission local hold, We authorities. as did a licensing judge board of the Peabody. 2 D. Corp. Beverages & B. vs. Alcoholic Control Commission Licens & ing of the City Peabody. Board Alcoholic
Cabaret Inc. v. Enterprises, Court, *2 of these cases that in the circumstances all-alcoholic beverages § 12B to revoke the plaintiffs’ Therefore, 16. we af- unconstitutional under art. licenses was firm the below. judgment (Cabaret), and Inc. Cabaret Enterprises, plaintiffs, (Golden Banana) Massachusetts
D. & B. are corpora- Corp. Banana in the tions. Cabaret and Golden are “lounges” city (board) issued each board Peabody. Peabody 1982, license beverages an all-alcoholic pursuant plaintiff 12, 138, common license § L. as well as victuallers to G. c. license, 1982, G. L. an also for to entertainment pursuant 1982, 25, the c. 140. council of Peabody On February city 138, 12B, § to the of G. L. c. inserted voted provisions accept section, St. c. 606. That in St. appearing 636, 25, the § “In or town which any accepts provides: section, the of this no licensee licensed under pro- provisions twelve, to or visions of section shall suffer permit any person manner or as to on said licensed attire appear any area, anus, view of the any portion pubic expose thereof, simulation or or or shall suffer vulva genitals, any in such female any appear permit breast manner or attire as to to view expose any portion areola, below simulation thereof. any Any the top this shall be violation of the section enforced by provisions local au- the control commission the beverage thorities.” March, the observed nude dancing Peabody police There is contention
at the Golden Banana and the Cabaret. no fore- obscene. The were that the were patrons performances There was no between mingling warned of the dancing. 22, 1982, On the March plain- performers patrons. would tiffs received notice from the board that hearing were held on to determine whether plaintiffs April found § L. c. 12B. At that board hearing, violating their had 12B and voted revoke that the violated plaintiffs to stay licenses. The board agreed all-alcoholic the commission. review by revocation of the licenses pending affirmed the board’s revo- After a the commission hearing, cation of the licenses. The then filed plaintiffs complaints the board chal- the commission and against 138, under the of G. constitutionality lenging Constitutions, Massachusetts and United States and seeking relief The com- statute’s enforcement. injunctive against but iden- concerned different licensees were otherwise plaints tical. The revocation of their licenses plaintiffs alleged (1) constituted a violation of of free their rights expression Constitutions, (2) under the State and Federal a “restriction or restraint trade” violation of the Federal Constitution *3 thereunder, (3) and laws a of and violation State Federal equal (4) and due a protection violation of process safeguards, 11H and in that the defendants had interfered with the of secured the Constitu- enjoyment rights by plaintiffs’ tion or of the laws United States of the Commonwealth. The that the license revocations should be parties stipulated a decision in stayed the Court. pending Superior After a a hearing, the Court ruled that judge 138, 12B, as the to is unconstitu- applied plaintiffs, tional under art. 16. A was entered the judgment enjoining board from its with enforcing “rulings respect suspending, the or the revoking restricting Cabaret’s operations Golden Banana’s all-alcoholic licenses or beverages interfering dancers, with live cabarets and shows offered at either establishment of dance consisting performances accompanied music, arrest, live or by whether threats of pre-recorded arrest or actions or threats of actions prosecution, against licenses held over the Board which exercise plaintiffs may control, or other form of intimidation or coercion.” by any commission both cases and we the appealed granted commission’s for direct review. application appellate
The United States has danc- Court Supreme recognized as a form of that is entitled to ing some measure expression under the First and Fourteenth Amendments to protection the United States York Constitution. New State Auth. Liquor Bellanca, Inn, (1981). v. 452 U.S. 716 Doran v. Salem Inc., LaRue, (1975). 422 U.S. v. 932-934 409 California Alcoholic Inc. v. however, held, has
U.S.
Supreme
on
that
such entertainment
regulate
that State may
to sell alcoholic
without violating
are licensed
conclusion, at that
United States Constitution.
arriving
relied, at
on
broad
Court has
least
powers
partially,
the sale of
conferred by
Twenty-first
States
regulate
liquor
New York State
Amendment to the United States Constitution.
Bellanca,
Auth. v.
at 717-718.
supra
Liquor
California
LaRue,
at 118-119.
supra
(1978),
we
In Commonwealth v.
Mass.
can
Court had held that a State
that
recognized
without
ban
of its
license
nude dancing
part
liquor
program
however,
held,
Constitution. We
the United States
violating
of an ordinance of
that art. 163
prohibited
as to make criminal the
of Revere4
such a way
employ-
dancers,
ment
female
clad only
“G-strings,”
rea-
alcoholic
Id. at 537-538.5 We
beverages.
licensed to sell
free
soned
art. 16 does not
“between
expressly
on a
and no
in a bar
free speech
stage,
provision
of our Constitution gives
regulation
preferred position
at 537. For the
of assessing
Id.
beverages.”
purpose
to which nude
constitution-
amount
*4
3
by
art.
amended
art. 77 of the
speech provision
The free
of
Amendments,
not
abridged.”
of free
shall
provides:
right
“The
(1972):
following
art.
13-26
“The
acts
4 Revere Rev. Ords.
licensed in
with
Sec.
premises
Chapter
or conduct in or on
accordance
common
contrary
or
are deemed
to the
need
to the
Sec. 183A
be held
of alcoholic
good and therefore no license shall
for the sale
such
or conduct
premises
to be
drunk on the licensed
where
acts
served and
permitted.
are
“(a)
in or on the licensed
employ
permit any person
It
forbidden
or
is
expose
attire as to
person
such
is unclothed or
such
premises while
any
or
any
portion
view
areola of
female breast
portion
buttocks,
hair,
genitals.”
cleft of the
pubic
topless
prohibiting
After
Court held that New York’s statute
Constitution,
was valid under the United States
at licensed
Bellanca,
Liquor
supra,
New
Court of
New York State
Auth.
v.
York
remand, held
statute
invalid under the Constitution
was
Appeals, on
Auth., Liquor
New York. Bellanca
New York State
v.
of the State of
denied,
(1981), cert.
There is no significant Sees, Here, Sees, as in there case. and the supra, were obscene. pa- no contention that performances is Also, the forewarned, no and there was mingling. trons were of decision contains unchallenged memorandum judge’s either the Cabaret or no evidence that that “there is statement of crime such as drug has been the source the Golden Banana assaults or sexual conduct or impro- distribution or disorderly Here, record fails to demonstrate as in prieties.” on the exercise of a restraint imposition justification art. 16. right guaranteed case from Sees this The commission attempts a criminal in Sees that the ordinance imposed on the ground here the violation results only violation whereas for its penalty in nature. We license, which is civil a sanction in loss of a think, however, whether the presenting consequence or civil is criminal entertainment 16 is art. nature, event the freedom in either guaranteed in the absence restrained, is and the restraint impermissible that there history in the record or by legislative a demonstration is such a restraint required to conclude that a rational basis *5 for the public. 12B, “is § that G. also argues
The commission
the statute
analyze
that we “should
law” and
generic
not as a
and
of the state liquor police power
as an expression
their all-alcoholic violated their under rights art. it is us to consider other contentions unnecessary of the plaintiffs.
Judgments affirmed. Hennessey, C.J. The court has decided this (concurring). Sees, case based largely Commonwealth v. upon case, I dissented and I it still believe was view, decided. thus reiterated I wrongly Having my personal court, concur in the decision of because Sees established law, albeit over dissent. applicable my Nolan, J., J. with whom (dissenting, What Lynch, joins). must the muses be when the court once thinking holds again that barroom in the nude free speech? Terpsichore must be uncomfortable at the which her makes jurisprudence form art “free when a cabaret. speech” performed the court
Regrettably, continues of com- deny right munities to themselves from all the that can protect dangers flow from that mischievous mixture of nudity alcohol licensed premises.
I dissent for the reasons stated Chief Justice Hennessey Quirico and Justice Commonwealth Mass. *6 Cabaret Enterprises, I do not that conduct as well as dispute and as
can communicate ideas such may activity protected of the Massachusetts Declaration of under art. 16 Rights. finds entitled to of art. that the activity majority is, in this case as well as Commonwealth supra (which the finds characterized as “nude majority controlling), I would concede that the citizens of the Common- dancing.” nude, wealth have the while either clothed or in the right, communicate ideas. I would also with the court that agree dancers communicate ideas to their audiences in the frequently However, course of their performances. merely characterizing conduct as is not to confer such conduct enough upon afforded art. 16. I would protections speech by require more than a was something showing performer moving her feet or other of her to the portions anatomy accompaniment of music before that communication between the conceding “dancer” and the audience was taking place.