Exotic not nude at Kings Grant Inn

The fate of the Board of Selectmen's "unusual entertainment" policies now rests with a federal judge. Representing the King's Grant Inn, Laconia attorney David Bownes yesterday filed an objection to the town's memorandum challenging a preliminary ruling by United States District Judge Steven McAuliffe that the selectmen's policy regulating exotic — near nude — dancing may well violate the First and Fourteenth Amendments to the U.S. Constitution. Among other things he argues that "nude" and "exotic" are not synonymous terms. The inn originally brought suit in June 2003, after the selectmen repeatedly denied it permits to offer exotic dancing, citing its "significant history of violating alcoholic beverage control laws." The suit claimed that the town's entertainment policy was "vague and overbroad and unenforceable" and was applied in an "arbitrary and capricious manner" and charged that by denying the permits, the town violated the inn's constitutional rights to free speech, due process and equal protection. The town, represented by Matthew Cairns of Ransmeier and Spellman of Concord, countered that its policy was a permissible restriction on speech similar to zoning regulations, which have been upheld by the United States Supreme Court. The town moved for summary judgment in its favor, arguing that the suit raised no issues of law worthy of a trial. But, in November McAuliffe turned the tables by not only denying the town's motion but also finding that "given the applicable legal principles it seems possible — if not probable on this record, that King's Grant Inn is entitled to a judgment as a matter of law on its facial challenge to the Town's policy regulating exotic dancing performances." McAuliffe gave the town 30 days to show why he should not rule in favor of the inn. In December, the town responded with a memorandum arguing that the courts consider "nude dancing as expressive conduct within the outer parameters of the First Amendment...though only marginally so." Cairns maintained that courts have upheld the authority of local governments to achieve "a satisfactory quality of life," so long as they exercise their authority within constitutional limits, and insisted the town's policy, by limiting the discretion of the selectmen, met the test. At the same time, Cairns argued that the selectmen are entitled to qualified immunity because the constitutional protections of exotic dancing are not clearly defined and the board was neither plainly incompetent not knowingly violating the law by withholding the permits. Challenging the veracity of the town's memorandum, Bownes yesterday corrected the presumption that the inn conducted "nude dancing," explaining that its rules and regulations required dancers to "wear appropriate attire (G-strings) and further provided that "'pasties shall be worn by performers at all times. No clear latex pasties shall be allowed.'" Bownes also challenged the town's assertion that the permits were denied when the inn's violations of state liquor laws became evident and claimed that they were withheld "because members of the Board of Selectmen were and are opposed to 'exotic dancing' occurring in Gilford at any time in any manner." Finally, Bownes rejected the notion that exotic dancing was only marginally protected and insisted that well established precedent has ensured that it is "fully protected by the First Amendment." Throughout the inn has contended that the town's entertainment policy is overly broad and fails to limit the discretion of the selection within appropriate constitutional limits. Bownes pointed out that the board granted the inn permits for "unusual entertainment" — a Ms. Bike Week Contest and a Bike Wash — while at the same time denying permits for exotic dancing. Calling this approach "inherently contradictory," he noted that "it illustrates the lack of reasonably objective criteria utilized by the Board of Selectmen in granting or denying these types of permits." Likewise, he argued that because the policy lacked "some objective rationale" for determining what constitutes a "significant history of alcohol violations," it allows the selectmen "to proscribe and limit exotic dancing precisely because its expressive component is content based. It is the Board of Selectmen's denial of the King's Grant Inn's right to convey the message of eroticism which violates the First Amendment," he continued. Without any compelling state or local interest to justify enforcement of the policy, "prurient interests simply do not suffice," he wrote. Turning to the question of qualified immunity, Bownes argues that government officials are shielded against liability only to the extent their conduct does not violate clearly established constitutional rights, of which a reasonable person would have knowledge. When the selectmen denied the permits, he claimed that "there can be no confusion on the part of a reasonable town official that the right to conduct 'exotic' dancing by women dressed in G-strings and wearing pasties was constitutionally protected." Since the inn alleges that the selectmen pursued "their own personal agenda" in denying the permits, disregarding First Amendment rights, Bownes concluded that they are not entitled to qualified immunity, but may be held personally liable for civil damages.