Strippers prevail in federal court

The dispute between the King's Grant Inn and the Town of Gilford over exotic — near nude — dancing bumped and ground toward its finale in United States District Court last week when Judge Steven McAuliffe gave the town 30 days to show why its policy regulating striptease is not flatly unconstitutional. The inn, represented by Laconia attorney David Bownes, originally filed suit in June 2003, after the selectmen repeatedly denied it permits to offer exotic dancing. The suit claimed that the entertainment policy is "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 inn sought money damages for the financial losses it suffered, especially during Motorcycle Week. The town, represented by Matthew Cairns of Concord, countered that its policy is 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, arguing that the suit raised no issues of law worthy of a trial. Turning the tables, McAuliffe not only ruled against the town, but also held that "given the applicable legal principles, it seems possible — if not probable on this record, that King's Grant Inn is entitled to judgment as a matter of law on its facial challenge to the Town's policy regulating exotic dancing performances." McAuliffe found that the town's policy "is plainly not a zoning ordinance aimed at restricting exotic dancing to particular geographic locations." Instead, he found, it "is more akin to a licensing scheme that effectively operates as a form of prior restraint on a particular type of artistic speech." Citing several precedents, he explained that the courts consider all forms of prior restraint highly suspect, especially if they do not severely limit the discretion of decision makers and provide effective procedural protections. With approval, McAuliffe quoted a decision of the United States Court of Appeals, 11th Circuit, which held that "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." The "Exotic Dancing and Other Unusual Entertainment" policy provides that the town shall consider "whether the licensee or the proposed performers have a significant history of violating alcoholic beverage control laws or laws relating to public performances in any jurisdiction in the United States." Nevertheless, throughout 2001 and 2002 the selectmen regularly granted permits for exotic dancing, although the New Hampshire State Liquor Commission (NHSLC) found the inn in violation of liquor laws on five occasions. The dispute between the inn and the town erupted in 2003 with the election of Kinney O'Rourke to the Board of Selectmen. According to Bownes's brief on behalf of the inn, two weeks after his election in March O'Rourke, in conversation with Jane Bergeron, "stated his determination that the King's Grant Inn getting permits for exotic dancing was not going to be approved now that he had a voice on the board." Later that month, when the inn requested a permit, O'Rourke expressed his misgivings about making a decision until allegations of liquor violations pending before the NHSLC were adjudicated. Two weeks later when the board considered the request O'Rourke recalled the five earlier violations and referred to three pending violations, which he said "clearly suggests that the applicant has a significant history of violating the alcoholic beverage control laws of the State of New Hampshire." The selectmen — with Alice Boucher joining O'Rourke in the majority — denied the request, along with two subsequent requests later that year. Selectman Dennis Doten has consistently supported the inn's applications. Meanwhile, in January 2004 Darlene Sherman, who managed the inn, was convicted of falsifying evidence (a class B felony) in Belknap County Superior Court. In July Will Drew, who owns the King's Grant Inn, reopened the business as Cocomo's and applied for permits to offer exotic dancing. Three times the selectmen denied his application. On the last occasion O'Rourke read a prepared statement denying that he harbored any "moral objection" to exotic dancing and insisting that "my vote on this and similar applications is based upon evidence, using the language of Gilford's adult entertainment policy, that there is a strong likelihood that the 'licensee (applicant) and the proposed performers may not otherwise be relied upon to comply fully with all state, federal, and local laws, ordinances, and rules with regard to their activities in promoting or providing the proposed entertainment." McAuliffe's order represents a clear victory for Bownes and the King's Grant Inn. It directs the town "to show cause what summary judgment should not be entered in favor of plaintiff (King's Grant Inn), on grounds that the Town's policy regulating exotic dancing performances constitutes a facially unconstitutional and invalid prior restraint on speech protected by the First Amendment." Fortunately for Bownes, McAuliffe apparently holds dancing in higher regard than did his celebrated forerunner on the federal bench, Hugh Bownes, David's father, who presided over the United States District Court in Concord from 1968 to 1977. When the University of New Hampshire sought to forbid gay students from holding a dance, the case reached his courtroom. Bownes's resourceful law clerk suggested that he rule in favor of the students on the grounds that forbidding the dance would violate the students' right to free expression protected by the First Amendment. But, Bownes rejected the suggestion, preferring to strike down the ban on other grounds.