The Town prohibition against serving alcohol in establishments with sexual entertainment or nudity is unconstitutional, the Adult Use Overlay District Committee has learned.The Committee voted to recommend that the appropriate committees in Town examine the bylaw, with at least one member expressing a view that it be taken off the books.
Section 55 of Chapter 13 of the Town’s bylaws finds that it is “contrary to the public need and to the common good” to have establishments serving alcohol that also allow nudity or sexual acts.The bylaw, proposed by the Board of Selectmen, was originally adopted in 1989 and amended in 1997.
However, in 1984, five years before the bylaw was passed, the Supreme Judicial Court ruled that there was no “rational basis to conclude that such a restraint is required for the protection of the public.”The case, Cabaret Enterprises, Inc. v. Alcoholic Beverages Control Commission, overruled a state law that granted municipalities the ability to ban alcohol sales in businesses where there was nudity.
The high court found that even though the United States Supreme Court allowed states to ban alcohol sales at such premises, a ban in Massachusetts would violate Article 16 of the Massachusetts Declaration of Rights.
The article states that the “right of free speech shall not be abridged.”In the Cabaret case the court found that the Constitution “does not expressly distinguish ‘between free speech in a bar and free speech on a stage, and no provision of our Constitution gives a preferred position to regulation of alcoholic beverages.’”
“Only in Massachusetts do we have nude dancing afforded greater protection under our Constitution than under the federal Constitution,” Committee member Sue Carney said.“We are just to the left of Whoopie.”
The conflict between local bylaw and state Constitution was found by town counsel after Committee member Derek Moulton asked about it.Moulton also credited his wife, Alyssa, with doing additional legal research for him.
“We have no defensible grounds for that bylaw,” Moulton said, adding that he did not want to have a bylaw on the books that could result in a losing court case.
Recognizing that the bylaw prohibiting alcohol and nudity was beyond the scope of the Committee’s mission, they voted to recommend that the Selectmen, Planning Board, and Bylaw Review Committee review the provision.
“We can study nudity,” said Committee member Bob Aldous, who is also a member of the Planning Board, to the laughs of fellow Committee members.
At the Committee’s last meeting on July 1, Moulton and Aldous said they had several “tweaks” they wished to propose to the Adult Use Overlay District bylaw.One such tweak Moulton had proposed was to put tougher restrictions in place on the signage that adult businesses could use.
In an email obtained by myDedhamNews, Town Counsel George Pucci cautioned that the bylaw already placed tougher restrictions on signs for adult businesses, and that it also included a “catch-all provision” in which additional restrictions could also be placed as a condition of the special permit.Pucci also advised that current bylaw has the most restrictive nudity provisions allowed under state and federal law.
Facing a reporting deadline of 60 days before an expected special town meeting in November, the Committee did not examine any additional technical modifications to the bylaw.
