April 19, 2024
BANGOR DAILY NEWS (BANGOR, MAINE

Diva’s owner granted injunction > Judge: ordinance unconstitutional

BANGOR — The owner of Diva’s was nearly speechless after getting a federal court injunction that will allow her to license her exotic dance business.

“How can you feel when a federal judge rules in your behalf?” Diane M. Cormier said Wednesday with obvious excitement in her voice. “I’m pretty happy. I feel that justice has prevailed, and the judge made the right decision.”

U.S. District Court Judge Morton A. Brody issued the 10-page decision Wednesday barring the city of Bangor from enforcing one portion of its new ordinance regulating commercial nudity — the clause preventing an exotic dance business from getting the necessary special certificate of occupancy if the owner also operates a booking agency. Cormier owns and operates The Bod Squad, which books private performances outside Diva’s.

Cormier did not object to the other parts of the ordinance, which limits the nudity to toplessness and imposes several other regulations, such as hours and place of operation.

Despite Wednesday’s ruling, both Diva’s and Deb’s, an exotic dance establishment owned by Debera Pinette, will have to move out of downtown Bangor in one year due to zoning requirements of the ordinance, although each can request a one-year extension due to financial hardship.

In writing his decision, Brody agreed with Diva’s attorney, Wayne Foote of Bangor, that the clause of the ordinance exceeds the bounds of the Constitution by acting as a “prior restraint.”

“The doctrine of prior restraint prevents the government from quelling expression in advance of its communication,” Brody explained.

The judge also agreed with Foote that the term “booking agency” was so vague that it also made the clause unconstitutional.

The term, he wrote, “could conceivably encompass any business that contracts with consumers and performers to provide any type of performance, not just nude dancing.”

Brody accepted the city’s claim that the clause was intended to reduce prostitution, and said that the goal was “a substantial government interest.” However, he continued, the city didn’t show a relationship between prostitution and the joint ownership of the two kinds of businesses — the dance club and the booking agency.

Rather, Brody said, studies from other states supported “no more than” the idea that nude dancing establishments by themselves “may be associated with certain crimes, including prostitution.”

He also agreed with Foote that without the injunction, Diva’s would suffer “irreparable harm” through loss of income, goodwill and the right to free speech, and noted that the city is able to address prostitution or other criminal conduct through enforcement of the law.

The city now has at least three options: Do nothing, and issue the certificate of occupancy to Diva’s; appeal the decision to the 1st U.S. Circuit Court of Appeals in Boston; hold more public hearings with the possibility of rewriting the clause and creating more of a “legislative record” backing up the city’s claim that there is a connection between prostitution and joint ownership.

City Solicitor Erik Stumpfel said Wednesday he didn’t know whether the city would consider further action, because that decision belonged to the City Council. The council will be briefed in an executive session, possibly as soon as Monday. “I don’t want to comment on what the council will do,” he said.

Stumpfel did say that Brody’s concerns about “vagueness” in the ordinance could “be remedied by defining `booking agency.’ That’s a fixable problem.”

As for the judge’s contention that Bangor did not establish the connection between prostitution and the two kinds of businesses having one owner, Stumpfel said he was not convinced that the city didn’t offer enough evidence. But, he said, the brief may not have done a good job in pointing out all the evidence in the lengthy record, which included transcripts of several city hearings.

One piece of evidence Stumpfel submitted was an account of an incident in which two of Cormier’s employees from her former Studio 1431 dance club were arrested for prostitution at a Brewer motel.

Brody wrote that the incident did not show a connection “between nude dancing establishments, booking agencies and prostitution.”

Judge Ronald Russell dismissed the charges in 3rd District Court, Stumpfel acknowledged, but was “very clear” about the connection between the two businesses, he said.

Cormier said that Foote did “a phenomenal job” on the injunction case, and called Brody’s decision “very positive for all small businesses. The decision is going to send a message that government interference setting limits on the number of businesses you can own is unconstitutional.

“The Constitution rules in our favor,” she said, “because of personal choices, and it’s a legitimate business and has been protected under the First Amendment.”

Other kinds of businesses can operate both on site and at other locations, Cormier pointed out. “My philosophy is, if you make pizzas, you ought to be able to deliver.”


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