Boston rock club cries foul after losing license

Friday, July 17, 1998

Attorneys for the Paradise rock club argued in Massachusetts state court on Wednesday that the city of Boston violated its First Amendment rights by revoking its entertainment license.

The controversy arose last week after the mayor's Office of Consumer Affairs and Licensing ordered the club to turn in its license, citing overcrowding violations. In February and April, the Paradise received citations for having approximately 400 persons in the club. Its occupancy limit is 263.

The club fired back with a lawsuit, Mt. Auburn Club, Inc. v. City of Boston, alleging that the license revocation law vests unfettered discretion in government officials and infringes on free-expression activities at the club.

The club contends in a court motion that the statute “is unconstitutionally infirm because its lack of precise standards as to how and when sanctions will be employed permits arbitrary and discriminatory enforcement.”

Numerous U.S. Supreme Court cases have stated that rules regulating First Amendment activity must be precisely drafted to achieve legitimate governmental objectives.

In court papers, the club argues: “Without question, the revocation of plaintiff's entertainment license will result in a total loss of its First Amendment freedoms as the provider of the entertainment, as well as the freedoms of its patrons who choose plaintiff's premises as their preferred place of assembly.”

The club concedes that city officials have a substantial interest in assuring public safety, but state that city officials have “a full range of enforcement mechanisms to ensure public safety” without relying on the license revocation law.

Carolyn Conway, an attorney for the club, emphasizes that the club is home to First Amendment-protected activities. She said: “Dancing and entertainment are a form of free expression protected by the First Amendment.

“Again, the basic problem is that government officials have unfettered discretion to enforce this law, which has no guidelines,” Conway said.

Philip Tracy, another of the club's attorneys, told The Boston Globe that the revocation was a “just a crazy penalty.”

However, city attorney Kabrina Krebel told the paper: “This isn't a case about the Constitution. This is a case about a pattern of behavior putting the lives of patrons and employees at risk when they overcrowd their club.”

The Massachusetts Hospitality Association, Inc., a statewide association representing about 80 licensed businesses in the metropolitan Boston area, has intervened in the case on the side of the rock club.

The association wrote in its motion that the license revocation will have a “substantial chilling effect” on businesses' free-speech rights and cause them to “engage in self-censorship.”

Suffolk Superior Court Judge Carol S. Bell took the matter under advisement, saying she would issue a decision Monday.