Boston rock club keeps license — for now

Tuesday, July 21, 1998

A Massachusetts state judge extended temporary protection yesterday to a Boston rock club that is embroiled in a battle over its entertainment license with city officials.

The Mayor's Office of Consumer Affairs and Licensing ordered the Paradise club on July 8 to turn in its license, citing more than one violation for overcrowding.

The club then responded by suing city officials in state court, contending the licensing law violates the First Amendment, because it gives government officials “unbridled discretion” to revoke a license.

Superior Court Judge Carol Ball granted a temporary restraining order and then held a hearing last week on the club's request for a preliminary injunction.

Ball decided to extend the temporary restraining order, allowing the club to keep its license. The judge found that club attorneys had adequately spelled out their First Amendment claim.

The judge wrote: “If a statute permits the exercise of 'unbridled discretion' by an agency, then it may be held to be unconstitutional because it raises the possibility of censorship and the abridgment of First Amendment rights.”

Club attorneys assert that the law simply vests too much power in government officials' hands to determine when a license can be revoked. They say one club's license could be pulled after one violation, while another club could continue operating despite several violations.

Ball noted in her order that “on its face, the statute would allow the agency to revoke an entertainment license on the first occasion that an establishment exceeds its occupancy limit by one person, and yet for another establishment, only to modify the license despite repeated violations of an occupancy limit.”

However, the judge delayed ruling on the motion for a preliminary injunction, because “the city has not had an opportunity to fully address the [constitutional] issues.” Ball noted that the parties did not exchange court papers “until virtually minutes before the argument.”

Ball ordered the parties to appear before her on Aug. 3 to file papers and schedule another hearing date.

Carolyn Conway, an attorney for the club, said: “Even though the city is getting another bite at the apple, we are pleased that the judge went immediately to the constitutional issues and recognized where the infirmity lies with this statute.”

The attorney arguing the case for the city of Boston was in court and could not be reached for comment.