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Machera, Law Offices of Joseph J. Machera, Revere, MA, for Plaintiff. Plaintiff, in turn, requests that the Court grant summary judgment on its claims in their entirety against Defendants.

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During the drafting process, Attorney Manby considered similar local ordinances adopted by other Vermont towns. Upon completing the draft and sending it to the Selectboard for review, Attorney Manby recommended that they adopt a resolution stating that they had considered the "secondary effects" of adult entertainment as part of the enactment process.

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Paper 59, Ex. Attorney Manby apparently based his recommendation on the fact that this Court, in upholding a similar ordinance in SBC Enterprises, Inc. Cliche v. City Naked South Burlington women South Burlington, F. Despite this advice from Attorney Manby, the Selectboard did not adopt a statement describing any perceived negative secondary effects that the indecency ordinance was intended to address. During consideration and discussion of the ordinance at two meetings in Aprilthe Selectboard reviewed only the draft ordinance, two letters from Attorney Manby, and similar ordinances ly enacted in other Vermont towns.

The Town Manager and some Selectboard members apparently also discussed potential negative secondary effects with constituents. After a brief public hearing on May 28, at which the Town Manager gave "an overview" of the ordinance, the Selectboard adopted the Town of Hartford Public Indecency Ordinance "the Ordinance" by a unanimous vote.

The Ordinance provides:. The Ordinance defines "Public Place" as "any location frequented by the public," including "business and commercial establishments. Subsequent to enacting the Ordinance, the Town received studies documenting negative secondary effects of adult businesses, and also held a public hearing at which the Selectboard members articulated their rationale for enacting the Ordinanceto combat the negative secondary effects of public nudity.

Paper 61 atEx. Plaintiff argues that the Ordinance violates its protections under the First, Fourteenth, and Fifth Amendments.

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In addition, Plaintiff claims Defendants' conduct violates 42 U. Finally, Plaintiff asserts that the individual Defendants cannot claim qualified, legislative, or statutory immunity. Plaintiff cites for support the undisputed fact that the Town of Hartford did not personally conduct a study of potential negative secondary effects that nude entertainment might have upon the Hartford community, and that at no time during pre-enactment hearings and meetings did the Hartford Selectboard discuss possible negative secondary effects.

Defendants, in turn, argue that the Ordinance meets constitutional standards under the First, Fourteenth, and Fifth Amendments, as well as under Chapter 1, Article 13 and Chapter 1, Article 7 of the Vermont Constitution.

Finally, the individual Defendants assert that they are entitled to qualified, legislative, or statutory immunity. Pursuant to Fed. Hartford Fire Ins. The burden is on the moving party to demonstrate there are no material facts genuinely in dispute. See Feingold v. New York, F. Catrett, U. When ruling on a motion for summary judgment, the court must view the facts and all inferences to be drawn therefrom Naked South Burlington women the light most favorable to the party opposing the motion. Johnson v. Wright, F. As a preliminary matter, the Court must address the justiciability question.

Defendants argue that the case is moot because Plaintiff no longer operates the WRAP due to a fire during the pendency of the current motions. Paper 79 ; Defs. Pap's A. Brian J. Wing and Barbara A. Debuono, F. Davis, U. Here, Plaintiff submitted an affidavit stating that it intends to "continue to provide the same dance entertainment.

Plaintiff's claims, therefore, are not moot; there is a reasonable expectation that upon the WRAP's re-opening, the Town would enforce the Ordinance, subjecting Plaintiff to the same substantial harm. See Pap's A. Pap's is still incorporated under Pennsylvania law, and it could again decide to operate a nude dancing establishment in Erie" ; Clark v. City of Lakewood, F. Richard Riley, Sec'y of the U.

Dep't of Educ. Philbrook, F. Now to the merits. Plaintiff claims that the nude dance entertainment provided at the WRAP is protected expression under the First Amendment. Being in a state of nudity is not an inherently expressive condition. The Supreme Court has consistently held, however, that nude dancing of the type at issue here is expressive conduct that falls within the outer ambit of the First Amendment's protection.

Glen Theatre, Inc. Mount Ephraim, U. Thus, municipal ordinances that regulate nude dancing are subject to constitutional scrutiny. See, e. Manatee County, Fla. To determine what level of scrutiny applies to the ordinance at issue, the Court must determine whether Hartford's Ordinance is related to the suppression of expression.

O'Brien, U. Because the Ordinance bans all nudity within Hartford and does not specifically target expressive nude dancing, it is a facially neutral ordinance, and therefore the Court will evaluate it under the four-factor test for expressive conduct set forth in O'Brien, U. See SOB, Inc. County of Benton, F. South Salt Lake City, F. Under O'Brien, an ordinance is valid if 1 the government regulation is within the constitutional power of the government; 2 the regulation furthers an important or substantial government Naked South Burlington women 3 the government interest is unrelated to the suppression of free speech; and 4 the restriction is no greater than is essential to the furtherance of the government interest.

The Ordinance meets the first and fourth O'Brien factors.

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Regarding the first factor, there is no doubt that the Ordinance is within the government's lawful powers. The fourth factor of the O'Brien test requires that any incidental restriction on alleged First Amendment freedoms be no greater than essential to further the government's interest. The plurality in Pap's A. O'Brien test because "the requirement that dancers wear pasties and G-strings is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancer's erotic message.

The same conclusion can be reached here, and therefore the Ordinance meets O'Brien 's fourth factor. The third O'Brien factorwhether the government interest is unrelated to the suppression of free expressionfollows from the secondregarding whether the Ordinance's purpose furthers an important government interest. It appears that the third factor is satisfied here because the Selectboard has subsequently stated that its interest in passing the Ordinance was to prevent the secondary negative effects associated with nude adult entertainment, not merely to suppress erotic expressive speech.

Steadman has stated that, as Chair of the Selectboard, "I put the ordinance on the agenda because of my desire to protect economic development opportunities within the Town," and at a September 9, public hearing, the Selectboard stated its rationale for enacting the Ordinance, based on the potential for negative secondary effects. It is the related second factor, however, that Naked South Burlington women problematic.

Defendants assert that the Selectboard enacted the Ordinance to combat negative secondary effects.

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To satisfy the second O'Brien factor, however, the Town of Hartford must demonstrate that the Ordinance furthers the Town's substantial interest in preventing the secondary effects associated with adult entertainment.

Playtime Theatres, Inc. Because the evidentiary standard continues to evolve, we address it in some depth. The Supreme Court's secondary effects jurisprudence is riddled with a of no-clear-majority decisions. The current standard, however, for deciding whether an ordinance furthers the government's alleged interest in combating the negative secondary effects associated with sexually oriented speech in general, and nude dancing in particular, is described in Renton and utilized in Barnes, Pap's A.

Renton, U. The government need not produce actual proof that its remedy reduces secondary effects; the Supreme Court has held that such a requirement "would go too far in undermining our settled position that municipalities must be given a reasonable opportunity to experiment with solutions" to address the secondary effects of protected speech.

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