Common sense finds no protection

Clive McFarlane
cmcfarlane@telegram.com

T&G STAFF


On Thursday, the Worcester Planning Board passed an entertainment ordinance for the downtown area that, if adopted by the City Council, would make it easier for a strip joint to open next to a school, or a day care center, or a church, rather than a bar.

I asked several city officials to explain the reasoning behind this move.

“The Constitution is written to protect freedom, but sometimes with that great freedom, we don’t get to pick and choose a lot of things,” City Councilor Kate Toomey said, in answering the question.

I must say her answer was at least as prescient as that of City Solicitor David Moore’s reflection on his understanding of the Constitution.

“If the Constitution was clearer, I would be clearer,” he said. “We have to allow them (adult entertainment operations) somewhere.”

Mr. Moore went on to explain that the new ordinance was crafted to reduce crime by limiting the concentration of adult entertainment operations in the city.

But no philosophical cover can protect what is clearly a limp ordinance.

If you haven’t been following the story, here it is in a nutshell:

Adult entertainment — adult bookstore, adult motion picture theaters, establishments that display nudity for its patrons, adult paraphernalia stores, adult video stores — are considered free speech and are thus protected by the U.S. Constitution.

Cities and towns cannot bar such establishments on the grounds that they are immoral or reprehensible, but can restrict their operations as a way of eliminating or reducing criminal activities.

Some time back, the city designated a downtown area ranging from Southbridge Street to Grove Street as a adult entertainment zone. City officials, however, created so many barriers within that zone — adult establishments couldn’t be within 500 feet of property zoned or used for residential purposes, other adult establishments, bars, day care centers, schools, churches, libraries, nursing homes, funeral parlors, hospitals or sanatoriums — that the overall impact was essentially a ban on adult entertainment in the designated zone.

Brendan Robichaud, a local businessman, discovered this when he sought to offer nude dancing at his nightclub, the Seven Lounge, at 287 Main St.

He sued the city, claming its entertainment restriction ordinance was unconstitutional.

The city pretty much agreed with him and, in an effort to get an upper hand in the legal challenge, quickly changed the ordinance to remove all but three barriers to adult entertainment establishments.

Such establishments in the designated area cannot now be within 500 feet of other adult businesses, bars and the main library at Salem Square.

But they could spring up in three downtown areas — along a sliver of an area running along Irving and Linden streets, from Chandler to Bowden; a triangular patch on Old Lincoln Street, on the other side of Highland; and a small angular section in the CitySquare area.

The School Department administration building, the Fanning Building (which houses special needs students), The Nativity School, St. Paul’s Cathedral and a bunch of homes are within the newly established entertainment zone along Irving and Linden streets.

Of course, adult entertainers could perhaps be hard-pressed to find the building space for their operations in the Irving-Linden street area, but Scott Cashman, vice chairman of the city Planning Board and who voted against the new ordinance, said it lacks a rational approach to the issue.

“It is just ridiculous to pass an ordinance that could conceivably place these things next to something like a day care center,” he said. “What we need is a comprehensive approach. We should be looking at the city map and trying to figure where these establishments could be appropriately located.”

That’s common sense, which unfortunately is not constitutionally protected.




http://www.telegram.com/article/20080211/COLUMN44/802110531