Divas v. Bangor, No. 03-1917. You know there is nothing better than a diva in Bangor. The facts are fun:
Diva's opened as nude dancing establishment and juice bar in 1996. In 1999, Bangor amended Chapter 228 of the Bangor Code to add, inter alia, the provision prohibiting nude entertainment establishments from being located within 500 feet of a church. Because Diva's is located next to a church, it is unable to obtain a certificate of occupancy without being granted a variance.... This means, in essence, that female dancers in an establishment that serves alcohol must, in addition to not violating the provisions of Chapter 228, have their buttocks and the areola area of their breasts covered with an opaque covering. [This results in a statutory deeming of the dancer as “less sexy.”]
Anyway, this dispute is quite long, and it involves state appeals, settlements, and all the stuff that most people who represent these adult entertainment facilities are familiar with. Instead, there are Rooker-Feldman issues and “well-plead complaint issues.”
First, the lower court properly dismissed a breach of contract claim, because, the defendant attached a settlement agreement to the complaint: which was referenced in the complaint. Normally this would require summary judgment, "[u]nder First Circuit precedent, when 'a complaint's factual allegations are expressly linked to--and admittedly dependent upon--a document (the authenticity of which is not challenged). Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). But, looking at the agreement, the District Court properly found that there was no contract to issue a permit.
IIED claims against the official failed, because The Maine Tort Claims Act provides statutorily created absolute immunity for the City of Bangor and Individual Appellees from suit for claims "which result[] from . . . [u]ndertaking or failing to undertake any judicial or quasi-judicial act, including, but not limited to, the granting . . . or refusal to grant . . . [a] permit." 14 M.R.S.A. §§ 8104-B(2), 8111(1)(B).
A 42 U.S.C. § 1985(3) (creating a private cause of action "for injuries occasioned when 'two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.”) argument that the defendants conspired against a woman because she was a woman (a under the scope of that statute’s protection) failed, because there was no evidence that they did this, but rather that they conspired against her because she was a purveyor of nude entertainment.
The court found that the city council people were absolutely immune under 1983, because they were acting in an adjudicatory capacity in denying a nude dancing permit. Quoting. Bettencourt v. Bd. of Registration, 904 F.2d 772, 782 (1st Cir. 1990).
The court holds that Rooker-Feldman doesn’t apply when the plaintiff “filed its case in federal court before the enforcement action was filed against it in state court. And, Diva's was not seeking an "appeal" of a state court judgment in federal district court, but instead was, among other things, seeking redress for the City Council's arbitrary and capricious denial of the special amusement permit for impermissible reasons.” The court concludes that although there was no due process claim, “we believe that Diva's has stated a claim that the City of Bangor and the Individual Appellees in their official capacities acted under color of state law to deprive Diva's of its First Amendment right to freedom of speech.” See Maine Supreme Judicial Court opinion here.
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