WORCESTER - The Paris Cinema will remain closed for at least two more
weeks after city officials told a judge yesterday that code violations have
not been repaired at the Franklin Street X-rated movie theater.
The building has been closed since April 25, when a judge issued a
restraining order closing the business for code violations, and three months
after a police raid there led to the arrests of 22 men on sex charges.
City officials plan in future hearings to seek a temporary injunction,
and possibly a permanent injunction, to keep the building closed. They also
raised new concerns that asbestos dust may have spread throughout the
building. Officials said inspectors won't enter the facility until an
air-quality test can be conducted.
"That would pose a very serious health risk to anyone who walks into that
building," Assistant City Solicitor Ann S. Refolo said.
Housing Court Judge Diana H. Horan extended a restraining order
forbidding the business from operating to May 18, until another hearing to
determine whether repairs have been made. She required Mark Hurwitz,
representing his father, building owner Robert Hurwitz, to have the air
quality tested by May 16. City officials can review the results of the tests
and determine whether to inspect the facility the next day, in time for the
May 18 hearing.
"I would expect this building would be up and running, and all permits
pulled and all repairs completed by May 18," Judge Horan said.
Lawyer Burton Chandler, representing the Paris Cinema, has stayed away
from the Housing Court hearings before, saying most of the repairs required
were the responsibility of Mr. Hurwitz and not the tenant. He made an
appearance yesterday, and he persuaded Judge Horan to have the owner of the
building do the air-quality test on his own.
Mr. Chandler said city officials have political motives to shut the
cinema down, because they don't like the nature of the business, so he
assumes that air-quality test results, even if they prove there's no
asbestos, would still not pass muster with city inspectors.
"I have no confidence in the integrity of any testing the city would come
out with," Mr. Chandler said, requesting that inspectors be kept from the
building until the building owner could make repairs and have the tests
done.
The asbestos concern was one of several in a code order the city sent Mr.
Hurwitz and the Paris Cinema in January, giving them seven days to make
repairs or shut down. Mr. Chandler, on behalf of the cinema, appealed the
order to a state hearing board, triggering a stay of the order to halt
operations.
Last month, the state board gave the cinema several deadlines to make
repairs, with the most recent due by April 20.
The city sought the restraining order in Housing Court several days after
the deadline, arguing the repairs were not made. Mr. Chandler said then that
all repairs not made were Mr. Hurwitz's responsibility.
At the Housing Court hearing, Mark Hurwitz asked for more time, saying
his father was not aware of the deadline the state board set in the hearing
with the cinema until only a week before repairs were due. Robert Hurwitz
sought his own hearing before the state board, but the hearing was canceled
after the board had set the deadlines for the Paris Cinema.
Mark Hurwitz, speaking for his father on April 25, said all the repairs
would be made soon, but he asked for time to hire engineers. Judge Horan
granted the city's request for a restraining order, and she scheduled the
update hearing for yesterday.
Mark Hurwitz said all the necessary repairs have been made, but city
officials argued they hadn't been made to code requirements. The city also
questioned the credentials of Mr. Hurwitz's engineers, and it argued that no
permits for the repairs were issued, so the repairs were made illegally.
Moreover, Ms. Refolo said yesterday that city inspectors reviewing the
building before yesterday's hearing were alarmed to find that concrete
debris in an unused section of the facility had been removed. City
inspectors have said before that the debris could be laden with asbestos,
and they argued that the debris and any hazardous material be removed in
accordance with health and safety guidelines.
Ms. Refolo said inspectors fear the debris was removed in violation of
health and safety guidelines and that asbestos dust could be floating in the
building. She said inspectors will not enter the building, out of fear of
health risks, until an air-quality test is done.
Mark Hurwitz said the debris is simply plaster and that all asbestos
already has been removed. He said a contractor repairing the building's
sprinkler system wouldn't have worked unless the asbestos was removed. Judge
Horan ordered the air-quality tests done.
The city's attempts to close the Paris Cinema began in January, after the
arrests of men engaging in sexual acts inside. District Attorney John J.
Conte filed civil and criminal complaints calling the cinema a nuisance and
seeking its closing. A trial is pending, but a Superior Court judge already
has issued a preliminary injunction ordering the cinema to hire more
security staff to curtail the sex acts. The order forced the cinema to close
one of its two theaters to minimize the number of staff it would have to
hire.
Days after the initial police raids, the city Department of Code
Enforcement issued the code orders. The department had been prepared to
issue the orders in December, but it waited until the Police Department
could conduct its sting in what officials called a multipronged approach to
address concerns at the cinema.
Mr. Chandler questioned the seriousness of the code repairs, however,
saying officials wouldn't have waited to issue the order if they felt the
building's condition posed a serious threat. He has accused city officials
of hyping the code violations as a pretext to close the Paris Cinema.
April 26, 2005
Judge orders Paris doors shut -
Cinema to stay closed until owner makes required repairs
Author: Shaun Sutner,
Worcester Telegram & Gazette (MA)
WORCESTER - The Paris Cinema, the downtown theater offering X-rated movies,
was closed by court order yesterday, three months after a police raid there
led to the arrests of about 20 men on sex charges.
After an hourlong hearing yesterday morning, Housing Court Judge Diana H.
Horan issued the cease-and-desist order sought by city officials that requires
the business to close until building landlord Robert J. Hurwitz completes
repairs. They include fixing or replacing a corroded fire escape, installing
lighted exit signs and extending the sprinkler system.
"There's some serious conditions in there that threaten the safety of
anyone in the building and anyone walking by," the judge said.
Mr. Hurwitz has 10 days to comply, but it is unclear whether the theater
operators, Marilyn Leone and Can-Port Amusement Corp., will reopen the
business at 68 Franklin St., which supporters say has been unfairly targeted
by the city in its effort to sanitize and redevelop downtown.
The adult cinema's lawyer, Burton Chandler, notified the city Legal
Department on Friday that he would not contest the closure, saying it is Mr.
Hurwitz's responsibility, not his client's, to remedy the code violations.
"If he does what he's prepared to do, I guess the tenant will reopen," Mr.
Chandler said. Asked what his client will do in response to the shutdown
order, he replied: "I guess they'll lock the door and leave."
Mr. Hurwitz's son, Mark Hurwitz of Barre, represented his father in court
yesterday, after Mr. Chandler had informed the city he would not attend the
hearing.
Over the objections of Ann S. Refolo, the city's lawyer, the judge said she
would allow the younger Mr. Hurwitz, who is not a lawyer, to speak for his
father because he has been taking care of the property since February. Mark
Hurwitz said his father, whose address on court documents is listed as Boca
Raton, Fla., has health problems.
He argued that the property owner has not been given enough time to finish
all the repairs, has had trouble hiring an engineer because of what he called
negative publicity in the Telegram & Gazette, and has been delayed by winter
weather and holidays in fixing some problems, such as stopping roof leaks
above exposed electrical wires.
"No one wanted to touch that property with a 10-foot pole," Mr. Hurwitz
told the judge, explaining how nine local engineers he called did not want to
work on the building because of newspaper reports about its problems.
He said an engineering report on the structural problems of the 80-year-old
building will be ready by the end of the week, and new lighted exit signs will
be put up within a few days. Mr. Hurwtiz also maintained that the fire escape
was repaired in 2001 and was certified as sound by an engineer.
But David F. Holden, a civil engineer and the city's director of code
enforcement, said the fire escape is not safe.
"I found the condition of the structural steel severely deteriorated,"
testified Mr. Holden, who inspected the fire escape two weeks ago. The
structure is "incapable of supporting the loads it was designed to hold."
A city building inspector, Joseph Sansoucy, testified that the lack of
lighted exit signs also is dangerous. "There's absolutely no way of knowing
there's an exit to the room, it's so dark."
Ms. Refolo argued the theater poses an immediate safety danger and should
be shut down. "There are certain building code violations at the property that
do present a threat to life and safety," she stated.
The judge ordered the theater to close at 3 p.m. yesterday so city
inspectors could begin examining the facility. Another hearing is set for May
4.
Yesterday's Housing Court session was the latest in a string of hearings
and court developments since the Paris Cinema's legal problems began with the
first police raid on Jan. 15.
After the city issued the business several orders to fix the code
violations, the state Board of Building Regulations and Standards on April 7
established three sets of deadlines for repairs, with the most immediate work
due April 20.
Last week's deadline required the theater to have an engineer inspect a
crumbling projection booth, remove combustible items stored in an adjacent
warehouse, repair a blocked exit door, install the lighted signs and have the
fire escapes certified by an engineer.
While Mr. Hurwitz said some of the work has been done, including removing
the flammable items and replacing the exit door, the city went to court
yesterday because the deadline had not been fully met.
Work that still must be performed by May 11 includes expanding the
sprinkler system to reach the warehouse, having a professional evaluate
asbestos falling from the ceiling, and replacing all electrical panels and
equipment.
April 24, 2005
City seeks order to close cinema
Author: Milton J. Valencia,
Worcester Telegram & Gazette (MA)
WORCESTER - City lawyers will head to court tomorrow seeking an immediate
order to close the Paris Cinema, alleging the adult theater and the owner of
its building failed to meet a state deadline to make structural repairs.
However, the building owner, Robert J. Hurwitz, speaking publicly about
the case for the first time, questioned the city action, saying officials
hyped the alleged code violations as a cloak to close the X-rated movie
theater because of the type of business it is.
"The building itself is so safe," Mr. Hurwitz said. "It isn't going
anywhere."
At issue is a state board's ruling ordering Mr. Hurwitz and the theater
to make a number of structural repairs or close. The board gave three
deadlines, with the most immediate repairs to be completed by last
Wednesday. The ruling was in response to an appeal the cinema filed after
the city sent its own cease-and-desist order in January, giving the cinema
seven days to make repairs or shut down. The cinema's appeal triggered a
stay of the city order, and the state board held a hearing April 7.
The city Law Department announced Friday that it will seek an order in
Housing Court tomorrow to have the cinema closed for failing to meet the
first deadline.
According to the state board's ruling, the cinema and Mr. Hurwitz by
Wednesday were supposed to have had a public engineer inspect a projection
booth and determine its structural integrity, remove combustible items
stored in a warehouse used by the cinema, repair an exit door in the
warehouse and install appropriate signs leading to it, and have all fire
escapes certified by a public engineer.
Burton Chandler, a lawyer for the cinema, questioned the urgency of the
repairs during the state hearing. He accused city officials of using the
violations as a pretext to close the cinema. Mr. Chandler noted code
inspectors knew of the alleged violations in December, but waited until the
Police Department could conduct its own sting into alleged sex acts
occurring inside. After an initial raid netted 17 men, garnering much
publicity, the code inspectors issued the cease-and-desist order.
Members of the state Board of Building Regulations and Standards ignored
the accusations of political motivation, however, and set the deadlines,
with board members saying their job was to review code violations.
Mr. Chandler said Friday that whatever repairs haven't been made were not
the theater's responsibility and were the obligation of Mr. Hurwitz.
"There's nothing my client can do about it," he said. He said he was not
sure if he would attend tomorrow's hearing.
Mr. Hurwitz, speaking from Florida, said he or a representative will
attend tomorrow's hearing, saying he hopes to make his case that the alleged
violations were hyped and that the building is structurally safe.
Mr. Hurwitz said insurance inspectors review the building yearly and
never raised concerns. He also said building inspectors review the building
yearly, but never raised concerns to the level a cease-and-desist order
would be issued.
He, like Mr. Chandler, questioned why code inspectors never issued the
order in December when it had already been prepared, instead waiting for the
police to conduct a sting into sexual acts.
"If this was a dangerous building, shame on them for doing that," he
said.
He said city officials have exaggerated the seriousness of the violations
since the initial arrests were made. The police raids began in January, and
in multiple raids 22 men were arrested for allegedly engaging in sex acts
inside the theater. The arrests resulted in District Attorney John J. Conte
filing civil and criminal complaints calling the theater a nuisance. A trial
is pending, but a judge has already granted a preliminary injunction
requiring the cinema to hire security staff. As a result, the cinema closed
one of its two theaters to minimize the number of staff it must hire.
Mr. Hurwitz suspects the arrests and code action are part of a larger
effort to close the adult theater because of the nature of the business. The
theater, located downtown, across the street from City Hall, is surrounded
by properties undergoing major revitalization. City Manager Michael V.
O'Brien, stressing the city action was a result of what he called ongoing
problems at the cinema, added he would like to see the best market use of
the property.
Mr. Hurwitz, who has entertained offers to sell the property, said city
officials haven't encouraged him to sell. He did note, however, that he
received a letter from Police Chief Gary J. Gemme advising him that he has
the legal right to terminate the lease with the cinema because of the recent
arrests.
Court ordered 3 step
schedule
Worcester Telegram & Gazette (MA)
WORCESTER - The city is reviewing repairs the Paris Cinema says it made to
its building on Franklin Street under a state order to correct city code
violations or halt operations.
The repairs were ordered to be made by Wednesday,
under an order from the state Board of Building Regulations and
Standards, a branch of the Department of Public Safety. The board set
three deadlines for the adult cinema to meet a number of repairs during a
hearing earlier this month, with the most immediate repairs due Wednesday.
The repairs were outlined in a cease and desist order the city sent to
the theater in January, giving the cinema seven days to bring the
structure up to code or halt operations. Burton Chandler, a lawyer for the
cinema, appealed the orders, triggering a stay of the cease and desist
deadline until a hearing earlier this month. After deliberations, the
board set the deadlines for repairs, based on the initial orders the city
sent in January.
If the cinema does not meet any of the three deadlines, the city can
seek to implement the cease and desist order.
City Solicitor David M. Moore said yesterday that the city Department
of Code Enforcement and the Law Department are reviewing repairs the
cinema says it made, and paperwork that was submitted before deadline. Mr.
Moore said the city will not make a decision until reviewing all the
paperwork, which he said could take a couple of days. He would not
speculate on the review of the repairs.
"We have to decide what action to take depending on our analysis of the
situation," Mr. Moore said. If the city concludes the initial repairs were
made by deadline, the Paris must meet the second and third deadlines as
well. If not, the city could then seek to implement the cease and desist
order.
According to the state board's ruling, the Paris by Wednesday was
supposed to have a public engineer inspect a projection booth and
determine its structural integrity; remove combustible items stored in a
warehouse used by the cinema; repair an exit door in the warehouse area
and install appropriate signs leading to it; and have all fire escapes
certified by a public engineer.
By May 11, the cinema must fix the sprinkler system in the warehouse
area; retain a professional to evaluate concerns of asbestos in insulation
falling from holes in the ceiling; and replace all electric panels and
equipment and bring them up to code. By June 10, the professional hired to
evaluate concerns of asbestos must submit his report.
The cease and desist orders were only part of what became a multi-front
plan to address what were called problems at the cinema. In January, the
Police Department arrested men allegedly engaging in sexual acts inside
the theater. Soon after, District Attorney John J. Conte filed civil and
criminal nuisance complaints alleging that the theater created a nuisance.
A trial is pending, but a Superior Court judge has already granted a
preliminary injunction forcing the cinema to hire security staff to
curtail the sex acts. The cinema decided to close one its two theaters to
minimize the number of staff it had to hire.
Paris facing repair target -
Review begins of first phase
Worcester Telegram & Gazette (MA)
Author: Milton J. Valencia
WORCESTER - The Paris Cinema was working until the end of the business day
yesterday to meet a state deadline to complete repairs to the structure or
halt operations, officials said.
City officials could not say whether the adult cinema or the owner of
its structure, Robert J. Hurwitz, met a deadline set by the state Board of
Building Regulations and Standards, a branch of the Department of Public
Safety.
On April 7, the board set three phases of deadlines for the Paris
Cinema and Mr. Hurwitz to make repairs or halt operations, with the most
immediate repairs due yesterday.
At least one city inspector was at the cinema, 68 Franklin St.,
yesterday, looking over the building.
City Solicitor David M. Moore said yesterday afternoon that he was told
by a representative of the theater that all necessary paperwork would be
submitted to the city Department of Code Enforcement by the end of the
business day yesterday.
However, Mr. Moore said the Department of Code Enforcement would have
no official determination of whether the deadline had been met until
inspectors reviewed the paperwork, most likely today.
"With some (of the documents) we may have to do more than just read
it," Mr. Moore said. "We need to take a look at them."
He said the Department of Code Enforcement could have a decision today
on whether the first deadline had been met.
The department has the onus of reporting to the Board of Building
Regulations and Standards whether the cinema met the deadline. If so, the
cinema must meet the second deadline. If not, the city may petition the
board to certify its ruling that the theater has not met the deadline,
forcing its closure.
Yesterday's deadline required the cinema to have a public engineer
inspect a projection booth and determine its structural integrity, remove
combustible items stored in a warehouse used by the cinema, repair an exit
door in the warehouse area and install appropriate signs leading to it,
and have all fire escapes certified by a public engineer.
By May 11, the cinema must fix the sprinkler system in the warehouse
area, retain a professional to evaluate concerns of asbestos in insulation
falling from the ceiling, and replace all electric panels and equipment
and bring them up to code.
By June 10, the professional hired to evaluate concerns of asbestos
must submit his report.
The state board held a hearing on the alleged code violations after the
Paris Cinema appealed the city's orders to make repairs within seven days
or halt operations, triggering a stay of the orders. Burton Chandler, the
cinema's lawyer, contended the repairs were a pretext to close a
constitutionally protected business simply because officials don't like
it. At the hearing, Mr. Chandler argued officials were politically
motivated in ordering the repairs and hyped their immediacy. He questioned
why the cinema was only given seven days to make the repairs or close,
when city officials had known of the alleged code violations for months.
The state board ignored the allegations of political motivation,
however, with members saying they would look strictly at the alleged
violations. After closed-door deliberations, the board set the deadlines.
The code enforcement action was part of a multipronged approach the
city took to remedy what were called a "multitude" of problems at the
cinema.
The Code Department had been prepared to issue the orders to make
repairs in December, but waited until the Police Department could conduct
a separate sting against illegal sex acts allegedly occurring inside.
During multiple police raids that began in January, 21 men were arrested
on charges of engaging in sex acts inside the theater, some in groups and
others by themselves.
District Attorney John J. Conte became involved soon after, filing
civil and criminal charges alleging the theater has created a nuisance and
so should be closed. A trial is pending, but Mr. Conte secured an early
victory when a Superior Court judge granted a preliminary injunction
declaring the cinema to be a nuisance. The injunction ordered the theater
to hire security staff to curtail sex acts.
As a result, the cinema closed one of its two theaters to minimize the
number of staff it would have to hire.
April 8, 2005
Paris Cinema given 2 weeks to do repairs -
Cease and desist threatenedAuthor: Milton J. Valencia,
Worcester Telegram & Gazette (MA)
WELLESLEY - The Paris Cinema has two weeks to
make structural repairs or halt operations, a state appeals board ruled
yesterday during a testy hearing that saw the adult movie theater's lawyer
accuse city officials of political motivation in their attempts to close
the downtown cinema.
The state Board of Building Regulations and Standards, a branch of the
Department of Public Safety, ignored the accusations of political
motivation, however, with members stressing that their jurisdiction was to
review what were called serious public safety threats at the cinema, 68
Franklin St. The board gave the cinema three deadlines to make a plethora
of repairs, with the most dire restorations due April 20.
"Whatever you do, do not, please, close us down," Burton Chandler, the
lawyer representing the theater, told the board. "I'd like to have a
certain amount of time to put our act together" and make repairs, he said.
He originally asked for 45 to 60 days.
Mr. Chandler had appealed a city order issued in January giving the
cinema and building owner Robert Hurwitz seven days to renew the
structure's certificate of inspection or close. The order listed several
code violations the cinema needed to remedy before it could pass
inspection. The appeal triggered a stay of the order.
Mr. Chandler accused city officials of hyping the code violations as
public safety threats as a pretext to close the business.
He noted the city had been prepared to issue the order in December, but
waited until the Police Department could conduct a separate investigation
into illegal sex acts occurring inside the theater. That investigation
netted 22 arrests and resulted in criminal and civil nuisance charges
against the Paris alleging it has maintained a public nuisance. A trial on
those charges is pending.
Mr. Chandler questioned the immediacy of the city's cease and desist
order, saying officials couldn't have thought the cinema posed a public
safety threat if they allowed the business to continue while the police
conducted the sting.
"In their mind, I don't believe there is a real emergency of life, limb
and health going on," he said, at one point asking a city code inspector
whether anyone in the city manager's office told him to stall the cease
and desist order. "This is a political issue, and not a structural issue."
The question about who ordered the delay wasn't answered, however, as
the board attempted to regain order in a hearing that at times saw
exchanges between city officials and Mr. Chandler. The Worcester-based
lawyer had summoned several city inspectors and their records to the
hearing, at one point calling for sanctions because Building Inspector
Joseph Sansoucy did not bring records of inspections.
Mr. Chandler had also summoned city Manager Michael V. O'Brien to
question him on his motivations to close the theater, noting the manager
has said in newspaper reports that the cinema paints an ugly picture of
downtown at a time he is pushing for revitalization in the area. Investors
have spent millions of dollars in the area, Mr. Chandler noted, and
several have expressed interest in acquiring the property where the cinema
is located, to build condominiums. Mr. O'Brien has said the code
enforcement and police actions were not related to the investment.
Nevertheless, the Department of Public Safety quashed the subpoena on
Wednesday, ruling yesterday's hearing would be based on allegations of
code violations and Mr. O'Brien would have no direct knowledge of the
violations.
Assistant City Solicitor Ann Refolo said several of the violations date
back to 2002, when the city filed complaints against Mr. Hurwitz in
Worcester Housing Court. Mr. Hurwitz had been under court order to make
repairs to the structure and fix a sprinkler system, but they weren't
completed properly, she said.
She said the cease and desist order was a final effort to have the
violations addressed, and said the business was named in the complaint
because it would be affected by the closure of the building. Mr. Chandler
represents the cinema but not Mr. Hurwitz, who did not attend yesterday's
hearing.
In the end, the board gave the cinema more time to address the code
violations. If the cinema does not meet any of the deadlines, the board
will affirm the city's order to halt operations, said Katie Ford, a
spokeswoman for DPS.
During the hearing, fire inspectors testified that a sprinkler system
in a section used as a warehouse isn't completely functioning, and a
wiring inspector said several wire panels are exposed, creating a fire
hazard. The roof leaks, and plaster has been falling from the ceiling.
Sections of the roof are exposed, leading officials to fear asbestos has
fallen through.
"The structural element is ... the basic structure of the theater is
falling apart," said David Holden, the city's director of code
enforcement.
Tim Rodriquecq, chairman of the appeals board, at one point asked why
the city hasn't formed a survey committee or invoked other state laws
pertaining to abandoned structures to address concerns of the warehouse in
the corner of the building, particularly because the warehouse's exit door
is blocked. Inspectors said they hadn't considered other laws because they
instead sought housing court orders to have repairs made.
Board member Brian Gore asked city officials what they thought their
primary concern was with the building, and Mr. Holden told him it was a
part of the structure where a projector booth hanging from a wall appears
it may fall in a public.
The appeals board gave the cinema a two-week deadline to make a number
of repairs. Among them, the cinema must have a public engineer inspect the
projection booth and determine its structural integrity; remove
combustible items stored in a warehouse used by the cinema; repair an exit
door in the warehouse area and install appropriate signs leading to it;
and have all fire escapes certified by a public engineer.
By May 11, the cinema must fix the sprinkler system in the warehouse
area; retain a professional to evaluate concerns of asbestos in insulation
falling from holes in the ceiling; and replace all electric panels and
equipment and bring them up to code.
The professional hired to evaluate concerns of asbestos must submit his
report by June 10
April 2, 2005
Paris plans partial closing -
Lawyer says 2 monitors would bankrupt cinema
Author: Richard Nangle,
Worcester Telegram & Gazette (MA)
The following correction was published April 5, 2005:
Several recent stories in the Telegram & Gazette incorrectly identified the
owner of the Paris Cinema in Worcester. The cinema itself is owned by Can-Port
Amusement Corp. The building in which it is housed, 68 Franklin St., is owned
by Robert J. Hurwitz. Superior Court Judge Peter W. Agnes on Thursday issued a
preliminary injunction against the corporation and Mr. Hurwitz for unlawfully
keeping and maintaining a nuisance at that location. On Friday, he ordered
Can-Port to station a worker in its theaters at all times to prevent patrons
from engaging in sex acts.
WORCESTER - A Superior Court judge yesterday ordered a downtown adult movie
house to station a worker in each of its two theaters at all times to prevent
patrons from engaging in sex acts. As a result, the owner of the Paris Cinema
decided to close its upstairs theater.
Judge Peter W. Agnes left open the possibility that the Paris could return
to normal operations in a short time absent further reports of lewd behavior
there.
Burton Chandler, lawyer for the cinema, located at 68 Franklin St., told
the court the costs associated with new hires would effectively shut down the
theater. As an alternative, he suggested the Paris would close its upstairs
theater and that the worker at the ticket office would police the downstairs
theater.
But Judge Agnes rejected that approach, saying his decision to declare the
cinema a public nuisance precluded it from policing itself with its current
staffing. Assistant district attorneys assigned to the case had asked for
police officers to be stationed in both theaters. Mr. Chandler said they would
be even more costly than hiring new staff.
Judge Agnes said he had not been aware that the cinema was in financial
trouble and urged Mr. Chandler to approach the court in the near future to ask
for relief from the injunction. Mr. Chandler received a stay of the injunction
until Monday.
The decision comes in the wake of several police raids beginning Jan. 14
that netted 22 arrests on charges of committing various sex acts. District
Attorney John J. Conte followed up by filing civil and criminal complaints
alleging the cinema to be a public nuisance. Mr. Chandler filed motions to
dismiss the cases, and Mr. Conte sought the preliminary injunction as
immediate relief before a May 6 hearing.
In his ruling Thursday, Judge Agnes likened the cinema to a prostitution
house because patrons could expect to engage in sexual acts inside the
theaters for the price of the admission fee. He raised the specter of AIDS and
other sexually transmitted diseases, noting that none of those arrested was
wearing condoms.
Judge Agnes ordered the cinema to make clear to its patrons that exposure
of genitals and oral and anal sex would be prohibited there at all times and
that violations would result in civil and criminal penalties.
Mr. Chandler said hiring two workers to police the theaters could cost the
cinema up to $100,000, as the theaters are in operation 90 hours a week.
"It's destroying our business, and I don't think it's right," he said. "My
clients cannot afford to spend the money. The theater and its constitutionally
protected films will have to be closed."
After the hearing, he said he would contact the theater owner, Robert J.
Hurwitz, (SEE CORRECTION) to decide on an immediate course of action. And
later in the day he said Mr. Hurwitz decided to close the upstairs theater in
order to comply with the judge's ruling.
Mr. Chandler has appealed city Department of Code Enforcement orders to
immediately halt operations because of building code violations. A hearing
before an administrative board is set for April 7.
For the reasons set forth in the Memorandum of Decision and Order dated
March 31, 2005, a Preliminary Injunction is hereby issued in accordance with
G.L. c. 139, § 6 whereby the defendants Can-Port Amusement Corporation
d/b/a Paris Cinema and Robert J. Hurwitz are hereby ORDERED and ENJOINED
against keeping and maintaining a nuisance at the location known as the Paris
Cinema at 68 Franklin Street in the City of Worcester in violation of G.L. c.
139, § 4. And the said defendants are hereby ORDERED and ENJOINED to cease
and desist from directly or indirectly maintaining or permitting such nuisance
by taking the following measures until further order of the court:
(1) The defendants shall advise its employees and agents that during hours
when the Paris Cinema is open to the public, acts including exposing one’s
genitals, oral sex, and anal sex committed in its two theaters (upstairs and
downstairs) at all times when films or other performances are being exhibited
are prohibited, and may subject the persons involved in committing any of
these
acts and the defendants to civil and criminal penalties;
(2) During hours when the Paris Cinema is open to the public the
defendants
shall require an employee or responsible agent (which, at the
option of the
defendants could include a police detail person) to be
present and remain in
its two theaters (upstairs and downstairs) (at
least one such employee or agent
per theater) at all times when films or
other performances are being exhibited
with instructions to make
observations of the conduct of all persons who are
present and to remove
any person from the premises who exposes his or her
genitals, or who
performs acts commonly referred to as oral sex, or anal sex
.
(3) The defendants shall display a notice containing a copy of this
injunction in a prominent location in the lobby of their premises and near the
entrance to each of the two theaters on their premises, and make the same
available to any patron who requests it, and shall take reasonable steps to
insure that the notice remains visible and legible to persons who enter the
Paris Cinema.
This order shall take effect at 12:00 noon on Monday, April 4, 2005. This
order does not limit the authority of the Commonwealth of Massachusetts, or
the
City of Worcester and its Police Department from taking any other actions to
enforce federal, state or local law in connection with the operation of the
Paris Cinema aforesaid.
This court retains jurisdiction over the case. Either party may apply to
the
court for additional relief if warranted by the circumstances, including a
modification of the order to increase or decrease oversight of conduct within
the premises known as the Paris Cinema.
A trial on a permanent injunction will be scheduled, if appropriate,
following the consolidated hearing and disposition of the motions to dismiss
scheduled for May 6, 2005.
_____________________________
Peter W. Agnes, Jr.
Justice of the Superior Court
DATE: April 1, 2005
April 1, 2005
Paris Cinema ruled public nuisance -
Hearing today on closing adult theater
Worcester Telegram & Gazette (MA)
Author: Milton J. Valencia
WORCESTER - A Superior Court judge declared the Paris Cinema a public
nuisance yesterday for allowing sex acts to occur inside its theaters, but
he continued a hearing on attempts to shut it down, leaving the adult
theater's future uncertain.
In a 21-page ruling issued yesterday, Superior Court Judge Peter W. Agnes
Jr. compared the cinema to a prostitution house because patrons could pay an
admission fee and expect to engage in sex acts inside. He also said the
theater creates a health concern because none of the men arrested for sex
acts were wearing condoms, raising concerns of the spread of diseases such
as AIDS.
The judge granted a request by District Attorney John J. Conte for a
preliminary injunction declaring the theater a nuisance and ordering it to
stop maintaining a nuisance.
However, the judge issued a stay of the order until a hearing can be held
today to determine what the injunction necessitates. Judge Agnes said during
a hearing Wednesday, before making his ruling, that being deemed a nuisance
does not necessitate the closing of the business, and other measures could
be taken to curtail the sex acts. He said in his ruling that today's hearing
could determine "precise terms" of the injunction "in order to minimize its
financial and other impacts on the defendants."
Mr. Conte said yesterday that his office initially called for the closing
of the cinema, but his objective has been to "prevent this type of thing
from happening," and he could accept other measures to halt the sex acts.
He said his office may recommend requiring the cinema to have a police
officer work at each of its two theaters, one located on the first floor and
the other on the second floor, at all times that the cinema is open. The
cinema is open from 10 a.m. to 10 p.m. on Mondays through Thursday, from 10
a.m. to midnight on Fridays and Saturdays, and from 1-10 p.m. on Sundays.
Burton Chandler, the cinema's lawyer, would not comment on any
recommendations he may have for an injunction, but he has said full-time
details in both theaters could be too costly.
The district attorney had sought the preliminary injunction as part of a
long-range plan to shut down the Paris Cinema for being a nuisance, after
the arrests of 22 men in multiple raids for allegedly committing sex acts.
Police officers testified Wednesday that they witnessed sex acts between men
and made 11 arrests during an initial raid Jan. 14. The next day, six others
were arrested and more men were arrested in follow-up raids.
Mr. Conte filed civil and criminal complaints alleging the theater
maintained a nuisance by allowing the sex acts to occur, even after the
initial arrests and after a police officer allegedly told a manager to
curtail the acts.
Mr. Chandler has filed motions to dismiss the cases, saying the state law
Mr. Conte invoked for the complaints is vague and overbroad and therefore
unconstitutional. A hearing has been scheduled for May 6, but the
preliminary injunction was sought by Mr. Conte's office as an immediate
relief to stop the sex acts until a full trial can be held.
In the hearing for the injunction, Mr. Chandler hinted at his arguments
to dismiss the cases, saying that, even if the state law is ruled
constitutional, there is no official definition of the word lewdness, and
that the cinema managers could not have known that the sex acts were
considered lewd and a nuisance.
He cited recent court cases that addressed the subject and noted that one
Supreme Judicial Court case defined lewdness as an act that causes shock or
alarm. Mr. Chandler used the police officers' testimony Wednesday to show
that none of the other patrons inside the cinema were shocked or alarmed by
the sex acts.
Judge Agnes, however, said in his ruling that though there has been no
official definition of lewdness, courts have ruled in the past that exposing
one's genitals could be considered lewd behavior.
The judge said that while some of the acts inside the theater could be
debated as to whether they are lewd, the "theater should have been aware
that oral sex and anal sex fell squarely within the definition of lewdness."
The judge noted that, according to testimony in Wednesday's hearing, the
theater does have a sign warning that lewd acts would not be tolerated but
still the acts occurred.
In his ruling, the judge also went beyond the arguments made by the
assistant district attorneys in the case, ruling the cinema could be
considered a prostitution house and a health concern, subjects never
mentioned by the prosecutors. Mr. Chandler said he was "aware" the judge
went beyond the prosecution argument, but he would not comment and would not
comment on any plans, if any, for an appeal.
The judge noted that the cinema managers had been aware following the
initial arrests that such acts occurred inside the theater. "Presumably, all
of the patrons knew this as well, which may explain why no one appeared to
be shocked or alarmed at what was taking place inside the theater," the
judge said. He went on to note that prostitution is defined as the payment
of a fee to another person in order to obtain sexual gratification from acts
performed by another person.
So, "the payment of a $10 fee by patrons of the Paris Cinema to the
theater in order to gain admission and to have sex with other patrons inside
the theater also constituted prostitution," as it is defined in state law,
the judge stated in his ruling.
City Manager Michael V. O'Brien praised the judge's decision yesterday,
and thanked the district attorney for bringing the case to Superior Court.
City officials have called the cinema a haven for illegal sex acts that
anchors other illegal activity in the area, including prostitution, in the
shadows of downtown and across the street from the Worcester Common.
Officials have said the cinema paints an ugly picture of downtown at a time
when they're pushing for revitalization in the area.
The police arrests were only part of a city attempt to address what was
called a multitude of problems with the cinema. The Department of Code
Enforcement also sent compliance orders telling the business to make repairs
to the structure or halt operations. Mr. Chandler has appealed those orders,
however, and a hearing has been scheduled for Thursday. Mr. O'Brien has said
the police and code actions all at once were an attempt to address what he
called the problems at the cinema on all fronts in an effort to have them
resolved quicker.
"This type of activity, whether downtown or anywhere in the city, will
not be tolerated," Mr. O'Brien said yesterday.
He said the case is now before the courts and Mr. Conte's office, so he
had no recommendations for the injunction as long as "justice is served." He
said the Police Department would work to supply police details, at the
business's expense, as it would to help any other business comply with law.
"If it's the finding of the judge that this would stop illegal activity
... then that's what the details are for," Mr. O'Brien said. "Our
involvement in this was strictly due to illegal activity that won't be
tolerated."
March 31, 2005
The surrender of the Paris
Wormag By
Noah Schaffer
They say this developer will take the whole block and
wipe out the notorious porn theater
Irv Cohen is a guy who made his reputation developing
brownfields -- land made dirty by industry or waste -- mostly in New Jersey.
Now he seems to be turning his attention to a dirty
movie theater: downtown Worcester's Paris Cinema. Cohen's name arose this
week as several well-placed sources confirmed he's putting together a number
of properties to create a large downtown parcel ripe for development. Among
the buildings he's reportedly working to purchase are the adult movie house
at 68 Franklin St., as well as the Bancroft Motors lot around the corner.
The idea is to own the whole block, sources say. At press time, numerous
calls to Cohen's office, as well as to the Florida home of Robert Hurwitz,
the owner of the building that houses the Paris, had not been returned.
Attorney Burton Chandler, who represents the theater operator -- but not
Hurwitz -- declines to comment. However, in the past he has been quoted in
the Telegram & Gazette as saying his client's lease is valid no
matter who owns the building.
Cohen may already have signed a purchase and sale
agreement on one or more of the properties in question. (Just this month,
Hurwitz sold a different holding, a condo on Lake Avenue.)
Cohen isn't the first developer to express interest in
the block. Since the summer, Northboro attorney Christopher Senie has been
trying to put together a deal to create luxury condos out of the buildings.
The Brooklyn-born Cohen is credited with 30 years of
experience in real estate development, according to a biography on the Web
site of his company, GreenEagle LLC. Before starting GreenEagle, Cohen was
president and CEO of OENJ Cherokee, which undertook several successful
brownfield projects in New Jersey. He remains involved in an affiliated
fund, Cherokee Investment Partners II, which facilitates the financing of
brownfield developments in a way that protects owners from the legal
liabilities of selling environmentally damaged land. The fund's Web site
claims it manages some $1 billion in assets. Cohen is also the managing
partner in the redevelopment of a Niagara Falls superfund site. Prior to
joining Cherokee in 1997, Cohen had been a senior executive with several New
York banking firms. He sits on the Business Council of the U.S. Conference
of Mayors.
In 1999, The New York Times ran a lengthy
profile of the work Cohen and Cherokee were doing in New Jersey. The story
described an industrial waste site in Bayonne, N.J., which was being turned
into a golf course. In April 2002, the same newspaper noted that the project
had been slowed by delays on permits to dredge the garbage already on the
site.
Although it has received most of its press for
projects in the tri-state area, GreenEagle was mentioned as a possible
player in the cleanup and redevelopment of a Nashua brownfield, the Mohawk
Tannery. Last month, a different developer was chosen to clean the site and
build housing on it, according to an account in the Nashua Telegraph.
GreenEagle was brought to the site by the Massachusetts firm of Metcalf &
Eddy, according to transcripts of a city committee. Metcalf & Eddy have
recently been responsible for environmental testing on sites in Hopedale and
Brookfield.
Brownfield development has been a priority for
Worcester Mayor Timothy Murray. Among such sites are the Greenwood Street
landfill. (Currently, according to a city official, Massachusetts
Environmental Associates, the city's official designee for re-opening a
portion of the dump, is in the final stages of the process required by the
state Department of Environmental Protection before it can proceed with the
first phase; its trucks should be bringing new fill to the site shortly.)
In recent months, the Paris has been the subject of a
crackdown by Worcester police, as well as health and code officials.
Numerous patrons have been arrested for sex acts or indecent exposure inside
the theater since January. The theater is still open while several court
cases are in progress. It's no secret that many downtown supporters feel the
theater casts a shadow over such efforts to rejuvenate downtown as developer
Young Park's ambitious plan to remake the Worcester Common Outlets into the
project CitySquare. Whether Park will welcome Cohen's efforts or perceive
them as competition is yet to be seen.
If Cohen is going to use the same approach as Senie
and seek to build condos, he'll also have to figure out how many housing
units downtown Worcester can support while CitySquare is being built. One
thing Cohen probably won't build is a replication of a project he did at the
site of an old municipal dump in Elizabeth, N.J. -- an outlet mall.
Noah Schaffer may be reached at nschaffer@worcestermag.com.
COMMONWEALTH OF MASSACHUSETTS Plaintiff v. CAN-PORT
AMUSEMENT CINEMA and ROBERT HURWITZ, Defendants
|
DOCKET |
2005-0295 |
|
Dates: |
March 31, 2005 (revised) |
|
County |
WORCESTER,SS |
|
KEYWORDS |
MEMORANDUM OF DECISION AND ORDER ON COMMONWEALTH’S MOTION FOR A
PRELIMINARY INJUNCTION |
INTRODUCTION
This is a civil action in which the Commonwealth of Massachusetts seeks a
preliminary injunction to restrain the maintenance of a nuisance by the
defendants and to enjoin them from removing fixtures from the property until
further order of the court See G.L. c. 139, § 8. In addition to this civil
proceeding, the Commonwealth also has sought and obtained an indictment
against
the corporate defendant for keeping or maintaining a building used for
lewdness
in violation of G.L. c. 139, § 5 (exhibit 5).(1)
FACTUAL BACKGROUND
“By definition, a preliminary injunction must be granted or denied
after an abbreviated presentation of the facts and the law.”
Packaging
Industries Group. Inc. v. Cheney, 380 Mass. 606, 619 (1980). (2) The
court
conducted an evidentiary hearing in this matter on March 30, 2005. Based on
the
credible testimony and exhibits, I make the following findings of fact. The
defendant Robert Hurwitz(3) owns the real property located at 68 Franklin
Street in the City of Worcester (see exhibits 5 & 6), and the defendant
Can-Port Amusement Corporation operates a licensed(4) movie house at that
location known as the Paris Cinema. (Defendants hereafter referred to as
“theater” or “Paris Cinema”)). See exhibits 1, 2, and 3.
The court heard testimony from six Worcester Police officers each of whom
had
many years of experience as police officer and each of whom described in
detail
the observations they made on various occasions while inside the Paris
Cinema.
On six occasions during the months of January, February, and March, 2005,
during both daytime and evening hours, officers of the Worcester Police
Department, acting on the basis of unspecified complaints about illegal
activity occurring in the theater, paid a $10.00 admission charge to enter
the
theater, walked to the upper and lower theaters where films were showing,
and
made observations of men engaging in various sexual acts including men
masturbating themselves while sitting in their seats, men standing and
masturbating themselves and other men, men engaging in oral sex with other
men,
and men engaging in anal sex with other men. The police observations
included
witnessing men with their penises exposed as they sat or stood while the
movie
was being screened, and men dropping their trousers and engaging in
masturbatory behavior or oral sex while the movie was being screened.(5)
The conduct in question took place in plain view of the police officers
and
others who were inside the theater. In some instances, patrons walked over
to
the men who were engaging in sexual activity and appeared to make close-up
observations of the sexual activity for a few moments before walking away.
The police visits to the theater lasted on most occasions for only 10-15
minutes. The conduct observed by the police took place while adult films
were
showing depicting men and women engaging in various sexual acts. The conduct
did not appear to cause any shock or alarm on the part of any of the persons
who were inside the theater at the time that the police made their
observations. None of the men arrested or observed by the police to be
engaging
in oral sex or anal sex were using condoms, and no condoms were observed
inside
the areas of the theater where the films are shown. Condoms are available to
persons who enter the theater. There is some sort of sign in the lobby
forbidding patrons from engaging in sexual acts inside the theater, but it
was
not displayed in a prominent location, and was not observed by all of the
officers who were in that area.
The officers who made the observations were dressed in plain clothes and
did
not make arrests at first. However, on January 14, 2005 the police made
eleven
arrests inside the theater and charged the men who were involved with
criminal
violations including unnatural acts and open and gross lewdness (G.L. c.
272,
§ 16). Six arrests were made the following day. Fewer arrests have been
made during the most recent investigative operations that have been mounted
by
the police. In each case where an arrest was made, the subject was
handcuffed
inside the theater after the lights were turned on and brought outside in
custody through the lobby in full view of the staff of the theater. The
parties
have stipulated that as a result of the police activities described above
and
the publicity that has followed in the local press, the owners and operators
of
the theater were on notice as early as January, 2005 that sexual activity
was
taking place inside the theater among and between patrons.
DISCUSSION I
In deciding whether to grant a preliminary injunction, the court is
required
to perform a multi-part analysis. Packaging Industries Group. Inc. v.
Cheney, 380 Mass. 606, 616-17 (1980). Generally, the court must
determine
whether the moving party has demonstrated a likelihood of success on the
merits, and that it faces a substantial risk of irreparable harm–losses
that cannot be repaired or for which compensation will not be adequate after
final judgment–if the motion for the preliminary injunction is not
granted.
Id. at 617 & n. 11. If the moving party has met this
burden, the court must then engage in a balancing test in which the
irreparable
harm faced by the moving party is compared to the harm that an injunction
would
inflict on the other party. “If the judge is convinced that failure to
issue the injunction would subject the moving party to a substantial risk of
irreparable harm, the judge must then balance this risk against any similar
risk of irreparable harm which granting the injunction would create for the
opposing party.”
Id. at 617. In balancing these factors,
“[w]hat matters as to each party is not the raw amount of irreparable harm
the party might conceivably suffer, but rather the risk of such harm in
light
of the party’s chance of success on the merits. Only where the balance
between these risks cuts in favor of the moving party may a preliminary
injunction properly issue.”
Id. Furthermore, in an appropriate
case, “the risk of harm to the public interest also may be
considered.”
Brookline v. Goldstein, 388 Mass. 443, 447 (1983).
See also LeClair v. Town of Norwell, 430 Mass. 328, 337 (1999);
Commonwealth v. Mass. CRINC, 392 Mass. 79, 89 (1984).
In a case such as this, the moving party need not show irreparable harm
when
they are "the government or a citizen, acting as a private attorney
general to enforce a statute or a declared policy of the Legislature."
LeClair, supra, 430 Mass. at 331-332 (1999). In such circumstances, a
court must first consider whether the plaintiffs are likely to prevail on
the
merits, and then determine whether injunctive relief will benefit or harm
the
public interest. Id., citing Mass. CRINC, supra, 392 Mass. 79, 89
(1984). Hence, the public interest is a factor in this Court's determination
in
whether to grant either preliminary or permanent injunctive relief. Id.
The moving party bears the burden of showing a likelihood of success.
John
T. Callahan & Sons, Inc. v. City of Malden, 430 Mass. 124 (1999).
II A. Success on the Merits
G.L. c. 139, § 4 provides in part that “[e]very building, part of
a building, tenement or place used for prostitution, assignation or
lewdness,
and every place within or upon which acts of prostitution, assignation or
lewdness are held or occur, shall be deemed a nuisance.” Under G.L. c.
139, § 6, the district attorney is authorized to bring a civil action in
the name of the Commonwealth against the person or persons “conducting or
maintaining” such a nuisance as well as against the owner of the building
or place where the nuisance exists to enjoin them from “directly or
indirectly maintaining or permitting such nuisance.” Here, the
Commonwealth maintains the defendants are keeping or maintaining a nuisance
at
the Paris Cinema located at 68 Franklin Street in Worcester because they are
permitting it to be used by persons who are engaging in acts of
“lewdness” as that term is used in G.L. c. 139, § 4. Based on
the evidence presented at the hearing held on March 30, 2005 and the fair
inferences to be drawn from the evidence, I find that the defendants are
aware
that patrons of the Paris Cinema regularly engage in sexual acts inside the
theater in open view of other patrons and visitors, and that these acts
consist
of unprotected oral sex performed by men on other men and unprotected anal
sex
by men with other men.
(1) Void for Vagueness Claim
The principal argument advanced by the defendant theater is that G.L. c.
139, § 4 is unconstitutional. The constitutionality of the statute was
first considered in
Chase v. Proprietors of Revere House, 232 Mass.
88
(1919). The backdrop of the case was the concern about prostitution in the
hotels and cafes of the City of Boston owing to the large number of soldiers
and sailors who were on leave in the city at the time. In
Chase, the
Supreme Judicial Court observed that courts of equity had long enjoyed the
power to suppress a public or private nuisance even in circumstances in
which
the conduct complained about involved indictable offenses. Chase, supra,
232 Mass. at 94.
In particular, the court noted that the power of the Legislature was not
limited to addressing problems associated with the uses of real or personal
property that are inherently dangerous.
Id. at 96. The court
concluded
that the statute was constitutional as a valid exercise of the police power,
and upheld the rulings of the lower court that evidence of prostitution on
the
premises of the hotel was sufficient to warrant its designation as a
nuisance
and the issuance of an injunction to abate it. The Supreme Judicial Court
again
considered the constitutionality of the statute in Commonwealth v. United
Food Corp, 374 Mass. 765, 778-79 (1978), and noted that “we adhere to
our previous views, consistent with the great weight of authority in this
country, that an injunction against the future maintenance of a public
nuisance
may properly be entered without the involvement of a jury. We further
believe
that the Legislature may provide that particular uses of property constitute
public or common nuisances and may make that conduct subject to injunction
without any proof that, in the particular case, the conduct caused actual
harm
to public or private interests.”
In United Food Corp., supra, the Court, however, did
conclude
that certain features of the statutory scheme which require a court, in the
exercise of its equitable powers, to not only abate the nuisance but to
order
that the premises in question must be closed for a year and all personal
property seized and sold were unconstitutional in violation of Article 12 of
the Massachusetts Declaration of Rights.
Id. at 781. “In order to
avoid the unconstitutional aspects of the statute, and to achieve the basic
legislative purpose, we conclude that the judge must have discretion to
fashion
the judgment in this case and we remand the case for that purpose.”
Id.
The defendant theater advances several arguments in support of its claim
that G.L. c. 139, § 4 is unconstitutional. The defendant first maintains
that the statute is impermissibly vague because it contains no definition of
“lewdness.” It is a basic tenet of Due Process that if people have to
guess at the meaning of a statutory or regulatory standard it is invalid and
cannot be the basis of either a criminal prosecution or an equitable
restraint.
See Saxon Coffee Shop, Inc. V. Boston Licensing Board, 380 Mass. 919,
925 (1980), citing
Druzik v. Board of Health of Haverhill, 324 Mass.
129, 134 (1949) (regulation void because it "prohibits nothing
specific," "contains no standards," and "could lead to
arbitrary and discriminatory action"). See also Commonwealth v.
Williams, 395 Mass. 302, 303-04 (1985).
The question, therefore, is whether the owner and operators of the Paris
Cinema, a licensed movie theater open to the public, are left to guess or
wonder whether oral and anal sexual intercourse between male patrons inside
their theater while films are being shown and in plain view of other patrons
is
“lewdness” as that term is used in G.L. c. 139, § 4. Although
the term “lewdness” is not defined in G.L. c. 139, the concept has
long been part of our jurisprudence and has received judicial constructions
over the years in several contexts. The term “lewd” is in current use
in connection with the misdemeanor criminal offenses punishable under G.L.
c.
272, § 53 including the crime of indecent exposure, see Commonwealth v.
Broadland, 315 Mass. 20, 21-22 (1943), quoting Commonwealth v.
Cummings, 273 Mass. 229, 231 (1930)(Explaining that this crime requires
"an intentional act of lewd exposure, offensive to one or more
persons."), and the crime of “lewd, lascivious and wanton
behavior,” see
Commonwealth v. Nebel, 59 Mass. App. Ct. 316
(2003)(Explaining that this offense requires the Commonwealth to prove four
things beyond a reasonable doubt: First, that the defendant (committed)
(publicly solicited another person to commit) a sexual act; Second, that the
sexual act involved touching the genitals or buttocks, or the female
breasts;
Third, that the defendant did this either for the purpose of sexual arousal
or
gratification, or for the purpose of offending other people; and Fourth,
that
the sexual act (was) (was to be) committed in a public place; that is, a
place
where the defendant either intended public exposure, or recklessly
disregarded
a substantial risk of public exposure at that time and under those
circumstances, to others who might be offended by such conduct."). The
concept is also in current use in connection with the felony criminal
offense
of open and gross lewdness punishable under G.L. c. 272, § 16. See
Commonwealth v. Adams, 389 Mass. 265, 271 (1983) (conviction based on
conduct consisting of masturbating in automobile); Commonwealth v.
Gray, 40 Mass. App. Ct. 901, 901 (1996)(rescript)(conduct consisted of
oral
sex). If the acts described in the above cases viz., exposure of or
touching of one’s genitals, masturbation, and oral sex, were regarded as
conduct that met the definition of lewdness for purpose of criminal
prosecutions under G.L. c. 272, § 16 and G.L. c. 272, § 53 then it
must have been clear to the defendants in the present case that when patrons
enter the theater and during the screening of films perform oral sex on each
other and engage in anal intercourse in front of the other patrons they are
keeping or maintaining premises where acts of lewdness are taking place.
The defendant theater seeks refuge from this result in the recent decision
of the Supreme Judicial Court in
Commonwealth v. Quinn, 439 Mass. 492
(2003). In Quinn, Chief Justice Marshall, writing for a unanimous
court,
answered several questions reported by a trial judge about the construction
of
G.L. c. 272, § 16 (open and gross lewdness) and its relationship to G.L.
c. 272, § 53 (indecent exposure) insofar as they might apply to the
conduct of a person who pulled down his pants revealing his buttocks along
with
red “thong” underwear in front of several young girls standing
outside of a school. The Court explained that in order to convict a person
of
the felony offense of open and gross lewdness, the Commonwealth must prove
that
the defendant’s conduct actually caused alarm or shock whereas there is no
such requirement for conviction of the misdemeanor offense of indecent
exposure.
Id. at 496- 97. The actual holding in the case is that a
person may be prosecuted and convicted of the felony offense of open and
gross
lewdness on the basis of simply exposing his or her buttocks as a result of
wearing a “thong” as long as the other essential elements were
proved.
Id. at 499. The court added, however, that this construction
of
the scope of G.L. c. 272, § 16 was one not previously established in the
cases which had dealt principally with conduct involving the intentional
exposure of one’s genitals and sexual conduct such as masturbation, and
that the defendant thus may not have had fair notice of the applicability of
the statute to the conduct he was charged with committing. As a result, the
court concluded that based on considerations of Due Process the defendant
could
not be prosecuted for a violation of G.L. c. 272, § 16. Id. at
500-01.
In the course of explaining this result in the Quinn case, Chief Justice
Marshall makes the following observation:
“The language of G.L. c. 272, § 16, "open and gross lewdness
and lascivious behavior," neither mentions exposure of the buttocks nor,
without further judicial construction, informs a person precisely which
private
body parts may not be exposed. In ordinary usage, "lewdness" or
"lascivious behavior" convey no more specific meaning than the terms
"lewd" and "wanton," which we have said failed to reference
sufficiently definite conduct, and applied only "broadly to conduct which
the speaker considers beyond the bounds of propriety." Commonwealth v.
Sefranka, supra at 111, 414 N.E.2d 602, quoting Pryor v. Municipal Court for
the Los Angeles Judicial Dist. 25 Cal.3d 238, 246-247, 158 Cal.Rptr. 330,
599
P.2d 636 (1979).
As to judicial construction, our decisions have made clear that the
exposure
of genitalia may be prohibited by G.L. c. 272, § 16. See, e.g.,
Commonwealth v. Fitta, supra at 395-396, 461 N.E.2d 820 (exposing penis to
two
ten year old boys); Commonwealth v. Adams, 389 Mass. 265, 271, 450 N.E.2d
149
(1983) (driving slowly down public way with penis exposed and masturbating).
Our decisions have not otherwise provided sufficiently "clear and definite
content" of the range of other conduct that is prohibited. Commonwealth v.
Sefranka, supra at 115, 414 N.E.2d 602. See Commonwealth v. Arthur, 420
Mass.
535, 541, 650 N.E.2d 787 (1995) (noting that cases under G.L. c. 272, §
16, to that date "invariably have involved exposure of the
genitalia"). (FN14) And while some decisions have indicated that exposure
of "buttocks" is encompassed within the zone of conduct prohibited by
statutes outlawing "lewd" or "lascivious" behavior, those
decisions did not interpret G.L. c. 272, § 16, and could not have provided
notice to the defendant that his behavior would violate that statute. See,
Victimless
crimes, top DA John Conte's agenda.