The state Appeals Court this week dismissed a case brought against Milford by the owner of who wants to feature strippers and other forms of adult entertainment.
In the two-page order, the appeals court found the bar did not have a "grandfathered" right to feature exotic dancers under a 1996 town bylaw on adult entertainment.
The Milford Zoning Board of Appeals rejected the bar's application for a special permit in February 2008. In rejecting the application, the zoning board determined that the club should not be allowed to include adult entertainment because the site is within 400 feet of a residential area — one that contains Sacred Heart Cemetery.
Courts have found that adult entertainment is constitutionally protected as expression. As a result, towns have adopted bylaws that regulate it, rather than prohibit it altogether. Milford first approved an adult entertainment bylaw in 1996. In 2008, the bylaw was updated. Both versions prevent adult entertainment facilities from locating on the same block, or within 400 feet, of schools, residential areas, churches, parks, playgrounds, and youth centers.
In a November 2011 decision, Worcester Superior Court Judge Dennis Curran rejected an assertion by Doc's that that the town's 2008 bylaw was unconstitutional, finding the town had acted appropriately. "[The bylaw] is narrowly tailored to serve Milford's substantial government interests because it targets only adult uses, and merely limits the location, rather than other aspects of their businesses," he wrote.
Kevin Coady, owner of Doc's, appealed the decision a year ago.
In its decision Tuesday, the Appeals Court found that the 2006 bylaw was not more permissive, and did not give the bar grandfathered status for adult entertainment. "Regadless of whether it was lawful, adult entertainment had not commenced at the plaintiff's locus and was never an existing use on which the plaintiffs [Doc's] could rely at any relevant time."
The decision threw out, or vacated, the judgment of the Worcester Superior Court judge, and dismissed the case as "moot."
Kenneth Tatarian, an attorney representing Coady, said his client plans to appeal the decision through an application for "further appellate review" to the state's Supreme Judicial Court.
The basis for the appeal would be to have the state's supreme court decide whether the case is moot, or valid.