City: $2M strip club lawsuit is 'frivolous'

City lawyers are calling a lawsuit contending the city unconstitutionally and systemically banned strip clubs “frivolous" and without basis.

The city is seeking legal and related fees and dismissal of the case filed by Gary Lund of Swansea.

The six-count suit is slated for hearings in U.S. District Court, Boston.

“The defendant states that the plaintiff has failed to take reasonable steps to mitigate his damages,” city Corporation Counsel Steven Torres wrote in a defense conclusion filed last week.

The suit names the city, Zoning Board of Appeals members and Director of Planning James Hartnett as defendants.

Two weeks ago, Torres filed a response to Lund's request for a preliminary injunction to nullify the city's zoning ordinances controlling his strip club application.

A hearing date has not been set, he said.

The latest city filing is an item-by-item response to the $2 million suit that attorney Brian Cunha filed Feb. 9 on behalf of Lund. The suit cites a 13-year “ongoing battle,” alleging the city deliberately banned adult entertainment through its laws and actions.

For example, it said, “On Nov. 4, 2002, the Superior Court issued its decision that Fall River's adult entertainment zoning ordinances violated the United States and Massachusetts constitutions in failing ‘to provide for a reasonable opportunity to open and operate an adult business in the city.'”

As a result, in 2003, the city abolished a section of its zoning laws prohibiting strip clubs within close proximity of schools, parks and churches.

As further examples of the dispute, the suit alleges that the city “admitted” that on Feb. 15, 2005, Superior Court Judge Robert Kane found a section of the zoning ordinance constituted a restraint on a different plaintiff's rights under the Constitution's First Amendment.

In the paragraph adjacent to that one, the suit says, “The motive for revising the above ordinance was to ban adult entertainment via use of zoning laws.”

In one of its eight defense affirmations, Torres wrote that the “defendants have no knowledge that said alleged acts were illegal and/or unconstitutional, nor were said acts clearly violative of plaintiffs' rights at the time they were committed.”

Torres addressed the suit as Cunha contends it relates to the long legal battle the city had with Paul Viveros, owner of Oliver's in the Fall River Industrial Park. Those actions resulted in many court appearances and the city paying more than $350,000 for his legal fees.

“The history is only relevant to the fact zoning provisions have not been struck down in the last two court decisions,” Torres said.

Torres said he believes the only relevant zoning laws impacting Cunha's suit are two existing sections (86-88 and 86-201) regulating the zoning requirements and special permit, along with his two January appearances before the Licensing Board and ZBA.

The Licensing Board issued a permit, while the ZBA denied the several setback variances and the special permit.

Cunha also contends in the suit that sections 86-88 and 86-201 “are unconstitutional in that, in combination, they deny the plaintiff reasonable opportunity and accommodation to open and operate, within the city, an adult entertainment club.”
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