Opinion
14-P-1417
05-13-2015
ROLLER WORLD, INC. v. TOWN OF SAUGUS & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Roller World, Inc. (Roller World), sued the defendants in 2004 after its application for a permit to hold late-night dance parties under a new town by-law was denied by the board of selectmen (board). In this appeal, the plaintiff argues that the judge improperly granted summary judgment to the defendants. We affirm.
Background. Roller World operates a roller skating and ballroom dancing business in Saugus. In April, 2000, the plaintiff applied for a license to hold late-night dance parties, which was ultimately issued due to a Superior Court order. Subsequently, in October, 2003, the town amended its by-law to require the board to consider public safety, noise, and traffic when reviewing applications for businesses seeking to operate from 2:00 A.M. to 6:00 A.M. The plaintiff applied for a renewal of its license under the new by-law. The board denied the application, and on April 21, 2004, the plaintiff sued again and argued, among other things, that the town had unjustifiably treated it differently from other businesses. Roller World sought declaratory judgment and monetary damages. In an order dated August 27, 2013, the judge granted the defendants' motion for summary judgment, and a judgment entered the following day. This appeal followed.
The amended by-law, which the Attorney General approved, applied to any "person, corporation, or business entity who has been issued an alcoholic beverage license, common victualer license, entertainment license, food service permit, or any retail business."
Roller World has not applied again since the board rejected its application in 2004.
Discussion. The plaintiff argues that the judge improperly granted summary judgment, as a genuine issue of material fact existed as to whether the board treated the plaintiff differently from similarly situated businesses. We disagree.
Roller World's complaint included seven counts, only one of which claimed an equal protection violation. The court granted summary judgment for the defendants on all counts. In this appeal, Roller World addresses only the equal protection claim. As such, we do not review the judge's rationale as to the remaining counts. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) ("The appellate court need not pass upon questions or issues not argued in the brief").
Summary judgment is proper if all material facts have been established, and viewing the facts in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. Commissioners of the Bristol County Mosquito Control Dist. v. State Reclamation & Mosquito Control Bd., 466 Mass. 523, 528 (2013). Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). To establish an equal protection claim, a plaintiff must show first that "he was treated differently than other similarly situated supplicants," and second, that "the differential treatment resulted from a gross abuse of power, invidious discrimination, or some other fundamental procedural unfairness." Mancuso v. Massachusetts Interscholastic Athletic Assn., 453 Mass. 116, 129 (2009), quoting from Pagan v. Calderon, 448 F.3d 16, 34 (1st Cir. 2006). An appellate court reviews a grant of summary judgment de novo. See Fortenbacher v. Commonwealth, 72 Mass. App. Ct. 82, 85 (2008).
Here, the plaintiff put forth no facts that would have allowed a jury to find that the board treated it differently from similarly situated businesses. First, the plaintiff failed to show that other businesses received permits under the new by-law to hold all-night dance parties. The board granted late-night permits to certain businesses, including CVS and Dunkin' Donuts, because they met the by-law's requirements; they serve a public good during the late hours and do not disturb public safety or tranquility by attracting a large number of people. The plaintiff failed to place evidence before the motion judge that such businesses were "similarly situated" to Roller World, as those other businesses were not entertainment establishments and did not seek to hold all-night parties that would bring a large influx of patrons and pose unique security concerns for the town.
Gerald Breen, Roller World's owner, testified at a deposition on January 22, 2010, and failed to identify any similarly situated business that received permits for late-night dancing. When discussing the new by-law, he was asked, "And are you aware of any entertainment facilities or halls that are open after midnight in Saugus?" He replied that "[t]here probably are," and "I'm not familiar with names of people, no."
Even if Roller World were considered "similarly situated" to businesses that obtained permits under the new by-law, the plaintiff would fare no better because it has failed to show that the board denied the permit because of a "gross abuse of power, invidious discrimination, or some other fundamental procedural unfairness." Mancuso v. Massachusetts Interscholastic Athletic Assn., 453 Mass. at 129, quoting from Pagan v. Calderon, 448 F.3d at 34. In a March 17, 2004, letter to Roller World, the board stated multiple reasons for denying the permit, including a lack of police resources during the late-night hours, increased noise by patrons, traffic, and that the dance parties were not a necessary public service. The plaintiff has failed to set forth specific facts that show the board's stated reasons were an abuse of power or invidious discrimination. The plaintiff has also failed to show any procedural unfairness; the board allowed the plaintiff to present its case at a hearing. The judge's grant of summary judgment for the defendants was proper. See Commissioners of the Bristol County Mosquito Control Dist. v. State Reclamation & Mosquito Control Bd., 466 Mass. at 528.
For these reasons, and for substantially those in the brief of the defendants, we affirm.
Judgment affirmed.
By the Court (Kantrowitz, Kafker & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 13, 2015.