Revere ordered to pay costs in adult store case

REVERE -- Located in a small brick building near several auto body shops, the Moonlite Reader adult video store on Route 16 is hardly conspicuous, with its modest black-and-yellow sign displaying a smiling crescent moon.

For more than a decade, the city tried to shut down the business, culminating in a 2002 ruling by a Suffolk Superior Court judge that a zoning ordinance prohibiting the store violated the owners' free speech rights. Now, the judge has ordered the city to pay attorneys' fees and court costs incurred by the store, more than $915,000. In a blistering 13-page ruling, Judge Ernest B. Murphy rejected the city's argument that lawyers for the video store were trying to gouge the government. He blamed the city for designing a "patently illegal" ordinance to torpedo the business and said that "Revere's obstructionist conduct" had prolonged the court battle.

Ted Drabkowski, co-owner of T & D Video Inc., which operates Moonlite Reader, was pleased with the ruling, saying that the city has tried to "drive the legal costs up so high that we have no recourse but to fold our tent."

But Ira Zaleznik, a private lawyer who represents the city, said the judge erred when he ruled that the ordinance was unconstitutional and again when he ordered Revere to pay the store's legal fees.

"He's been consistently wrong throughout," said Zaleznik, who called the award "outrageous."

Mayor Thomas G. Ambrosino, who last month described the city's finances as precarious, vowed yesterday to continue the fight by appealing the award as excessive.

Awards of attorney's fees in cases dealing with the First Amendment tend to be higher than those in other civil lawsuits because constitutional rights are at stake, said David Yas, editor of Massachusetts Lawyers Weekly. But the Feb. 9 award is striking, considering that Massachusetts juries awarded damages exceeding $1 million only 13 times in civil lawsuits last year.

Revere's dispute with T & D Video, which Zaleznik said is the city's only adult video store, began in fall 1993, when the owners applied for a business certificate as they began remodeling their rented quarters. The city asked the owners, who operate six stores in Massachusetts and New Hampshire, to sign an affidavit that said they would not sell adult videos or merchandise. The owners refused, but the city granted the certificate anyway.

Within two months, however, Revere approved a zoning ordinance that confined adult video stores to the industrial zone and then effectively banned them there by imposing restrictions dealing with lot sizes and proximity to parks, schools, playgrounds, and houses, according H. Glenn Alberich, the lawyer for T & D Video.

But Drabkowski and his partner, Del Paone, were unaware of the new ordinance and applied for a permit to put up a sign outside the store as they prepared to open in late 1994, Alberich said. The building inspector denied the request and said the store violated the zoning ordinance. The Zoning Board of Appeals agreed.

The owners then sued the city, saying the ordinance violated their First Amendment rights. Superior Court Judge Margot G. Botsford issued a preliminary injunction barring the city from applying the ordinance, and the store opened in December 1994. It has remained open since then.

After the Supreme Judicial Court upheld Botsford's ruling in 1996, Alberich said, he figured the city would drop its objections. But it didn't, and the case went to trial six years later. In October 2002, Murphy ruled that the ordinance represented unconstitutional prior restraint on free speech, Alberich said.

Under provisions of civil rights law, the video store asked the court to force Revere to pay its legal fees and expenses, which Alberich estimated at more than $1.2 million.

The city countered that if it had to pay anything, it should be no more than $50,000.

Last week, the judge told the city to pay $915,027, saying that Revere "unduly prolonged this litigation" and designed the ordinance "for the sole purpose of `zoning out' T & D Video's" business.

Ambrosino, who became mayor in 2000, said he has nothing against the business, just its location. The video store is near a Comfort Inn, he said, and some students walking to Revere High School pass the building.

Zaleznik insisted Friday that the US Supreme Court has upheld zoning ordinances similar to Revere's. He added that since the dispute began, the ability to buy or rent pornography on the Internet has undercut the constitutional obligation to allow adult video stores into communities.

But T & D Video, pointing out that the interest rate on the legal fees is 12 percent a year, said the city should simply pay up. "The meter's running," Drabkowski said.