Maages Auditorium et al v. Prince George's County, Maryland, No. 8:2013cv01722 - Document 36 (D. Md. 2014)

Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 3/5/13. (sat, Chambers)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : MAAGES AUDITORIUM, et al. : v. : Civil Action No. DKC 13-1722 : PRINCE GEORGE S COUNTY, MARYLAND : MEMORANDUM OPINION Presently pending and ready for review in this case raising a constitutional challenge to Prince George s County zoning ordinances restricting adult entertainment businesses is the motion for a preliminary injunction filed by Plaintiffs Maages Auditorium; CD15CL2001, Inc., d/b/a Bazz and Crue and X4B Lounge; D2; and John Doe and Jane Doe, for all those similarly situated (ECF alternative, No. for 10), and summary a motion judgment to filed George s County (ECF No. 22) ( County ). dismiss by or, Defendant in Prince The issues have been fully briefed and a hearing was held on September 13, 2013. the following reasons, the motion for the preliminary For injunction will be denied and the motion to dismiss or, in the alternative, for summary judgment, will be granted in part and denied in part. I. Background Plaintiffs businesses are: located representative (1) in patron a group the County; the of clubs; of adult (2) and entertainment John (3) Doe, Jane Doe, a a representative performer at the clubs. Plaintiffs presently challenge two County laws: CB-46-2010 and CB-56-2011 ( zoning ordinances ). County Council on September 7, CB-46 was adopted by the 2010. It defined adult entertainment as [A]ny exhibition, performance or dance of any type conducted in a premise where such exhibition, performance or dance involves a person who: (A) Is unclothed or in such attire, costume or clothing as to expose to view any portion of the breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals; or (B) Touches, caresses or fondles the breasts, buttocks, anus, genitals or pubic region of another person, or permits the touching, caressing or fondling of his/her own breasts, buttocks, anus, genitals or pubic region by another person, with the intent to sexually arouse or excite another person. Prince George s Cnty. Code § 27-107.01 (ECF No. 1, Ex. A, at 2). The law further banned adult entertainment businesses from being located anywhere in the County but Zone I-2, an industrial zone. §§ 27-461, 473 (ECF 2 No. 1, Ex. A, at 8-11). Additionally, adult entertainment businesses could only operate between 5:00 PM and 3:00 AM, must be located at least one thousand (1,000) feet from any school, or any other building or use providing adult-oriented performances, and at least one thousand (1,000) feet from any residential zone or land used for residential purposes in any zone. providing adult-oriented § 475-06.06. performances Establishments lawfully established, operating and having a validly issued use and occupancy permit at the time of CB-46 s enactment had until May 1, 2013 to conform to the new use and location requirements. (Id. at Ex. A, at 13). CB-56 was adopted by the County Council on November 15, 2011. It amended the definition of adult entertainment to add the following to the end of Section 27-107.01(A): with the intent to sexually arouse or excite another person. Ex. B, pg. 2). in the I-2 (Id. at Adult entertainment remained permitted solely zone, but CB-56 permitted adult entertainment businesses currently existing and operating with a valid use and occupancy permit in zones C-S-C and C-M (commercial zones), and I-1 and U-L-I nonconforming (industrial) provided they to continue obtain a to Special operate as Exception. Applications for such an exception were due by June 1, 2012. (Id. at Ex. B, at 5-7). deadline to conform. CB-56 eliminated the May 1, 2013 (Id. at 3 Ex. B, at 8). Based on Plaintiffs business locations, they were each rendered nonconforming by CB-56 and must obtain a Special Exception to remain in their present locations. (Id. ¶ 37). Section 27-317 of the County Code provides that a Special Exception may be approved if: (1) The proposed use and site plan are in harmony with the purpose of this Subtitle; (2) The proposed use is in conformance with all the applicable requirements and regulations of this Subtitle; (3) The proposed use will not substantially impair the integrity of any validly approved Master Plan or Functional Master Plan, or, in the absence of a Master Plan or Functional Master Plan, the General Plan; (4) The proposed use will not adversely affect the health, safety, or welfare of residents or workers in the area; (5) The proposed use will not be detrimental to the use or development of adjacent properties or the general neighborhood; and (6) The proposed site plan conformance with an approved Conservation Plan; and is in Type2Tree (7) The proposed site plan demonstrates the preservation and/or restoration of the regulated environmental features in a natural state to the fullest extent possible in accordance with the requirement of Subtitle 24-130(b)(5). Plaintiffs applied for a Special Exception, but stated in their applications that they raised no federal issues, and reserved 4 all rights to litigate any federal claims in federal court pursuant to England v. Louisiana Board of Medical Examiners, 375 U.S. 411 (1964). (ECF No. 1 ¶ 39). Plaintiff D2 s application for a Special Exception was denied by the County Zoning Hearing Examiner on May 20, 2013. (ECF No. 31). Plaintiffs filed their complaint on June 14, 2013 asserting eight counts. Count I claims that the stricter regulations of CB-46 and CB-56 burden only adult entertainment and therefore violate the challenge Equal the Protection zoning Clause. regulations Counts as II violating and the VII First Amendment, specifically that the regulations lack the required evidentiary support (Count II) and fail to provide alternative avenues of communication (Count VII). claim that procedural the Special safeguards unconstitutionally Exception (Count vague III); (Count process contains V); and administrative discretion (Count VI). Plaintiffs lacks terms allows adequate for adequate that are unbridled Additionally, Count IV claims that the effect of CB-46 and CB-56 constitutes a taking of property for which Plaintiffs have not been provided due process nor just compensation. Finally, Count VIII alleges that the not zoning regulations do provide for amortization period as required by Maryland law. 57-97). 5 an adequate (ECF No. 1 ¶¶ Plaintiffs filed a motion for a preliminary injunction and a temporary restraining order on July 5, 2013. (ECF No. 10). Defendant filed their opposition on July 26, 2013 (ECF No. 15), and Plaintiffs replied on August 22, 2013 (ECF No. 24). Defendant filed a motion to dismiss for failure to state a claim or, in the alternative, for summary judgment, on August 13, 2013. (ECF September 6, No. 22). 2013 (ECF Plaintiffs No. 28), September 11, 2013 (ECF No. 29). both motions on September 13, 2013. II. filed and their opposition Defendant replied on on The court held a hearing on (ECF No. 30). Standard of Review A. A Preliminary Injunction/Temporary Restraining Order preliminary injunction is an extraordinary remedy and will only be granted if the plaintiff clearly establish[es] that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in injunction is in the public interest. his 1 and (4) an Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).1 all four requirements to obtain relief. favor, Plaintiff must prove Id. The standard for a temporary restraining order is the same as a preliminary injunction. See, e.g., Muhammed v. Bernstein, No. RDB-12-1444, 2013 WL 3177864, at *2 (D.Md. June 21, 2013). 6 B. Motion to Dismiss The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Charlottesville, 464 F.3d 480, 483 (4th Presley v. City of Cir. 2006). A plaintiff s complaint need only satisfy the standard of Rule 8(a), which requires a short and plain statement of the claim showing that the pleader is entitled to relief. 8(a)(2). Fed.R.Civ.P. Rule 8(a)(2) still requires a showing, rather than a blanket assertion, of entitlement to relief. v. Twombly, 550 U.S. 544, 555 n.3 (2007). Bell Atl. Corp. That showing must consist of more than a formulaic recitation of the elements of a cause of action or naked assertion[s] devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). At this stage, all well-pleaded allegations in a complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In evaluating the complaint, unsupported legal allegations not need be accepted. Revene Comm rs, 882 F.2d 870, 873 (4th Cir. 1989). v. Charles Cnty. Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. 7 at 678, as are conclusory factual allegations devoid of any reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). C. Motion for Summary Judgment A motion for summary judgment will be granted only if there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. (1986). The moving party bears the burden of showing that there is no genuine dispute as to any material fact. 242, 250 However, no genuine dispute of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of his or her case as to which he or she would have the burden of proof. Celotex, 477 U.S. at 322 23. Therefore, on those issues on which the nonmoving party has the burden of proof, it is his or her responsibility to confront the summary judgment motion with an affidavit or other similar evidence showing that there is a genuine issue for trial. Summary judgment is appropriate under Federal Rule of Civil Procedure Rule 56(a) when there is no genuine dispute as to any material fact, and the moving party is plainly judgment in its favor as a matter of law. In entitled to Anderson v. Liberty Lobby, Inc., the Supreme Court of the United States 8 explained that, in considering a motion for summary judgment, the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. 477 U.S. at 249 (1986). A dispute about a material fact is genuine if the evidence is such that nonmoving a reasonable party. jury Id. at could 248. return Thus, a verdict for the judge must ask the himself not whether he thinks the evidence unmistakably favors one side return a or the other verdict presented. for but the whether a [nonmoving fair-minded party] on jury the could evidence Id. at 252. In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The mere existence of a scintilla of evidence the in support of non-moving party's case is not sufficient to preclude an order granting summary judgment. See Anderson, 477 U.S. at 252. A party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences. Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted). 9 Indeed, this court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999 F.2d 774, (4th 778 79 Cir. 1993) (quoting Felty v. Graves Humpreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)). III. Analysis A. As Plaintiffs Standing an initial matter, Defendant Plaintiffs John Doe and Jane Doe. and Jane Doe represent a has moved to dismiss (ECF No. 22-1, at 4-5). class of plaintiffs John who are, respectively, patrons and performers at Plaintiffs gentlemen s clubs. (ECF No. 1 ¶¶ 9-10). Defendant s zoning Plaintiffs allege that because of regulations, these groups of people were injured by being deprived access to First Amendment protected performances, and the ability to engage in such performances. (Id.). Plaintiffs carry the burden of establishing standing and constitutional rights are personal and may not be asserted vicariously. Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). Plaintiffs have not alleged that John and Jane Doe individuals who wish to keep their identities private. See, e.g., James v. Jacobson, 6 F.3d 233, 238-39 (4th Cir. 1993). have Plaintiffs made an overbreadth challenge to the are Nor zoning regulations, a doctrine which enlarges the class of plaintiffs 10 that have standing. See, e.g., United States v. Williams, 553 U.S. 285, 304 (2008). Doe lack standing Plaintiffs will Therefore, Plaintiffs John Doe and Jane and be Defendant s granted. See motion Wet to Sands, dismiss Inc. v. these Prince George s Cnty., No. MJG-06-2243 & MJG-06-2581, 2007 U.S. Dist. LEXIS 102331, at *1 n.1 (D.Md. Apr. 12, 2007) (dismissing similarly situated plaintiffs in a challenge to regulations of adult entertainment businesses). B. First Amendment Challenge to CB-46 and CB-56 The level of scrutiny a court applies to a legislative enactment in a First Amendment analysis depends on whether the statute is deemed content-based or content-neutral. based statute would be considered subject to strict scrutiny. Books, Inc., 535 U.S. A content- presumptively invalid and City of Los Angeles v. Alameda 425, 434 (2002) (plurality opinion). However, a content-neutral statute is properly analyzed . . . as a time, intermediate Theaters, content place, and scrutiny. Inc. lays neutral manner Id. out time, regulation City the of following place, and Renton and receives v. Playtime standard: manner so-called regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues addition of to communication. the two 475 explicit 11 U.S. Renton 41, 46-47 (1986). requirements In regarding substantial channels, governmental a interest content-neutral and zoning reasonable ordinance alternative that imposes distance and space requirements on adult businesses must also be narrowly tailored to achieve the government interest. v. Rock Against Racism, 491 U.S. 781, See Ward 795 802 (1989). Expressive conduct enjoys less protection than does pure speech and restrictions on its exercise constitutionally permissible. are more likely to be Legend Night Club v. Miller, 637 F.3d 291, 300 (4th Cir. 2011) (quoting Steakhouse, Inc. v. City of Raleigh, N.C., 166 F.3d 634, 637 (4th Cir. 1999)). Importantly, while the burden of demonstrating the constitutionality of regulations such as CB-46 and CB-56 would fall on the government in the usual course of business, when a plaintiff seeks a preliminary injunction, the burden switches to him to Winter, prove 555 that U.S. he is likely at 20. to succeed Consequently, on the merits. Plaintiffs must demonstrate a likelihood that they will succeed on the merits by demonstrating that burden the that the County zoning will not ordinances be able either: to (1) meet advance its a substantial governmental interest; (2) are narrowly tailored; or (3) provide adequate alternative avenues of communication. Plaintiffs do not allege that the County cannot demonstrate that the regulations are narrowly tailored, so the remainder of this analysis will focus on their likelihood of success on either the 12 substantial governmental interest or alternative avenues prongs. 1. Substantial Governmental Interest Numerous cases have found that a facially neutral ordinance that does analyzed not . ban . as . adult a theaters time, altogether place, and manner is properly regulation. Alameda Books, 535 U.S. at 434. The County s zoning regulations are very similar to those in Renton, which prohibited adult movie theaters from locating within one thousand (1000) feet of any residential zone, church, park, and within one mile of any school. 475 U.S. at 44. However, mere facial neutrality is not sufficient. It must be shown that the regulations are designed to a advance substantial government interest, specifically combatting the negative secondary effects associated with adult entertainment businesses. Id. at 47. At the preliminary injunction stage, Plaintiffs must demonstrate that it is likely that the government will fail to make this demonstration. A substantial amount of disagreement between the parties revolves around how much evidence the County needs to produce and whether it did so for CB-46 and CB-56. Plaintiffs argue that the existence of these adverse secondary effects must [be] established through competent, substantial evidence, and that the County has adopted ordinance after ordinance . . . with no showing of necessity. (ECF No. 11, at 4, 7) (emphasis in 13 original). Plaintiffs contend that CB-46 and CB-56 cannot be seen as reasonable or necessary, because they were adopted with no evidence to show secondary effects concerns. it was adopted in response to (Id. at 8). The Supreme Court has held that [t]he First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses. 52. Renton, 475 U.S. at 51- Moreover, cities may rely on the evidentiary foundation established in other judicial activity is of the same character. opinions if the expressive City of Erie v. Pap s A.M., 529 U.S. 277, 296-97 (2000) (plurality opinion) ( Because the nude dancing at Kandyland is of the same character as the adult entertainment at issue in Renton, Young v. American Mini Theaters, and California v. LaRue, it was reasonable for Erie to conclude that such nude dancing was likely to produce the same secondary effects. And Erie could reasonably rely on the evidentiary foundation set forth in Renton and American Mini Theaters to the effect that secondary effects are caused by the presence of even one adult entertainment establishment in a given neighborhood. ) (internal citations omitted); id. at 31314 (Souter, J., concurring in part and dissenting in part) (the 14 evidentiary basis may be borrowed from the records made by other governments if the experience elsewhere is germane to the measure under consideration and actually relied upon. I will assume, further, that the reliance may be shown by legislative invocation of a judicial opinion that accepted an evidentiary foundation as sufficient for a similar regulation. ). In a series of cases examining the constitutionality of laws regulating the location and conduct of adult entertainment businesses, the United States Court of Appeals for the Fourth Circuit has held that a jurisdiction may demonstrate the efficacy of its method of reducing secondary effects by appeal to common sense, rather than empirical data. Imaginary Images, Inc. v. Evans, 612 F.3d 736, 742 (4th Cir. 2010) (quoting Alameda Books, 535 U.S. at 439-40 (plurality opinion)) (citing Alameda Books, 535 U.S. at 451-52 (Kennedy, J., concurring in the judgment)); see also Legend Night Club v. Miller, 637 F.3d 291, 299 (4th Cir. 2011) (failure of county to produce evidence of harmful secondary effects in its jurisdiction might not pose a problem if the challenged restrictions applied only to bars and clubs that present nude or topless dancing. (quoting Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 516 (4th Cir. 2002) ( Giovani I ) (quotation marks omitted)); Carandola, Ltd. v. Fox, 470 F.3d 1074, 1082 (4th Giovani Cir. 2006) ( Carandola II ) ( even without considering any evidence, we can 15 conclude that the State has a substantial interest in regulating nude and topless dancing, because such entertainment has a long history of spawning deleterious effects. (quoting Carandola I, 303 F.3d at 516)). These holdings are animated by the principle that the legislature has policy expertise [which] is entitled to deference. Imaginary Images, 612 F.3d at 742 (internal quotations and citations omitted). The County does not have to provide evidence that rules out every theory for the link between the location of adult entertainment establishments and negative secondary effects that is inconsistent with its own. Nor do officials establishment effects. need to actually Imaginary Alameda Books, 535 U.S. at 434. show that generates Images, each the 612 individual undesired F.3d at adult secondary 747 (quoting Independence News, Inc. v. City of Charlotte, 568 F.3d 148, 156 (4th Cir. 2009) (internal quotation marks omitted)). A demonstration that adult entertainment businesses as a category produce secondary effects is sufficient. Presently, there is little in Id. the record or briefing concerning the motivations of the County or the effects (or lack thereof) introduced hearing. of adult evidence entertainment or produced businesses. witnesses Neither during the party motions But even in the absence of evidence adduced at the hearing or in the submissions, Fourth Circuit jurisprudence has 16 held that appeals to common sense and common experience are sufficient for the County to meet its burden in demonstrating a substantial interest. See Legend Night Club, 637 F.3d at 299; Imaginary Images, 612 F.3d at 742; Carandola II, 470 F.3d at 1082. Given this standard, and the absence of any demonstration by the Plaintiffs that these presumptions are not applicable to CB-46 and CB-56, Plaintiffs have failed to demonstrate the required likelihood of success on the merits necessary for a preliminary injunction for this aspect of the intermediate scrutiny inquiry.2 2 Following the hearing, Plaintiffs filed a notice of supplemental authority, specifically Annex Books, Inc. v. City of Indianapolis, Ind., 740 F.3d 1136 (7th Cir. 2014), a recent decision by the United States Court of Appeals for the Seventh Circuit. There, the city of Indianapolis passed an ordinance prohibiting adult bookstores from operating between midnight and 10 a.m. every day, and all day Sunday. The city s only justification for the restriction was to reduce armed robberies at or near the bookstores. The Seventh Circuit rejected this justification and invalidated the law, holding that the regulation mandating closure suppressed speech as opposed to regulating the secondary effects. Furthermore, the adult bookstores purported secondary effects affects those that voluntarily patronize the bookstores, as opposed to the regulations in Renton and Alameda Books, which sought to protect audiences that wanted nothing to do with the businesses. Id. at 1137-38. There are multiple differences between Annex Books and this case. First, Indianapolis s solution to a perceived problem was to close the stores for a period of time. Plaintiffs here are challenging the County s location requirements. Second, and more importantly, Annex Books was decided by the Seventh Circuit, not the Fourth Circuit. Fourth Circuit jurisprudence is more accommodating of municipalities on the question of how much evidence of negative secondary effects that must bring 17 Defendant also moved for partial summary judgment on this point. As the County can meet its burden by appeals to common sense, the matter is at an end unless the plaintiff produces clear and convincing evidence to rebut it. Imaginary Images, 612 F.3d at 742 (quoting Carandola I, 303 F.3d at 516). As discussed in the preceding paragraph, Plaintiffs have provided no evidence combat the to negative businesses. summary rebut the showing secondary Consequently, judgment on the that effects CB-46 of Defendant s issue of and adult motion substantial CB-56 will entertainment for partial governmental interest will be granted. 2. Reasonable Alternative Channels of Communication CB-46 and CB-56 give adult entertainment businesses two location options: (1) the I-2 zone as a matter of right; and (2) their current location in the C-S-C, C-M, I-1, and U-L-I zones forth. Compare Annex Books, 740 F.3d at 1137 (faulting the city s justification that closure will result in fewer armed robberies because it did not, among other things, use a multivariate regression to control for other potentially important variables, such as the presence of late-night taverns) and New Albany DVD, LLC v. City of New Albany, Ind., 581 F.3d 556 (7th Cir. 2009) (city needs to provide evidence that risks of passer-by theft is greater when the adult entertainment business is in proximity to a church) with Imaginary Images, 612 F.3d at 742 (quoting Alameda Books to state that very little evidence is required and the efficacy of a municipality s method of reducing secondary effects may be demonstrated by appeal to common sense rather than empirical data ). The recent decision in Annex Books does not change controlling Fourth Circuit law. 18 only if they were operating in that location pursuant to a valid use and occupancy permit to include adult entertainment when CB56 was enacted (Nov. 7, 2011) and receive a Special Exception from the County. in the I-2 Exception Plaintiffs argue that the alternative avenues zone, coupled process, with result in avenues of communication. a the fatally lack of flawed sufficient Special alternate Plaintiffs posit that the court must answer two questions: (1) what is the actual number of sites available; and (2) do these opportunity for expression. Neither the sites provide a reasonable (ECF No. 11, 23-28). Supreme Court nor the Fourth Circuit has completely refined the test from Renton for determining whether particular sites are constitutionally entertainment business relocation. available for adult Bigg Wolf Discount Video Movie Sales, Inc. v. Montgomery Cnty., 256 F.Supp.2d 385, 395-96 (D.Md. 2003). only that Renton held that the First Amendment requires the respondents a County reasonable refrain from opportunity effectively to open and [adult entertainment business] within the [County]. at 54. favorable The County treatment does to not ensure have they to give can the find denying operate an 475 U.S. businesses alternative property, but instead it is acceptable to have the businesses fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees. 19 Id. Subsequent cases have held that the standard for availability is that an obstacle that can be overcome without incurring unreasonable expense does not make a site unavailable, but an obstacle that cannot reasonably be overcome renders the site unavailable. v. City of (quotation Bigg Wolf, 256 F.Supp.2d at 396 (quoting Woodall El Paso, marks 49 F.3d omitted). 1120, (5th 1124 Unavailable areas Cir. 1995)) include areas lacking infrastructure, areas unsuitable for generic commercial development, or sports stadiums, airstrips of airports, or land under the ocean. Id. (citing Woodall, 49 F.3d at 1124). The fact that the land is simply economically undesirable is not enough to be deemed unavailable; instead, it must be shown that the alternative land is actually unavailable. 475 U.S. at 54 ( we have never suggested that See Renton, the First Amendment compels the Government to ensure that adult theaters . . . will be able to obtain sites at bargain prices. ); Lund v. City of (improper Fall River, Mass., to consider the 714 F.3d market 65, effects 70 of (1st Cir. other 2013) people s commerce or the economics of site clearance ); Daytona Grand, Inc. v. City of Daytona Beach, Fla., 490 F.3d 860, 871 (11th Cir. 2007) ( the economic feasibility of relocating to a site is not a First Amendment concern. ); Ambassador Books & Video, Inc. v. City of Little Rock, Ark., 20 F.3d 858, 864-65 (8th Cir. 1994) ( the cost factor is unimportant 20 in determining whether the ordinance satisfies the standards of the First Amendment. ); Steiner v. Cnty. Comm rs of Caroline Cnty., 490 F.Supp.2d 617, 626 (D.Md. 2007) ( to demonstrate a genuine issue of material fact [plaintiff] must present evidence demonstrating that the land is actually unavailable, not that the land available is simply economically undesirable ), aff d sub nom., McDoogal s East, Inc. v. Cnty. Comm rs of Caroline Cnty., 341 F.App x 918 (4th Cir. 2009). The Fourth Circuit has not adopted the Ninth Circuit s requirement that a site have proper infrastructure to be considered available. Bigg Wolf, 256 F.Supp.2d at 398 n.11; accord McDoogal s East, 341 F.App x. at 930 ( The fact that Steiner may not have desired to pay fair market value or develop the sites is not proof of a lack of available alternate sites. ). It is irrelevant that a site is currently occupied or that the current owners might be unwilling to sell or lease to a sexually oriented business. See Lund, 714 F.3d at 70; Daytona Grand, 490 F.3d at 871; Bronco s Entm t, Ltd. v. Charter Twp. of Van Buren, 421 F.3d 440, 452 (6th Cir. 2005); Woodall, 49 F.3d at 1125-26. Additionally, the Constitution does not mandate that any minimum percentage of land be made available for certain types of speech. Allno Enters., Inc. v. Balt. Cnty., Maryland, 10 F.App x 197, 201 (4th Cir. 2001) (quoting N. Ave. Novelties, Inc. v. City of Chicago, 88 F.3d 441, 445 (7th Cir. 1996) (quotation marks omitted)); see also Big Dipper Entm t, LLC v. 21 City of Warren, 641 F.3d 715, (6th 718-19 Cir. 2011) (the question of whether Plaintiff had a reasonable opportunity to open and operate an adult business does not turn on arbitrary percentages or formulas. Depending on the facts of the case, of course, percentages or formulas can be relevant to the outcome; but that does not mean that governs in every case. ). the same percentage or formula The number of sites available for adult businesses under the new zoning regime must merely be greater than or equal to the number of adult businesses existence at the time the new zoning regime takes effect. in Bigg Wolf, 256 F.Supp.2d at 398 (citing Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1532-33 (9th Cir. 1993)). The availability of alternative avenues of communication is a very fact-specific question. While not explicit in their brief, Plaintiffs seem to contend that the new zoning laws only leave available an impermissibly small 0.05% of the land in the County. (ECF No. 10, at 27). Plaintiffs provided no studies or expert testimony to corroborate this figure. Even assuming that the 0.05% figure is accurate, that alone does not demonstrate Plaintiffs likelihood of success on the merits as there is no minimum percentage of land that must be made available to adult entertainment businesses. See Allno Enters., 10 F.App x at 201. Such minimums alone without any comparison to the number of adult entertainment business existing at the time of enactment 22 run the risk of being overly generous or overly restrictive, depending on the circumstances. Plaintiffs adopted the comparison method in their opposition brief and provided an affidavit by Mr. Mark Ferguson, a land planner. Plaintiffs allege there are currently fourteen (14) adult entertainment businesses in the County, but according to Mr. Ferguson, there could be as few as four (4) eligible sites in Zone I-2, depending on how the County defines certain terms or enforces the regulations. Hutchison from the County (ECF No. 28, Ex. A). Planning Department Dale contends that there are presently 552 acres in the I-2 zone that satisfy the 1000 foot setback from a school or residential zone, though owing to the limits of the County s records, this number is not precise. expert (ECF No. 22-2).3 used faulty Defendant contends that Plaintiffs methodology which resulted in overly conservative results, including how the 1,000 foot separation was measured. (ECF No. 29, at 7-9). In arriving at his contention that there are only four available sites, Plaintiffs expert assumes that the 1,000 foot requirement is measured from 3 The affidavit indicates that the County is unable to include in its calculations the 1000 foot setback from other adult entertainment sites because no data is kept by the planning office on the locations of those properties. Additionally, the affidavit indicates that it would be too complicated to know how many acres were available when CB-46 and CB-56 were enacted in 2010 and 2011, respectively. (ECF No. 222). 23 property line to property line. (ECF No. 28, Ex. A ¶ 52). However, an affidavit from an official of the Maryland-National Capital Park and Planning Commission corrects that assumption, setting forth the County s official interpretation that the 1,000 foot separation will be measured from the front/main door of the improvement on Parcel A to the front/main door of the improvement on Parcel B, and shall follow street or right-of-way lines. (ECF No. 29-1 ¶ 8). This more liberal reading opens up the number of potential sites available for adult entertainment businesses, and calls into serious question whether there are only four sites available in the I-2 zone. Plaintiffs argue that this completely nebulous and imprecise manner of measuring is simply a crude attempt to try and salvage the laws in the face of this litigation. According to Plaintiffs, because this door to door measurement is not published in any legislation or code, there is no guarantee that Defendant will not forget about it and resort to the more restrictive permitted property by the text to property measurement of CB-46 CB-56. and technique Additionally, Plaintiffs argue that Defendant s interpretation does not fully account for all possible situations. CB-46 and CB-56 require every adult entertainment business to be at least 1,000 feet from any residential zone or land used for residential purposes in any zone. But Defendant s door to door measurement does 24 not account for a situation where an adult entertainment business wishes to locate proximate to a residential zone, where potentially no building (and thus no door) exists to establish a measurement. Furthermore, the statutes speak of land used for residential Plaintiffs, purposes. the (emphasis natural meaning added). of According land property, is to not building, indicating that Defendant is not embracing all of CB46 and CB-56 s setback criteria and is therefore unconstitutional. It is hard to see the basis of Plaintiffs complaint. Defendant points out, measuring door to door by As following street or right-of-way lines will be more beneficial to adult entertainment businesses in every possible circumstance: a building will always be set back some distance from the property line and streets rarely follow the crow s flight. Defendant s Office of General Counsel, a As noted by door to door interpretation is consistent with the section of the County Code dealing with adult book stores and/or adult video stores, Section 27-904(b)(1), and the Maryland Code regarding liquorlicenses in the County, Md. Code., Art. 2B § 9-217. counter by attaching straight-line regard to a third-party measurement structures, is from the report property logical (ECF No. 32-2). 25 to Plaintiffs concluding property, method of that a without measurement. Nevertheless, Plaintiffs have not shown how Defendant s approach harms them or violates the Constitution. Certainly, Defendant s interpretation could lead to absurd results. For example, an adult entertainment business would be permitted to establish itself directly behind a school under the door to door measurement method if the distance traveled between front door to front door, via streets and right-of-ways is 1,000 feet, even though measurement under the the traditional properties impermissibly close. would property be to adjacent property and thus Plaintiffs report sensibly concludes that where the method of measurement is not specified, courts should adopt the straight-line property to property method as it will further the drafters intentions. But Plaintiffs provide nothing to suggest that when the local jurisdiction desires a measurement method that seemingly runs counter to its self- interest it is the judiciary s role to stand in its way. Furthermore, Plaintiffs have failed to demonstrate that Defendant s interpretation will result in an injury. It is true that the zoning ordinances use of the term land, without more, suggests that setback measurements should be made property line to property line. But Plaintiffs have failed to make any allegation that such an interpretation harms them in any way. In a situation where there is no building on a property, the natural measurement spot would be the property line. 26 This would be consistent with the section of the County Code dealing with adult video stores and adult book stores, § 27-904(b)(2), and would not disadvantage Plaintiffs more than the property to property interpretation they seem to favor. Finally, Plaintiffs interpretation is not concerns grounded in binding authority are premature. that Defendant will that the the door to door Code or other County There is a reasonable fear abandon its Plaintiff-friendly interpretation once it is no longer in its self-interest. If and when a pattern of abuse or inconsistent treatment emerges, that will be the time to deal with dishonest applications of the regulations, not on a facial challenge. See Thomas v. Chicago Park Dist., 534 U.S. 316, 324-25 (2002) (where a regulation permitted some level of appropriately bounded discretion abuse must be dealt with if and when a pattern of unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is found in few legal arrangements. ). Given this and other potential methodological errors identified by Defendant, Plaintiffs have not met their burden of demonstrating likelihood of success on this aspect of the judgment, the merits. Turning to Defendant s motion for summary County argues that even accepting Plaintiffs methodology, there 27 are adequate alternative avenues of communication.4 To do so one has to omit those businesses that have pending applications for a Special Exception to stay at their current locations outside the I-2 zone and essentially consider them secure location and not requiring an alternative site. in their The County has filed an affidavit that six of the fourteen adult entertainment businesses in the county have applied for a Special Exception. (ECF No. 29-3 ¶ 5).5 Plaintiffs in their brief contend that there are as few as eight available sites in the I-2 zone. No. 28, at 14). (ECF Defendant takes this figure and argues the following: if one examines the number of businesses needing to move (eight) and the number of sites Plaintiffs argue are available (eight), then there are adequate alternative avenues of communications because all that is needed is at least an equal number of available sites as businesses that need to move. Defendant arrives at eight adult entertainment businesses in 4 Defendant s expert states that there are 552 acres available in the I-2 zone once unavailable land is removed (e.g. Chalk Point power plant) and the required 1,000 foot setback from schools and residential zones is accounted for. Defendant does not attempt to quantify how many actual sites as opposed to acreage - are available for adult entertainment businesses. Furthermore, the County s figure of 552 acres does not at all consider how the relocation of one adult entertainment business into an I-2 zone will affect the rest of the availability of that zone given the requirement that all adult entertainment businesses be at least 1,000 feet from each other, regardless of the measurement methodology used. 5 This figure includes application has been denied. D2, 28 whose Special Exception need of new locations by not including the six of the fourteen adult entertainment businesses that have applied for a Special Exception to stay at their current location. 9). Thus, according to Defendant, (ECF No. 29, at there are eight adult entertainment businesses in need of a new location and, taking Plaintiffs expert s calculation, eight available sites in the I-2 zone. Because the number of available sites is equal to the number businesses of in need, the Zoning Ordinances provide adequate alternative locations. Defendant s Defendant s view figures, will one not must be adopted. take the view To arrive at the six that businesses that have applied for a Special Exception do not have to move and, therefore, should not be part of the calculation of businesses that now need an alternative avenue. drawn from businesses the in cases the C-M, leads to C-S-C, the I-1, The principles conclusion and U-L-I that those zones whose requirement to vacate is dependent on the outcome of a Special Exception application should count as businesses needing a new location Viewing in the the adequate numbers in alternative the light most avenues calculation. charitable to the nonmoving party (as required on a motion for summary judgment), if a Plaintiff s application for a Special Exception is denied, there will not be even one available site for that business in the I-2 zone. Furthermore, Defendant s representation that only 29 eight businesses need to move does not include D2, whose Special Exception application has been denied by the County s Zoning Hearing Examiner, a decision upheld on appeal to the County Council sitting as the District Council. (ECF No. 34-1). The businesses currently operating in the C-M, C-S-C, I-1, and U-L-I zones are given a Hobson s choice: either (1) join the thirteen other adult entertainment businesses and rush to snap up one of the eight available sites in I-2 (putting to one side that such an arrangement would violate the First Amendment); or (2) gamble on the Special Exception process, but if the gamble fails then you are out of luck because presumably your competitors have grabbed up all the available I-2 land in the interim. An arrangement that requires a business to obtain a license like a Special Exception to operate anywhere in the County could be acceptable, but there are characteristics about Defendant s scheme that distinguish it. The subset of businesses eligible to apply for a Special Exception have only one opportunity for success against or those locations considering their alternative location. given the difference are forever status as closed, not counseling requiring an Additionally, hesitation is called for between the available sites and the number of adult businesses that need to relocate to those sites. If one does not include those businesses that have applied for a Special Exception which, as 30 discussed above, will not be accepted - businesses. there could be as few as eight sites for eight While courts have held that the number of sites available must merely be greater than or equal to the number of adult entertainment businesses in existence at the time the new zoning regime takes effect, Bigg Wolf, 256 F.Supp.2d at 398 (citation omitted) (emphasis added), the unique aspects of the six businesses currently located in zones other than I-2 leads to the conclusion that they should be included in considering the adequacy of the available sites. This is especially true now that D2 s application has been denied, seemingly placing it amongst the eight other businesses requiring a new location. Consequently, there is a material dispute of fact on the issue of the adequacy of alternative avenues of communication and Defendant s motion for summary judgment on Count VII will be denied. a. Restrictive Covenants The parties submitted supplemental briefing on the issue of whether reasonable alternatives can include land that is not apparently available for use as an adult entertainment business because of privately agreed-upon restrictive covenants. In this case, Plaintiffs expert did not consider land available in the Washington Business Park, even though it was in the I-2 Zone and would have satisfied the various setback requirements, because the land had a restrictive covenant that, while not explicitly 31 excluding adult entertainment businesses, would strongly appear to. (See ECF No. 28-1 at 6-7 (retail uses in the business park limited to the sale of goods and services reasonably required for the convenience of occupants within [the business park]. )). Defendant contends that land that carries a restrictive covenant should be considered available as it is an agreement between private parties, not a government-imposed restriction. Defendant represents that the Washington Business Park contains twenty-one (21) eligible sites, which could house up to three (3) adult entertainment businesses once the required 1,000 foot separation between adult entertainment businesses is accounted for. Neither addressed how the the Supreme Court existence nor of the Fourth restrictive Circuit covenants have factors into the adequate alternative avenues of communication analysis. Some courts have suggested, primarily in dicta, that land with restrictive covenants precluding adult use is not a reasonable alternative. In Lund v. City of Fall River, MA, 740 F.3d at 70 n.1, plaintiff pointed to the United States Court of Appeals for the First Circuit s prior pronouncement in D.H.L. Assocs., Inc. v. O Gorman, 199 F.3d 50, 60 n.6 (1st Cir. 1999), that the existence of restrictive covenants would have made that case entirely different, as a clear indication that restrictive covenants are relevant to the availability determination. 32 The Lund court responded [m]aybe so, observing that restrictive covenants are substantive land-use restrictions enforceable by the governmental power of the courts, but were not relevant to this case because plaintiff had failed to offer any evidence of restrictive covenants pertaining to adult entertainment businesses. 714 F.3d at 70 n.1; see also Woodall, 49 F.3d at 1127 (noting that the record suggested only three situations in which the evidence might support an inference that a specific site and its surrounding area were physically or legally unavailable: three sites and their surrounding areas may have been subject to reciprocal easements barring adult businesses, but the Ordinances still left a sufficient area physically and legally available for at least forty adult businesses to operate ); Ice Embassy, Inc. v. City of Houston, Civ. Action No. H-97-0196, 2007 WL 397447, at *15 (S.D.Tex. Jan. 31, 2007) (finding that three sites subject to deed restrictions that were in place before the ordinance was adopted and specifically precluded use of the site for a sexually-oriented business were not available ); T & A s, Inc. v. Town Bd. of Town of Ramapo, 109 F.Supp.2d 161, 169 (S.D.N.Y. 2000) (excluding a lot with a restrictive covenant from the list of available alternatives). Other courts have explicitly held that restrictive covenants, so long as the municipality is not a party, are not relevant to the analysis. In Lim v. City of Long Beach, 217 33 F.3d 1050, 1055 (9th Cir. 2000), the United States Court of Appeals for the Ninth Circuit held that the district court did not err in considering as available sites with restrictive leases banning adult entertainment establishments. earlier decision in Citing its Topanga Press, 989 F.2d at 1531-32, the court held that sites must only reasonably become available to some generic enterprise, not specifically to adult businesses. Lim, 217 F.3d at 1055. Because the site may be available to some commercial enterprise, it can be considered part of the available property. of St. Id.; see also Centerfold Club, Inc. v. City Petersburg, 969 F.Supp. 1288, 1302 (M.D.Fla. 1997) ( Municipal or local governments are under no obligation either to dictate that third parties make their land available to adult establishments or to consider whether such private restrictions in fact government exist. has enterprise. ). The made The critical the land United issue is available States Court whether for of any the commercial Appeals Eleventh Circuit has noted that: [t]he First Amendment is not concerned with restraints that are not imposed by the government itself or the physical characteristics of the sites designated for adult use by the zoning ordinance. It is of no import under Renton that the real estate market may be tight and sites currently unavailable for sale or lease, or that property owners may be reluctant to sell to an adult venue. 34 local for the Daytona Grand, Inc. v. City of Daytona Beach, Fla., 490 F.3d 860, 871 (11th Cir. 2007) (quoting David Vincent, Inc. v. Broward Cnty., Fla., 200 F.3d 1325, 1335 (11th Cir. 2000)). The court in Daytona Grand found [i]t is irrelevant for our purposes that all of the land . . . is owned by a single private landowner who may be reluctant or unwilling to develop or sell the land. Id.; see also Bottoms Up Enters. v. Borough of Homestead, Civ. Action No. 07-344, 2007 WL 2908762, at *24-25 (W.D.Pa. Oct. 4, 2007) (surveying the split in authority and predicting that the United States Court of Appeals for the Third Circuit would take the view that privately agreed-upon restrictive covenants that preclude adult commercial use use does on land not that is demonstrate otherwise that a available for municipality has failed to provide reasonable alternatives ). This court considered the issue of restrictive covenants in Bigg Wolf and adopted the reasoning of David Vincent and Centerfold Club, holding that local governments are under no obligation either to dictate that third parties make their land available consider to adult whether entertainment restrictive establishments covenants or leases third parties rendering a site unavailable. 396. or even exist to among 256 F.Supp.2d at Plaintiffs arguments and authorities for the contrary position are unconvincing, especially here where Plaintiffs can only speculate that the restrictive covenant would be enforced 35 to deny them the ability to locate on the land. In this context, a restrictive covenant concerning adult entertainment businesses is akin to a land owner that does not want to sell or lease to such a business. Courts have held that land in the latter situation is to be considered available. Daytona Grand, 490 F.3d at 871. See, e.g., So too in the former context. In the end, though, this conclusion is not relevant for the purposes of Defendant s deciding argument the and pending including motion. the Even three accepting available sites which carry a restrictive covenant, those three sites combined with the eight sites Plaintiffs contend are available leaves eleven, which is less than the fourteen businesses in Prince George s County. adult entertainment As mentioned earlier, determinations of adequate alternative avenues of communication is a very fact-intensive process. is a genuine dispute of material On the current record, there fact as to the number of available sites such that a determination that CB-46 and CB-56 leave adequate channels of communication as a matter of law cannot be made. Accordingly, summary judgment for the Defendant will be denied only to the issue of adequate alternative avenues of communication. encumbered against by adult a Going forward, land otherwise available but restrictive entertainment covenant between businesses available. 36 will private be parties considered C. Prior Restraint6 A zoning scheme that merely regulates the time, place, and manner of the protected speech is subject to the intermediate scrutiny discussed above. A regulation, however, that forbids a business from engaging in protected speech until the government has granted permission is considered a prior restraint and is unconstitutional if it does not limit the discretion of the 6 Count II alleges that the Special Exception constitutes a prior restraint. Counts III, V, and VI all allege defects in the Special Exception process that fall under the rubric of prior restraint. Therefore, all four of these counts will be considered under the heading Prior Restraint. The United States Court of Appeals for the Second Circuit has held that where there are adequate alternative avenues of communication for adult entertainment businesses to locate to as of right, a permit like that at issue here is not a licensing scheme subject to strict scrutiny, but instead a time, place, and manner regulation. Marty s Adult World of Enfield, Inc. v. Town of Enfield, Conn., 20 F.3d 512, 515 (2d Cir. 1994); see also Le v. City of Citrus Heights, No. Civ. S-98-2305 WBS/DAD, 1999 WL 420153, at *5 (E.D.Cal. Feb. 11, 1999) (citing Marty s, finding that permitting scheme is not susceptible to a prior restraint analysis because plaintiff could avoid its provisions altogether by moving to an area excluded from the license requirement); Crown Street Enter. v. City of New Haven, 989 F.Supp. 420, 423-24 (D.Conn. 1997) (noting that when a business need only move from one part of a city to another in order to avoid [a] prior restraint the full range of prior restraint safeguards associated with licensing scheme is not applicable). As will be discussed below, because the Special Exception criteria are permissible even under the more stringent licensing criteria, it is not necessary to postpone consideration of this issue pending the outcome of the issue of adequate alternative avenues of communication. 37 decisionmaker. See Thomas, 534 U.S. at 323-24.7 Plaintiffs claim that the Special Exception acts as a license and that its criteria vests unbridled administrative discretion in the hands of County officials. They argue that the Special Exception standards safeguards provide none required of of the local limitations, governments conditions, when used as or a prerequisite to engaging in First Amendment-protected activity.8 In support of their position, Plaintiffs place great weight on Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999). That case involved a City of Jacksonville scheme that allowed adult entertainment businesses to locate in one zone as of right, and allowed location in another zone only after receiving a zoning exception. The number of available sites in the as of right zone was inadequate for Jacksonville s adult entertainment community, forcing at least 7 The situation here is not technically a prior restraint in that the Plaintiffs are able to continue to operate their businesses while their Special Exception applications are pending, but courts in similar situations have analyzed the licensing scheme under traditional prior restraint factors. See, e.g., Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1361 (11th Cir. 1999). 8 While some of the Plaintiffs have not been denied Special Exceptions, they may still challenge the process without having to wait for that outcome. City of Lakewood v. Plain Dealer Publ g, 486 U.S. 750, 755-56 (1988) ( [W]hen a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license. ). 38 some to avail themselves of the zoning exception process. The court struck down the zoning laws, finding that the standards promulgated to guide the decision to grant a zoning exception did not contain the precise and objective criteria necessary to be valid. similar to requirement Id. the at 1362. Special that the Jacksonville s Exception proposed use criteria criteria, will were very including not have a an environmental impact inconsistent with the health, safety and welfare of the community ; will be compatible with the existing contiguous uses or zoning and compatible with the general character of the area, considering population density, design, scale and orientation of structures to the area, property values, and existing similar uses or zoning ; and will not overburden existing public services and facilities. Id. at 1369-70. If the Eleventh Circuit precedent in Lady J. applied, the criteria in question might fail. Controlling authority from the Fourth Circuit, however, counsels otherwise.9 9 In Steakhouse, Defendant argues that the Fourth Circuit case Covenant Media of South Carolina v. City of North Charleston, 493 F.3d 421 (4th Cir. 2007), stands at odds with Lady J. and is controlling. In Covenant Media, the Fourth Circuit evaluated Charleston s sign ordinance, which did not provide a deadline for the city authorities to make their decision to approve an application. Covenant Media challenged this as an unconstitutional prior restraint because it did not meet one of the procedural safeguards first laid out in Freedman v. Maryland: a restraint prior to judicial review can be imposed 39 Inc. v. City of Raleigh, N.C., 166 F.3d at 636, the Fourth Circuit examined the city of Raleigh s permitting scheme for gentlemen s clubs. Specifically, Section 10-2144(b)(6) required club owners to demonstrate that the club will not adversely affect public services and facilities such as parking, traffic, and police, and that the bar s secondary effects, such as noise, light, storm water runoff, parking, and pedestrian circulation will not adversely affect adjacent properties. The plaintiff argued that these criteria were impermissible as they were equivalent to the criteria struck down by the Supreme Court in Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969). At issue in Shuttlesworth was a permit requirement for a parade or public demonstration. should issue [determined unless that] the The the ordinance City public provided Commission welfare, that in peace, a its safety, permit judgment health, only for a specified brief period. 380 U.S. 51, 58-59 (1965). The Fourth Circuit, following the Supreme Court s decision in Thomas, held that Freedman s procedural requirements apply only where the law in question is content-based, as opposed to content-neutral. Defendant argues that their zoning ordinances are content-neutral time, place, and manner restrictions and therefore do not need to satisfy Freedman s procedural requirements. That may be so, but Defendant mistakes the substantive criteria for granting a Special Exception and the discretion it grants to the licensing official with the regulation s procedural requirements. They are separate requirements. The Supreme Court in Thomas kept in place the requirement that regulations contain adequate standards to guide the official s decision, even content-neutral regulations. See 534 U.S. at 323. 40 decency, good order, morals or convenience require that it be refused. Id. at 149-50. The Fourth equivalence Circuit argument, disagreed finding with that, the as plaintiff s opposed to Shuttlesworth s boundless terms, section 10-2144(b)(6) specifically requires the [city] to consider a topless bar s effect on parking, traffic, police protection noise, light, stormwater runoff, pedestrian circulation, and safety. Rather than allowing the decisionmaking body to manipulate such malleable concepts as local welfare, decency, and good order, section 10-2144(b)(6) channels the BOA s discretion, forcing it to focus on concrete topics that generate palpable effects on the surrounding neighborhood. Steakhouse, 166 F.3d at 639. A more officials signs. recent Fourth discretion, this Circuit time in case the also dealt context of with business In Wag More Dogs, LLC v. Cozart, 630 F.3d 359 (4th Cir. 2012), the county may issue a special exception to its sign regulations if the county found that the proposed use will not (1) affect adversely the health or safety of persons residing or working in the neighborhood of the proposed use; (2) be detrimental to the public welfare or injurious to property or improvements in the neighborhood; (3) be in conflict with the purposes of the master plans of the county. Fourth Circuit upheld these provisions, 41 Id. at 363. finding that The they contain adequate standards to guide the official s decision. Id. at 373 (quoting Thomas, 534 U.S. at 323). The court wrote: Like the ordinance upheld in Steakhouse, the Comprehensive Sign Plan Provision force[s] [the County Board] to focus on concrete topics that generate palpable effects on the surrounding neighborhood. Although the provision speaks of the normally amorphous concept of public welfare, we find that its placement alongside the phrase injurious to property or improvements in the neighborhood militates against an expansive reading of the provision, confined as it is to concerns about land and infrastructure. Id. (quoting Steakhouse, 166 F.3d at 639). Furthermore, the Fourth Circuit rejected plaintiff s argument that the provision that the county merely unfettered discretion. may grant the exception confers It held instead that the Supreme Court expressly foreclosed that argument in Thomas, finding that this abuse must be dealt with if and when a pattern of unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is found in few legal arrangements. Id. (quoting Thomas, 534 U.S. at 325). Defendant s Special Exception criteria closely mirror the sign ordinance upheld in Wag More Dogs. Requirements 3, 4, and 5 are nearly identical to the three requirements at issue in Wag More Dogs. (ECF No. 1, Ex. C).10 10 Requirements 2, 6, and 7 Requirements three, four, and five are set forth below: 42 sufficiently cabin discretion as they mandate conformance with already established criteria, specifically the requirements of the zoning code (#2); an approved Type2Tree Conservation Plan (#6); and preservation of the environment in accordance with applicable law (#7). Requirement #1 that the proposed use is in harmony with the purpose of this Subtitle (including the laws on placement and operation of strip clubs) may afford greater discretion than the other requirements, but even that is relatively cabined, consistent with the holdings of Steakhouse and Wag More Dogs. Consequently, Plaintiffs have failed to meet their burden of demonstrating a likelihood of success on the merits process in regard to constitutes Furthermore, their an pursuant claim that the unconstitutional to applicable Special prior Fourth Exception restraint. Circuit jurisprudence, Defendant has met its burden and Summary Judgment will be granted as to those counts of Plaintiffs complaint that (3) The proposed use will not substantially impair the integrity of any validly approved Master Plan or Functional Master Plan, or, in the absence of a Master Plan or Functional Master Plan, the General Plan; (4) The proposed use will not adversely affect the health, safety, or welfare of residents or workers in the area; (5) The proposed use will not be detrimental to the use or development of adjacent properties or the general neighborhood. 43 fall under the prior restraint heading, namely Counts II, III, V, and VI. Count I: Equal Protection11 D. Defendants move for summary judgment on Plaintiffs claim that that the new zoning laws violate the Equal Protection Clause by applying different standards to adult entertainment businesses. Plaintiffs allege that the laws are arbitrary, oppressive and capricious. (ECF No. 1 ¶ 58). They claim that the County has provided no evidence and has no justification for the disparate Plaintiffs interest. on treatment the basis (Id. ¶ 61). and of discriminatory any treatment legitimate of governmental Additionally, they allege that the County has singled out Plaintiffs for harassment via late night and business-disrupting inspections instead of following the normal code enforcement procedures. (Id. ¶ 59). Plaintiffs do not contend that they are members of any suspect class, rational basis and consequently, review. Rational the claim basis review is subject requires to that legislative action, [a]t a minimum, . . . be rationally related to a legitimate governmental purpose. 456, 461 (1988). Clark v. Jeter, 486 U.S. There is a strong presumption of validity 11 The remainder of this opinion deals with counts of Plaintiffs complaint that Plaintiffs did not raise in their motion for a preliminary injunction. Defendant moved for dismissal or summary judgment on these counts and they will be analyzed under those standards. 44 when examining a statute under rational basis review, and the burden is on legislative the party action unconstitutional. 314-15 (1993). to challenging establish the that validity the statute the of is FCC v. Beach Commc'ns, Inc., 508 U.S. 307, Finally, when undertaking rational basis review, the party defending the constitutionality of the action need not introduce evidence or prove the actual motivation behind passage, but need only demonstrate that there is some legitimate justification that could have motivated the action. Id. at 315. As discussed above, Plaintiffs have made no demonstration that the zoning considerations. ordinances are motivated by unconstitutional While Defendant has not presented evidence of its motivations either, in an Equal Protection challenge under rational basis review, the government need only demonstrate there is some legitimate justification that could have motivated the action. Defendant has made its showing under Fourth Circuit jurisprudence to satisfy the First Amendment s requirement that the law advances a substantial governmental interest and consequently has met Equal Protection s rational basis standard. See Renton, 475 U.S. at 55 n.4. As an alternative, a plaintiff can make an Equal Protection claim as a class of one if the plaintiff alleges that it had been intentionally treated differently from others similarly situated and that there was no rational basis to support the 45 different treatment. Myrtle Beach, 420 Sunrise Corp. of Myrtle Beach v. City of F.3d 322, (4th 328 Cir. 2005) (citations omitted). Defendant s argument for dismissal of the Equal Protection claim centers on the County inspections. speaking of alleged discriminatory application of Plaintiffs, in their opposition, seem to be discriminatory enforcement procedures in a hypothetical sense: The County is correct that Count I of the Complaint asserts that the County zoning ordinances violate the Equal Protection clause . . . because the County can exploit zoning enforcement procedures in a discriminatory way. No. 28, at 5-6) (emphasis in original). (ECF In neither their briefs nor the hearing did Plaintiffs present any evidence of such differential treatment, let alone evidence demonstrating that such differential discrimination. treatment Therefore, resulted Defendant s from motion purposeful for summary judgment as to Count I will be granted. E. Count IV: Regulatory Taking Plaintiffs argue that CB-46 and CB-56 have the effect of taking their property without compensation and without due process of law. They contend that enforcement of the zoning regulations allow businesses will without the County compensation. to eliminate (ECF No. 1 Plaintiffs ¶¶ 75-79). According to their complaint, Plaintiffs filed for a Special 46 Exception to remain at their current location, reserving their right to litigate any federal claims in federal court pursuant to England. (Id. ¶ 39). application has decided. To date, only Plaintiff D2 s It was denied, a decision that was upheld on appeal to the County Council sitting as the District Council. (See ECF Nos. 31-1 and 34-1). Defendant, in its motion for summary judgment, contends that Plaintiffs takings claim is not ripe for review by this court. They argue that pursuant to Supreme Court and Fourth Circuit precedent, before a regulatory takings case can be brought in federal court, the property owner must: (1) have a final administrative decision regarding the application of the challenged regulations to the property; and (2) first turn to the state procedures for seeking just compensation. Holliday Amusement Co. of Charleston, Inc. v. South Carolina, 493 F.3d 404, 406-07 (4th Cir. 2007) (citing Williamson Cnty. Reg l Planning Comm n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)). that Defendant argues that Plaintiffs have failed to assert they have obtained final administrative decisions concerning their properties nor have they pursued state just compensation procedures. (ECF No. 22, at 10).12 12 The Supreme Court has recognized that a facial takings challenge is generally ripe the moment the challenged regulation is passed, although such claims generally face an uphill battle, since it is difficult to demonstrate that mere enactment 47 Plaintiffs, in their opposition, argue the merits of the takings claim in a rather conclusory fashion: The loss of [Plaintiffs ] business through the regulatory prohibitions of the challenged legislation, when coupled with the lack of any secondary effects evidence and the other constitutional flaws of the challenged legislation, clearly amounts to a taking. (ECF No. 28, at 8). The state-litigation requirement in a regulatory takings case is a prudential rather than a jurisdictional rule, allowing the court to decide that the rule should apply. such discretion may be particularly Exercise of appropriate to piecemeal litigation or otherwise unfair procedures. avoid Town of Nags Head v. Toloczko, 728 F.3d 391, 399 (4th Cir. 2013) (quoting San Remo Hotel, L.P. v. City & Cnty. Of S.F., Cal., 545 U.S. 323, 346 (2005)). Plaintiffs provided no evidence demonstrating a regulatory taking as required by Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978), namely the economic impact of the zoning ordinances or the extent to which the regulation has interfered with their distinct investment-backed expectations. Additionally, it is not certain yet whether a regulatory taking is an actual issue in this case given that most of the Special Exception applications are pending. While of a piece of legislation deprived the owner of economically viable use of his property. Suitum v. Tahoe Reg l Planning Agency, 520 U.S. 725, 736 n.10 (1997). 48 D2 s application has been denied, there is no evidence that it has availed itself procedures. Plaintiffs For of the those takings state s reasons, claim to the it inverse is condemnation prudent requirements of to hold Williamson County and dismiss as unripe. F. Count VIII: Amortization Plaintiffs claim that the Defendant s zoning regulations fail to conforming satisfy Maryland s uses. CB-46, amortization enacted on doctrine September for 7, non2010, prohibited adult entertainment businesses everywhere but the I-2 zone, providing that any current business with a legal and valid use and occupancy permit had until May 1, 2013 to conform to the requirements. (ECF No. 1, Ex. A, at 13). November 2011, 15, loosened the rules, CB-56, enacted on allowing currently existing adult entertainment businesses located in the C-S-C, CM, I-1, or U-L-I zones to remain, provided they were approved for a Special Exception. Applications for those exceptions had to have been filed by June 1, 2012. Additionally, CB-46 s May 1, 2013 deadline for compliance was eliminated entirely. No. 1, Ex. B, at 5, 7-8). (ECF Plaintiffs characterized Defendant s suggestion that the time from November 15, 2011 to June 1, 2012 was an amortization period as ludicrous under the applicable law presented by Plaintiffs in their prior submissions. No. 24 at 23). 49 (ECF The law in Maryland is clear that if there is a valid use of property, and a subsequent change in zoning would render the use invalid, that new nonconforming use. 591, 601 (1950). regime does not apply to the See, e.g., Amereihn v. Kotras, 194 Md. A nonconforming use is a vested right and entitled to constitutional protection. Id. A nonconforming use may be reduced to conformance or eliminated in two ways: by amortization, that is, requiring its termination over a reasonable period of time, and by abandonment, i.e. non-use for a specific [] time. Trip Assocs., Inc. v. Mayor and City Council of Balt., 392 Md. 563, 575 (2006). True amortization provisions almost if not universally call for a termination of non-conforming uses after the lapse of a reasonable, specified period in order that the owner may amortize his investment (the reasonableness of the period depends upon the nature of the nonconforming therein). use, Md.App. omitted)). relationship structures thereon, and the investment Mayor & City Council of Balt. v. Dembo, Inc., 123 527, Salisbury, the 538-39 240 So (1998) Md. 556, long between the as (quoting 570-71 it Stevens (1965) provides amortization and v. City (quotation for the a of marks reasonable nature of the nonconforming use, an ordinance prescribing such amortization is not unconstitutional. Trip Assocs., 392 Md. At 575 (citing 50 Gough v. Bd. of Zoning Appeals for Calvert Cnty., 21 Md.App. 697, 704-05 (1974)). Given the current state of this case, it is premature to adjudicate this issue. As discussed above, there is a genuine issue of material fact as to the adequacy of the alternative avenues of communication. The reasonableness of the zoning ordinances amortization period is wrapped up in the adequacy question such that the outcome of the former depends entirely on the outcome of the latter. then the reasonableness If the I-2 zone is found adequate, of the amortization period becomes relevant. If the I-2 zone is found inadequate, however, the length time of nonconforming uses are given to relocate is secondary to the much larger problem that the ordinances violate the First Amendment. Cf. World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186, 1200 (9th Cir. 2004) ( As a general matter, an amortization period is insufficient only if it puts a business in an impossible position due to a shortage of relocation indistinguishable sites. from This the First issue Amendment alternative avenues of communication. ). is conceptually requirement of At this point, given the need for further proceedings on the adequacy question, it is premature to rule on the amortization question. Therefore, Defendant s motion for summary judgment on Count VIII will be denied. 51 IV. Conclusion For the foregoing reasons, the motion for a preliminary injunction and temporary restraining order filed by Plaintiffs Maages Auditorium; CD15CL2001, Inc., d/b/a Bazz and Crue and X4B Lounge; D2; situated and will John be Doe Jane denied. Doe, Defendant for all Prince those similarly George s County, Maryland s motion to dismiss Plaintiffs John Doe and Jane Doe will be granted. Defendant s motion to dismiss Count IV of Plaintiffs complaint will be granted. Defendant s motion for summary judgment on Counts I, II, III, V, and VI of Plaintiffs complaint will be granted. Defendant s motion for summary judgment on Counts VII and VIII of Plaintiffs complaint will be denied. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 52

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