2020c West Street, Incorporated, Plaintiff-appellant, v. Anne Arundel County of Maryland; Leroy Jonas, Director Ofdepartment of Inspections and Permits; Anne M.hatcher, License Administrator,department of Inspections Andpermits,defendants-appellees, 985 F.2d 554 (4th Cir. 1993)

OPINION

In this appeal, we review the propriety of the district court's abstention from entertaining an adult bookstore's action asking for a declaration that Anne Arundel County's licensing scheme for "adult film arcades" is unconstitutional. The principal issue is whether a state court action, amended to allege violations of a newly enacted ordinance after the filing of a federal action, constitutes an ongoing state proceeding sufficient to warrant abstention in the federal action under Younger v. Harris, 401 U.S. 37 (1971).

* The appellant, 2020C West Street, Inc. ("the bookstore"), has operated since 1983 in Anne Arundel County, Maryland, disseminating adult motion picture films, magazines, books, and videos to the public. The bookstore also offers sixteen private film-viewing machines for its customers' use. Although the county licensing scheme extant in 1983 required a "Class Y" amusement device license for each private film-viewing machine, the bookstore never obtained such licenses.¹  It did, however, obtain a zoning "certificate of use" for an "adult movie arcade and bookstore."² 

An understanding of the application of Younger principles to this case requires a brief review of the parties' preceding actions. Their dispute began in August 1991, when the county attorney notified the bookstore that it was in violation of the county's then-existing licensing scheme and ordered it to cease operation of its unlicensed filmviewing machines. A few days later, the county brought suit in the Circuit Court for Anne Arundel County to enjoin the bookstore's operation of its sixteen film-viewing machines. Two days after the county attorney filed this suit, the county suspended the applicable licensing regulations and placed a four-month moratorium on issuance of Class Y licenses.³  Thereupon, the bookstore filed suit in the United States District Court for the District of Maryland seeking to enjoin the state court action based on the suspended licensing scheme. The district court dismissed the federal complaint pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, and the bookstore did not appeal.

The bookstore then removed the pending state action to federal court. Although the action was removed, the district court granted the county's motion to remand and returned the case to state court on December 3, 1991. Meanwhile, in November 1991, Anne Arundel County repealed its suspended licensing scheme and enacted a new scheme.⁴  The new scheme comprehensively regulated the issuance of licenses to "adult film arcades"⁵  and specified numerous standards for an applicant to qualify for a license.

Thereafter, the bookstore again filed suit in federal court, this time under 42 U.S.C. § 1983,⁶  asking the district court to declare the county's new licensing scheme unconstitutional.⁷  A month later, the county amended its state court complaint to reflect the requirements of the new licensing scheme, which was the subject of the bookstore's § 1983 action in federal court.⁸  By Memorandum and Order dated February 19, 1992, the district court dismissed the federal suit under the Younger abstention doctrine. The bookstore appeals, and we affirm.

II

A state proceeding must meet three requirements for application of the Younger doctrine: (1) it must implicate an important state interest; (2) it must provide an adequate opportunity to raise constitutional issues; and (3) it must be "ongoing." Middlesex Ethics County Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). The first two requirements are here easily met.

Anne Arundel County's interest in restraining a violation of its criminal laws,⁹  Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05 (1975) (state has an important interest in enforcing civil laws that bear a close relationship to criminal proceedings),¹⁰  and its interest in the integrity of its licensing ordinances, see Sendlewski v. Town of Southhampton, 734 F. Supp. 586, 591 (E.D.N.Y. 1990) (municipality's right "to regulate land use and enforce its regulations through criminal and civil enforcement actions implicates important state interests"), satisfy the "important state interest" requirement for Younger abstention. The state interest is particularly important in regulations governing the "secondary effects" of adult entertainment. See Barnes v. Glen Theatre, Inc., 111 S. Ct. 2456, 2468-69 (1991) (Souter, J., concurring); City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 50 (1986).

The second requirement for Younger abstention-adequate opportunity for consideration of constitutional issues in the state judicial proceedings-is also readily satisfied. The bookstore's constitutional challenges to the Class Y licensing ordinance are essentially the same in the federal § 1983 action and the state action.

III

The third requirement for Younger abstention presents the major issue in this appeal-whether a state court complaint amended after the filing of a federal action qualifies as an "ongoing" state judicial proceeding. The bookstore contends that it does not. It argues that the state court complaint, amended on January 9, 1992 to reflect the county's newly enacted licensing scheme, resulted in a different cause of action and thus could not be considered an "ongoing" state proceeding on December 10, 1991, when the bookstore filed suit in federal court. Assuming but not deciding that the county's January 1992 amendment created a new cause of action for purposes of abstention analysis, we think Supreme Court precedent extends the concept of "ongoing" actions to encompass the circumstances of this case.

The determination of whether a proceeding is "ongoing" is normally fact-specific and, as we view the circumstances here, the district court properly concluded that the Maryland action was "ongoing." In Hicks v. Miranda, 422 U.S. 332 (1975), and Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), the Court explained that "ongoing" includes a state proceeding brought after a federal action, so long as "proceedings are begun [in state court] ... after the federal complaint is filed but before any proceedings of substance on the merits have taken place," Hicks, 422 U.S. at 349, or "the federal litigation was in an embryonic stage and no contested matter had been decided," Doran, 422 U.S. at 929. Here, the bookstore had simply filed its § 1983 complaint in federal court. There had been no further activity concerning it before the county amended its state court action. The filing of a complaint, without more, does not qualify as a proceeding of substance on the merits. Hicks, 422 U.S. at 349.

The judgment of the district court is therefore affirmed.

AFFIRMED.