5297 Pulaski Highway, Inc. v. Town of Perryville

GILBERT, Chief Judge. This is the first appeal this Court has encountered in which the validity of a zoning ordinance has been attacked on First Amendment grounds. The ordinance is alleged to violate the First Amendment’s mandate that “Congress shall make no law ... abridging the freedom of speech, or of the press----” Inasmuch as that amendment has been made applicable to the States through the Due Process Clause of the Fourteenth Amendment, it is now before us. Edward v. South Carolina, 372 U.S. 229 , 83 S.Ct. 680 , 9 L.Ed.2d 697 (1963); Young v. American Mini Theatres, 427 U.S. 50, 52 , 96 S.Ct. 2440, 2443 , 49 L.Ed.2d 310 (1976).

The Facts The Commissioners of the Town of Perryville enacted an amendment to the town’s zoning ordinance to provide: “Adult Bookstore/Adult Entertainment Center shall be restricted to C-2 zone only, provided that no such use may be permitted within 1,800 feet of the boundary of the property upon which sets any church, school, hospital, or other similar institution for human care.” Those two enterprises are permitted in C-2 zones if the applicant satisfies the town’s Board of Appeals with respect to thirteen hereinafter listed criteria. 5297 Pulaski Highway, Inc., operates Treasure Lingerie and Gift Shop, a retail store selling women’s lingerie and associated items. The shop, we are informed, is divided into two sections. In the forward part lingerie is displayed and sold. The back portion contains an assortment of “adult” books and magazines. 1 ⁵⁹³ Kay Smith 2 in July 1984 made application on behalf of 5297 corporation for a zoning occupancy permit to operate a “lingerie shop.” That application was filed approximately four months after the adoption of the ordinance involved in this appeal.

No mention of an “adult bookstore” appears anywhere in the application for the “lingerie shop.” The Town of Perryville filed a complaint in the Circuit Court for Cecil County in which the town sought an injunction against the selling at 5297 Pulaski Highway of anything “other than woman’s [sic] lingerie and associated woman’s [sic] clothing.” Among the defenses asserted by 5297 were that “[ordinance 84-1 of the Town of Perryville is on its face ... [violative] of ... the First and Fourteenth Amendments to the Constitution of the United States____” The chancellor thought and held otherwise. The trial court further determined that the books and magazines were obscene. As a result of the circuit court’s findings and holdings, the 5297 corporation was “enjoined from selling any items which are the subject of this suit other than women’s lingerie ... unless or until ... a conditional use permit [is obtained]____” In this Court 5297 asserts that the trial court erred in not holding the Perryville ordinance unconstitutional and in finding that the books and magazines were obscene. ⁵⁹⁴ Facial Constitutionality The circuit court held that Perryville Ordinance 84-1 was constitutional inasmuch as the Commissioners of the Town of Perryville articulated a reasoned and significant basis for the ordinance. We have not been directed to, nor have we found, any Maryland appellate decision addressing a challenge to a zoning ordinance on the ground that it violated the First and Fourteenth Amendments to the Constitution of the United States.

The Supreme Court and other federal court decisions provide us, however, with a plethora of authority. The most recent Supreme Court decision interpreting First Amendment mandates with respect to zoning ordinances is City of Renton v. Playtime Theatres, Inc., — U.S.-, 106 S.Ct. 925 , 89 L.Ed.2d 29 (1986). Renton was concerned with theatre owners who intended to exhibit adult films in violation of an ordinance which proscribed the location of adult motion picture theatres within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Playtime Theatres, the owner of two adult motion picture establishments, sought an injunction against enforcement of the ordinance.

Additionally, Playtime prayed that the Federal District Court declare the ordinance violative of the theatre’s First and Fourteenth Amendment rights. The Supreme Court upheld the ordinance as a valid governmental response to the serious problems created by adult theatres. In so holding, the Court relied substantially on its earlier decision in Young v. American Mini Theatres, Inc., 427 U.S. 50 , 96 S.Ct. 2440 , supra. Justice (now Chief Justice) Rehnquist, writing for the majority, stated in Renton that because the ordinance did not altogether ban adult theatres it was a valid “time, place and manner regulation,” rather than a restriction on the content of speech.

Speaking through Justice Rehnquist, the Court said, “[Cjontent-neutral time, place and manner regulations are acceptable so long as they are designed to ⁵⁹⁵ serve a substantial government interest and do not unreasonably limit alternative avenues of communication.” 106 S.Ct. 925 at 928 . The Renton City Council’s predominate concerns, the Court opined, were the secondary effects of adult theatres on the surrounding community, rather than the content of the films. The Court declared the ordinance a valid content-neutral time, place and manner regulation of protected speech. Similarly in Young v. American Mini Theatres, supra, the Court turned back a challenge to an ordinance that prohibited placing an adult movie theatre within 1,000 feet of any other two regulated uses including adult entertainment centers, liquor stores, and hotels.

Speaking through Justice Stevens, the Court held that Detroit’s efforts to avoid a concentration of adult-oriented theatres in a specified area, so as to prevent urban blight and crime, was a legitimate state interest. The ordinance in Young v. American Mini Theatres, like that in Renton, did not completely eliminate dissemination of sexually explicit materials. The concern of the Perryville Town Commissioners, in the case sub judice, is in the secondary effects that unregulated adult bookstores would have on the community, not the suppressing of speech embodied in the inventory of adult bookstores. The ordinance here under attack declares that it seeks to protect and “promote the public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity or general welfare.” The record contains minutes from community meetings during which the townspeople voiced their concern with problems that unregulated bookstores would create relative to safety, adequacy of public facilities, traffic, and the diminution of property values.

We think the record supports Perryville’s assertion that Ordinance 84-1 was designed to serve a substantial government interest. “[A town’s] interest in attempting to preserve the quality of urban life is one that must be accorded ⁵⁹⁶ high respect.” Young v. American Mini Theatres, 427 U.S. at 71 , 96 S.Ct. 2440 , 49 L.Ed.2d 310 . The majority of the Court in City of Renton, supra, said: “The First Amendment does not require a city, before enacting such an ordinance [as that of Perryville] 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.” 106 S.Ct. 925 at 931 (emphasis added). The Renton Court concluded that the city had not used “the power to zone as a pretext for suppressing expression” and that, instead, the city had sought to make some areas available for adult theatres and their patrons, while at the same time preserving the quality of life in the community at large by preventing those theatres from locating in other areas. Id. at 932 .

The record does not reflect that Perryville enacted Ordinance 84-1 as a pretext to suppression of protected expression. Rather in the interest of preserving the general welfare of the community, the town established a procedure whereby adult bookstores are permitted as conditional uses in certain areas. Cities are free to regulate adult theatres and bookstores by either dispersing them or concentrating them in a particular area. City of Renton v. Playtime Theatres, Inc., 106 S.Ct. 925 at 931 .

The town “must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.” 106 S.Ct. 925 , citing American Mini Theatres, supra, 427 U.S. at 71 , 96 S.Ct. 2440 , 49 L.Ed.2d 310 (plurality opinion). The record before us in the instant case indicates clearly that Perryville Ordinance 84-1 was enacted “in response to the ... growth in the number of ... establishments” selling adult books and magazines. The ordinance does not, as we have said, ban adult book stores. It confines their operation to certain proscribed zones and, to avoid a proliferation of those establishments with a resulting possible deleteri ⁵⁹⁷ ous effect on the area, mandates they be a conditional use, i.e., one for which permission to operate may only be conferred if specified criteria are satisfied.

Perryville Ordinance No. 84-1 is facially predicated upon a fundamental governmental interest in protecting the general welfare of the community. Adult bookstores are regulated, not proscribed. The ordinance was not directed toward the suppression of speech. Overbreadth and Vagueness The Perryville Zoning Ordinance § 7A, “Conditional Uses,” provides in pertinent part: “No conditional use shall be authorized unless the Board finds in each specific case that the establishment, maintenance, or operation of the conditional use from the evidence produced at the public hearing meets the standards set forth in this section.

The applicant for a conditional use shall have the burden of proof, which shall include the burden of going forward with the evidence and the burden of persuasion on all questions of fact which are to be determined by the Board. As a further guide to the Board’s decision upon the facts of each case, they shall give consideration to the follow ing, where appropriate: 1. The nature of the proposed site, including its size and shape and the proposed size, shape, and arrangement of structures 2. Traffic conditions including the resulting traffic patterns 3.

The nature of the surrounding area and the extent to which the proposed use might impair its present and future development 4. The proximity of dwellings, churches, schools, public structures, and other places of public gatherings 5. The probable effect of the proposed use upon the peaceful enjoyment of people in their homes ⁵⁹⁸ 6. Facilities for sewers, water, schools, transportation, and other services, and the ability of the County to supply such services 7.

The limitations of fire-fighting and rescue equipment, and the means of access for fire and police protection 8. The preservation of cultural and historic landmarks and trees 9. The probable effect of noise, vibration, smoke and particulate matter, toxic matter, odorous matter, fire and explosion hazards, or glare upon the uses of surrounding properties 10. The purpose and intent of this Ordinance as set forth in its other sections 11.

The most appropriate use of land and structure 12. The conservation of property values 13. The contribution, if any, such proposed use, building or addition would make toward the deterioration of areas and neighborhoods.” The trial court, relying in part on 15192 Thirteen Mile Road v. City of Warren, 593 F.Supp. 147 (1984), 3 held that the Perryville ordinance did not confer unbridled discretion upon the Board of Zoning Appeals. 15192 Thirteen Mile Road v. City of Warren was a case somewhat similar to that before us. There, a federal district court upheld a City of Warren zoning ordinance as generally constitutional but struck a section of the ordinance which required that adult bookstores apply for a conditional use permit.

The application procedures, the district court said, left an improper degree of discretion in the local officials. The court reasoned that the lack of time limits in which the City Planning Commission and the Board of Zoning Appeals had to make a decision, together with the ⁵⁹⁹ indefinite general standards guiding the Commission and the Board, made the ordinance too broad. The lack of definitions raised the possibility that local officials could effectively prohibit any adult entertainment facility by simply holding the case sub curia indefinitely. In short, the Commission or Board of Appeals could thwart the process by not deciding the matter. “For there to be an effective permit requirement, a municipality must provide narrowly drawn, objective, reasonable, and definite standards to guide the administering officials.” 593 F.Supp. at 156 .

The Perryville ordinance does provide the definite objective guidelines which the zoning officials must apply when determining whether to grant the conditional use. The ordinance requires that the Board of Appeals “shall decide the appeal within fifteen (15) days from the time of hearing.” 4 Additionally, the ordinance articulates thirteen criteria as guidelines for the board. Section 10(2) of the Perryville zoning ordinance establishes further guidelines with respect to procedural protections such as notice and a right to be heard on the issue of conditional use. We think ⁶⁰⁰ the guidelines in the Perryville ordinance are sufficient in number and definitiveness to overcome the district court’s concern in 15192 Thirteen Mile Road 5 In § 19B of the Perryville zoning ordinance, “Adult Bookstore/Adult Entertainment Center” is defined as: “An establishment, the principal use of which is to offer for sale or viewing books, magazines, printed material, films, tapes, peep shows and live acts which depict, describe or relate to ‘Specified Sexual Activities’ or “Specified Anatomical Areas” (as defined below) or an establishment with a segment or section devoted to the sale or display of such material.”, According to the ordinance “Specified Sexual Activities” are: “(1) Human Genitals in a state of sexual stimulation or arousal; (2) Acts of human masturbation, sexual intercourse or sodomy; (3) Fondling or other erotic touching of human genitals, pubic region, buttock or female breast.” “Specified Anatomical Areas” mean: “(1) Less than completely and opaquely covered: (a) human genitals, pubic region, (b) buttock, and (c) female breast below a point immediately above the top of the areola; and (2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.” 6 The definitions employed by