Annapolis Road, Ltd. v. Anne Arundel County

ALAN M. WILNER, Judge, Specially Assigned. We have before us three appeals testing the validity of (1) an Anne Arundel County ordinance seeking to regulate the location and operation of adult bookstores, film arcades, and motion picture theaters, and (2) an injunction issued by the Circuit Court for Anne Arundel County enforcing that ordinance. I. BACKGROUND For several years, appellant Annapolis Road, Ltd. (ARL) operated an adult bookstore on property owned by appellants Jack and Brindel Gresser at 1656 Annapolis Road in Anne ¹⁰⁸ Arundel County. It sold books, magazines, and videos containing explicit sexual material.

It also operated at that location what are sometimes referred to as “peep shows”— private booths containing coin-operated video machines that display similar kinds of material. The battle between ARL and the county over the operation of ARL’s business extends back at least to 1984. In May of that year, a county detective seized a number of books and magazines from the store that were found to be obscene. ARL was later convicted in criminal court of unlawfully displaying those items.

At some point, the county enacted an ordinance requiring “peep shows” of the type operated by ARL to have a Class Y license. That ordinance is not now before us, but it appears that some question arose as to whether it was sufficiently specific to pass Constitutional muster. On July 15, 1991, the County Council enacted a second ordinance (Bill No. 68-91) imposing a moratorium on the issuance of Class Y licenses until better standards could be developed. The moratorium took effect August 7, 1991.

On July 29, county officials inspected the bookstore and found a number of peep show machines that were not covered by Class Y licenses. ARL closed the business and submitted applications for the required licenses. In light of the moratorium, however, the county took no immediate action on the applications. That led to a lawsuit by ARL in U.S. District Court challenging the moratorium.

On November 21, 1991, the County Council enacted Bill No. 98-91, purporting to deal in a more specific and comprehensive way with the operation of adult bookstores and adult theaters. The enactment of that ordinance, which repealed the existing law governing Class Y licenses and set forth revised procedures for the issuance of those licenses, thus made ARL’s challenge to the moratorium. and the earlier ordinance moot. The Federal court dismissed the pending action, along with claims that the moratorium itself constituted a violation of ARL’s rights under 42 U.S.C. § 1983 . That dismissal was affirmed by the U.S. Court of Appeals for the ¹⁰⁹ Fourth Circuit.

Annapolis Road, Limited v. Hagner (No. 91-1205, 1992 WL 120209 , Unpublished Opinion filed June 2, 1992). In a preamble to Bill No. 98-91, the County Council declared its finding, based on evidence presented to it, that sexually oriented businesses have a harmful effect on the area in which they are located and contribute to neighborhood blight and that they therefore require regulation in order to protect neighborhoods from nuisance and deterioration. That regulation, as set forth in the ordinance, took two forms. One form was reenactment of the requirement, through the addition of new sections 2-1101 through 2-1113 to art. 16 of the County Code, that “adult film arcades” have a Class Y license in order to operate.

The ordinance defined the term “adult film arcade” as a place containing one or more display devices that, for commercial entertainment or amusement purposes, show images depicting sadomasochistic abuse, sexual conduct, or sexual excitement. The ordinance set forth procedures and conditions for applying for the license as well as substantive requirements with respect to the operation of an adult film arcade. Operation of an adult film arcade without a Class Y license was made a misdemeanor and was also subject to injunction. The second form of regulation, which itself was in two parts, was effected through additions to the county zoning laws contained in art. 28 of the County Code.

The first aspect of the zoning regulation was the requirement of a special zoning certificate of use for adult bookstores and adult motion picture theaters. Art. 28, § l-128(a) already contained a general requirement that no premises or structure, other than a single-family residence, could be used or altered until a zoning certificate of use was issued by the Office of Planning and Zoning. The 1991 ordinance added a new provision, § 1-128(e), requiring a zoning certificate of use specifically for an ¹¹⁰ “adult bookstore” and an “adult motion picture theater,” both of which terms were defined elsewhere in the ordinance. 1 Adult film arcades were included within the definition of “adult motion picture theater.” The obtention of the special zoning certificate of use was made a prerequisite to obtaining a Class Y license; a copy of the certificate had to be included with the application for the license. The second aspect of the zoning regulation was to exclude adult bookstores and adult motion picture theaters entirely from the C1 (Local Retail), C2 (Commercial Office), and C3 (General Commercial) zones, exclude adult motion picture theaters as a permitted use in the C4 (Highway Commercial) zone, and restrict those operations as conditional uses in the C4 and W3 (Heavy Industrial) districts. 2 Five conditions were imposed on the location of those operations in the C4 and W3 districts, namely: (1) they had to be at least 1,000 feet from the boundary line of any dwelling, library, park, school, playground, child care center,' church or other place of worship, or other adult bookstore or adult motion picture theater; ¹¹¹ (2) all windows, doors, and other apertures had to be blackened or obstructed to prevent persons on the outside from viewing the interior; (3) the proprietor, owner, and employees were required to prohibit access by anyone under 18 years of age; (4) if the business was an adult motion picture theater, it was not to be used for the display of obscene films or other performances; and (5) if it was an adult motion picture theater, it had to have the off-street parking required for theaters generally.

Any existing adult bookstore or adult motion picture theater that would not be in compliance with the new requirements was allowed to continue as a nonconforming use for one year after notice from the Office of Planning and Zoning. By Bill No. 101-92, enacted and signed into law on December 8, 1992, that period was reduced to six months. ARL chose not to apply for the newly authorized Class Y license but instead reopened its store without a license. On December 4, 1992, after discovering that the business had been reopened, the county filed suit against ARL, contending that it was operating an adult film arcade without a Class Y license.

It asked that the operation be enjoined until the license was obtained. The court entered an ex parte injunction, followed, on December 18, 1992, by an interlocutory injunction, restraining ARL and its employee from operating an adult film arcade during the pendency of the litigation. That action has resulted in Appeal No. 460. In June, 1993, ARL filed an action against the county for declaratory and injunctive relief.

It acknowledged that its business involved the display, sale, and rental of books, magazines, and videotapes, a portion of which included themes of a sexual nature, although it denied that any of those materials contain descriptions or depictions of sadomasochistic abuse, sexual conduct, or sexual excitement. ARL averred that its operation was in a C3 zone, that its attempts to obtain a Class Y license had been “thwarted by the actions of the County and ¹¹² the Department of Inspection and Permits,” that it had attempted to register the operation as a lawful nonconforming use but was informed that the nonconforming use must cease on June 16, 1993, that the county had notified every owner of land on which adult businesses are operated that those operations must cease, that the licensing and zoning schemes embodied in the ordinance “leaves no existing adult businesses in Anne Arundel County,” and that there was no factual basis for such a regulation. In light of its allegation that none of the materials it displayed contained descriptions or depictions of sadomasochistic abuse or sexual conduct or excitement, ARL asked for a declaratory judgment that it was not subject to Ordinances 98-91 and 101-92. To the extent it was subject to those ordinances, it asked for a declaratory judgment that they were “unconstitutional” for a variety of reasons.

ARL claimed that the ordinances were invalid because they were impermissibly enacted as emergency legislation and involved more than one subject matter, presumably in contravention of the County Charter. It also averred that they were unconstitutional because (1) they sought to regulate by licensing and zoning requirements conduct subject to criminal penalties, (2) the Class Y licensing fee of $2,500 or $300 for each display device imposed a content-based fee unrelated to the proven cost necessary to regulate the activity, (3) the ordinances constituted an unlawful prior restraint on protected speech with insufficient guidelines to govern the issuance of a zoning certificate of use for adult businesses, (4) they sought to regulate the configuration, lighting, and content of adult film arcades without any basis or reason, (5) they failed to allow for reasonable alternative avenues of communication, (6) they did not further any specific governmental interest, and (7) they were not narrowly tailored to affect only the articulated unwanted secondary effects of adult businesses and thus contained greater restrictions than were necessary to achieve the desired results. As ancillary relief, ARL asked for an injunction to restrain county officials from taking any action to enforce the ordi ¹¹³ nances against its business. That case has produced Appeal No. 462.

On August 5, 1993, the county filed the third of the three actions, against the Gressers. The county averred that the Gressers were allowing their property, located in a C3 zone, to be used as an adult bookstore and adult motion picture theater, which uses are limited to C4 and W3 zones as conditional uses. The ability of the Gressers to continue those uses as lawful nonconforming ones expired, said the county, on June 16, 1993, and it therefore asked that the Gressers be enjoined from using the property for any use not allowed in a C3 zone, and specifically as an adult bookstore or adult motion picture theater. That action has produced Appeal No. 461.

On August 12, 1993, the court granted an interlocutory injunction in the second case (No. 462), restraining the county from taking any action to compel ARL to cease operation of its business, pending the action and subject to further order of the court. In October, the court consolidated Cases 2 and 3 (Nos. 462 and 461). The first action (No. 460), in which the court had enjoined ARL from operating an adult film arcade without a Class Y license, proceeded for a time on its own. On November 3, 1993, this Court affirmed the interlocutory injunction issued in Appeal No. 460, finding no merit in ARL’s seven claims of unconstitutionality and charter violations.

The Court of Appeals denied ARL’s petition for certiorari on March 10, 1994; subsequently, the U.S. Supreme Court also denied certiorari. In December, 1994, the county enacted yet another ordinance (Bill No. 39-94), which amended § 1-101 of art. 28 to exclude a commercial establishment from the definition of “adult bookstore” if less than 20% of its merchandise on display consists of the books, magazines, devices, or other material specified in the definition or less than 20% of its usable floor area is used for the display of those items. At some point thereafter, No. 460 was consolidated with the other two cases, and all three were heard in the circuit court on cross motions for summary judgment. In light of the 1994 ordinance and the fact that less than 20% of ARL’s stock ¹¹⁴ consisted of the specified items, the county urged that the operation no longer qualified as an adult bookstore and that those aspects of the cases concerning the operation of an adult bookstore were therefore moot.

On June 7, 1995, the court filed an opinion and order granting the county’s motion for summary judgment and ordering that ARL and the Gressers immediately cease the operation of an adult film arcade at the Annapolis Road location. The court noted the county’s concession that ARL no longer qualified as an adult bookstore and that its. zoning enforcement action was therefore moot, at least as to the bookstore, but decided to address the validity of the zoning provisions anyway. In fact, that is the only aspect of the dispute that the court did address in its opinion; it said very little about the licensing provisions. Nonetheless, the court concluded its opinion with a finding that the entire ordinance was valid and, in its order, directed that appellants immediately cease the operation of the adult film arcade.

The court issued no specific ruling regarding the bookstore operation. The court relied principally on Renton v. Playtime Theatres, Inc., 475 U.S. 41 , 106 S.Ct. 925 , 89 L.Ed.2d 29 (1986), and attempted to follow the analysis used in that case. It noted first that the ordinances did not ban adult bookstores or motion picture theaters entirely but “merely limit the location of adult bookstores and adult film arcades____” The court observed that, under Renton , those types of time, place, and manner restrictions on otherwise protected speech were valid so long as they were content-neutral, designed to serve a substantial government interest, and did not unreasonably limit alternative avenues of communication. Analyzing the ordinance under those standards, the court held the ordinance to be content-neutral in that it was designed to protect communities from the harmful secondary effects of sexually oriented businesses rather than to suppress the content of the speech being disseminated from those businesses.

That goal, it held, constituted a substantial government interest. Finally, crediting uncontradicted evidence supplied by the county, the court found that there were 81 ¹¹⁵ sites, comprising 2,300 acres, in the county that were suitable for adult bookstores or film arcades and that, accordingly, there were reasonable alternative avenues of communication. In that last regard, the court rejected ARL’s undocumented argument that some of those sites were unsuitable because of their particular physical characteristics, such as the lack of utilities or access by public road. Just shy of a month after the filing of the court’s opinion and order, the U.S. Court of Appeals for the Fourth Circuit filed en banc opinions declaring parts of adult bookstore ordinances adopted in Harford and Prince George’s Counties invalid. 11126 Baltimore v. Prince George’s County, Md., 58 F.3d 988 (4th Cir.1995); Chesapeake B & M, Inc. v. Harford County, Md., 58 F.3d 1005 (4th Cir.1995).

On the basis of those rulings, ARL and the Gressers filed a motion with the circuit court to alter or amend its judgment. The court denied the motion without comment, and these appeals ensued.

II

THE ISSUES Notwithstanding that the court’s injunction is expressly limited to the adult film arcade operation and appears to be based entirely on the fact that that operation does not have the benefit of a Class Y license, in light of the court’s opinion, which, as, noted, sustained the zoning ordinance as well, appellants press their attack on both the zoning and the licensing provisions of the ordinances. In No. 460, they urge that the licensing provisions of Bill No. 98-91, as since amended, are unconstitutional, both facially and as applied, in that they “fail to specifically contain reasonable and permissible specific guidelines for [the licensing authority].” In Nos. 461 and 462, they attack both the licensing and the zoning provisions, arguing that they operate as “an unconstitutional prior restraint of prior speech” and that the court erred in holding that the ordinance provides reasonable alternative avenues of communication. The county, having had the opportunity to reflect upon the recent decisions of the Fourth Circuit Court of Appeals, now ¹¹⁶ concedes that “the licensing requirement for adult film arcades codified as Article 16, §§ 2-1101 through 2-1113 of the County Code, and the requirement for a special zoning certificate of use for adult film arcades codified at Article 28, § 1-128(e), both enacted by Bill No. 98-91, are unenforceable____” Responding to appellants’ attack on the other zoning provisions, however, it sees these appeals as presenting six issues, which, for clarity, we have combined and rephrased as follows: (1) Is the restriction of ádult bookstores and adult motion picture theaters to certain locations severable from any unconstitutional provisions of the ordinance; (2) Do appellants lack standing to pursue a facial challenge to the general requirement of art. 28, § l-128(a) that businesses obtain a zoning certificate of use; (3) Does that general requirement constitute an unconstitutional prior restraint on protected speech; and (4) Does the classification of adult bookstores and adult motion picture theaters as conditional uses in the C4 and W3 zones, coupled with the conditions attached, constitute an unconstitutional prior restraint on protected speech? We think that all of the issues, raised by appellants and the county, are before us, and we shall decide them all.

For reasons later explained, we need to address and resolve the validity of the licensing provisions despite the county’s belated concession. We shall conclude that they are invalid. That leaves the remaining issues of whether the other provisions (1) are valid and, (2) if valid, can be severed from the licensing provisions and thus be saved. The county does not contest appellants’ standing to challenge the locational requirements, but, as noted, it does oppose their standing to mount a facial challenge to the general zoning certificate of use requirement of § l-128(a).

III

DISCUSSION A. The Applicable Standards Although there are many cases discussing and delineating the standards and conditions under which protected speech ¹¹⁷ may be regulated, we need focus on just a few, for they provide the guidance we need. We start with Young v. American Mini Theatres, 427 U.S. 50 , 96 S.Ct. 2440 , 49 L.Ed.2d 310 , reh’g denied, 429 U.S. 873 , 97 S.Ct. 191 , 50 L.Ed.2d 155 (1976). At issue there was a Detroit ordinance defining certain “regulated uses” and precluding the location of an “adult theater,” which was also a defined term, within 1,000 feet of a regulated use or within 500 feet of a residential area. The intent of the ordinance was to disperse those kinds of theaters rather than have them congregated in various neighborhoods.

The ordinance was challenged on a number of grounds, including the assertion that it imposed a prior restraint on protected speech. In a 5-4 decision, the Court sustained the ordinance. 3 The Court noted that the ordinance did not limit the total number of adult theaters or deny such theaters access to the market but simply required that adult films be shown only in licensed theaters and imposed locational requirements on adult theaters that were not applicable to other theaters. Neither of those restrictions, it held, were invalid. In the First Amendment context, the Court declared that “[t]he mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing require ¹¹⁸ ments is not a sufficient reason for invalidating these ordinances” and that “the 1,000-foot restriction does not, in itself, ■ create an impermissible restraint on protected communication.” Id. at 62 , 96 S.Ct. at 2448 .

The distinction drawn between adult and other theaters was examined in Justice Stevens’s plurality opinion in a Fourteenth Amendment equal protection context, but, whether in that context or, as Justice Powell urged in Ms concurring opimon, in a purely First Amendment context, the Court found no violation. Although the communication of sexually explicit material may not be entirely suppressed, the plurality concluded that (1) the content of that material may be used as the basis for placing it in a different classification from other motion pictures, and (2) the particular regulation — disallowing the aggregation of such uses witMn neighborhoods — was permissible. In the latter regard, the Court stated, at 71, 96 S.Ct. at 2453 : “It is not our function to appraise the wisdom of [the City’s] decision to require adult theaters to be separated rather than concentrated in the same areas. In either event, the city’s interest in attempting to preserve the quality of urban life is one that must be accorded Mgh respect.” Ten years later, in Renton v. Playtime Theatres, Inc., 475 U.S. 41 , 106 S.Ct. 925 , 89 L.Ed.2d 29 , reh’g denied, 475 U.S. 1132 , 106 S.Ct. 1663 , 90 L.Ed.2d 205 (1986), the Court revisited the use of zomng laws to regulate adult theaters.

The City of Renton had enacted an ordinance defining adult motion picture theaters and prohibiting their location within 1,000 feet of any residential zone, single or multi-family dwelling, church, park, or school. There were no such theaters in Renton at the time it passed the ordinance. Rather, enactment of the law was based on experiences in other cities and was regarded as prophylactic in nature — to avoid the perceived deleterious effects from the placement of such theaters in proximity to the enumerated uses. The Court examined the ordinance as a time, place, and manner regulation wMch, though obviously treating adult the ¹¹⁹ aters differently than other theaters and therefore not entirely content-neutral, was nonetheless aimed not at the content of any particular films but at the secondary effects of adult theaters on the surrounding neighborhoods.

The appropriate inquiry, the Court said, was whether the ordinance was “designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication.” Id. at 50, 106 S.Ct. at 930. Both of those tests were held to be satisfied. The effort to preserve the quality of urban life was an important governmental interest, which, whether implemented by an attempt to disperse or to congregate purveyors of sexual excitement, was entitled to judicial respect. As to the alternative means of communication, the Court noted that the ordinance left some 520 acres of land — about 5% of the area of the city — open to use for adult theaters.

It then addressed and rejected the complaint that some of that land was already occupied by existing businesses, that practically none of the undeveloped land was currently for sale or lease, and that “in general there are no ‘commercially viable’ adult theater sites within the 520 acres left open by the Renton ordinance.” Id. at 53, 106 S.Ct. at 932. The Court observed “[t]hat respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation.” Id. at 54, 106 S.Ct. at 932. Although the Court had, in the past, cautioned against the enactment of zoning regulations that have the effect of suppressing or greatly restricting access to lawful speech, it noted that it had “never suggested that the First Amendment compels the Government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices.” Id. The essence of the Court’s holding was stated in the concluding paragraph of the opinion, at 54-55, 106 S.Ct. at 932: “In sum, we find that the Renton ordinance represents a valid governmental response to the ‘admittedly serious problems’ created by adult theaters....

Renton has not used ‘the power to zone as a pretext for suppressing expres ¹²⁰ sion’ ... but rather has sought to make some areas available for adult theaters and their patrons, while at the same time preserving the quality of life in the community at large by preventing those theaters from locating in other areas. This, after all, is the essence of zoning.” Young and Renton involved attempts to control the pernicious secondary effects of sexually oriented businesses through reasonable zoning regulations. In FW/PBS, Inc. v. Dallas, 493 U.S. 215 , 110 S.Ct. 596 , 107 L.Ed.2d 603 (1990), the Court had before it a more comprehensive scheme of regulation, involving a combination of zoning, licensing, and inspections, although it addressed only the licensing and inspection provisions. In particular, its inquiry was limited to whether the licensing provisions of the Dallas ordinance amounted to an unconstitutional prior restraint that failed to provide adequate procedural safeguards required by Freedman v. Maryland, 380 U.S. 51 , 85 S.Ct. 734 , 13 L.Ed.2d 649 (1965).

Freedman involved a challenge to the then-existing Maryland law prohibiting the sale, lease, or exhibition of motion picture films that had not been approved and licensed by the State Board of Censors. That law obviously operated as a prior restraint on protected speech, and the Court held that it could pass Constitutional muster only if it was accompanied by procedural safeguards designed to obviate the dangers of a censorship system. Three necessary safeguards were identified: (1) the burden of proving that the film constituted an unprotected expression had to rest with the censor; (2) there had to be judicial review of a decision to censor and the period of restraint imposed in advance of a final judicial determination had to be limited to preserving the status quo for the shortest fixed period compatible with sound judicial resolution; and (3) the procedure must “assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.” Id. at 59 , 85 S.Ct. at 739 . ¹²¹ The full text of the Dallas licensing scheme was not set forth in any of the five opinions filed in FW/PBS: 4 It appears that certain defined “sexually oriented businesses,” including adult arcades, adult bookstores and video stores, adult cabarets, adult motels, adult theaters and motion picture theaters, escort agencies, nude model studios, and “sexual encounter centers” required a license either issued or approved for issuance by the chief of police. Persons who had been recently convicted of any of certain enumerated crimes, or whose spouse had been recently convicted of any of those crimes, or who resided with a person who had been denied a license or had a license revoked within the past 12 months were declared ineligible for a license.

Although the ordinance required the police chief to approve the issuance of a license within 30 days after receipt of an application, it also stated that a license could not be issued to a sexually oriented business unless the business had been approved by the health department, fire department, and building official as being in compliance with applicable laws, and no ¹²² time limit was set for those approvals. Unlike the situation with respect to other businesses, the law required that sexually oriented businesses be inspected whenever there was a change in ownership and when the business applied for an annual renewal of its license, and no time limit was set for those inspections. Nor, according to the Court, did the ordinance provide for prompt judicial review of administrative decisions. The record revealed that none of the individuals challenging the ordinance would have been disqualified from receiving a license by virtue of their own criminal background, that of their spouses, or because of their choice of housemates.

They raised a facial challenge to the licensing scheme. The Court noted that facial challenges to legislation are permitted in a First Amendment context “where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as overbroad” and that, under Freedman , the failure to place time limitations on this kind of administrative decision-making “is a species of unbridled discretion.” Id. at 223, 110 S.Ct. at 603 . Upon that analysis, the Court allowed the facial challenge. Those two deficiencies — the placing of unbridled discretion in the hands of administrative officials and the failure to place limits on the time within which the decisionmaker must issue a license — were also regarded as having substantive significance, as they constituted an impermissible prior restraint when applied to protected speech.

Because the Dallas ordinance failed to place any limits on the time within which the city would inspect the business and thereby make it eligible for the license, it allowed “indefinite postponement of the issuance of a license.” Id. at 227 , 110 S.Ct. at 606 . That deficiency, coupled with the lack of “an avenue for prompt judicial review so as to minimize suppression of the speech in the event of a license denial” rendered the licensing requirement unconstitutional insofar as it applied to businesses engaged in First Amendment activity. Id. at 229 , 110 S.Ct. at ¹²³ 606. 5 The standards enunciated in these cases, in both the zoning and licensing contexts, were applied in the two Fourth Circuit cases. 11126 Baltimore, supra, 58 F.3d 988 , involved a challenge to provisions of the Prince George’s County zoning ordinance that precluded adult bookstores from operating anywhere in the county except through the grant of a special exception and satisfaction of certain other requirements. The operational requirements were similar to those imposed in the Anne Arundel County law under review here — that the store darken its windows and other apertures to prevent visual access from the outside, that it prohibit access by persons under age 18, and that it