Landover Books, Inc. v. Prince George's County

ROSALYN B. BELL, Judge. Landover Books, Inc. (Landover), appellant, the operator of an adult bookstore located in Lanham, Maryland, appeals from an order of the Circuit Court for Prince George’s County, ordering Landover to cease further business activity. Landover contends that the adult bookstore zoning regulations requiring them to close are unconstitutional. The issues raised in this appeal are: — Whether proper notice of a zoning violation was provided to Landover. ⁵⁸ — Whether documents and affidavits, not part of the Board of Zoning Appeals’ record, were properly considered by the trial court. — Whether the trial court had jurisdiction to issue an injunction without first giving Landover an opportunity to be heard. — Whether the Prince George’s County zoning ordinance, as it applies to Landover, constitutes an unconstitutional prior restraint.

We affirm the trial court and explain, after first setting forth the pertinent facts. We begin with the legislative history of the subject regulations. We will then deal with the procedural issues and deal last with the constitutional issue. THE ZONING LEGISLATION In November of 1975, the Prince George’s County Council, sitting as a District Council, 1 approved a zoning bill governing adult bookstores.

Council Bill 156-1975, enacted November 18, 1975, set forth locational and operational requirements which, inter alia, limited the location of adult bookstores to specified commercial zones, prohibited adult bookstores from locating within 1,000 feet of any school building or 500 feet from any church, and required the adult bookstores to obtain a special exception permit in order to operate. An adult bookstore is defined in § 1 of the 1975 bill as: “Any commercial establishment that has twenty-five percent (25%) or more of its stock in books, periodicals, photographs, drawings, sculpture, motion pictures, films or other visual representations which depict sadomasochistic abuse, sexual conduct or sexual excitement as defined by Article 27 Section 416A of the Annotated Code ⁵⁹ of Maryland and does not otherwise qualify as a theatre or nonprofit free lending library.” The bill further provided at § 6 that, “[i]n order to prevent the impairment of, or detriment to, neighboring properties, including existing or potential land uses in the neighborhood and in order to protect children who may be attracted to such establishments,” adult bookstores were required to blacken or otherwise obstruct windows, doors and other apertures so as to prevent the viewing of the interior of the establishment from without, to limit advertising or outdoor displays to one business sign, and to prohibit access to any person under the age of 18 years. In April of 1976, the locational restrictions were amended in Council Bill 10-1976 to increase from 500 feet to 1,000 feet the distance an adult bookstore must be placed from a church or similar place of worship. The zoning ordinance was amended again in 1980 by Council Bill 116-1980.

Section 1 of the amendment redefined adult bookstores by reducing from 25 percent to 5 percent the percentage of material depicting sadomasochistic abuse, sexual conduct or sexual excitement which a store could carry to avoid classification as an adult bookstore. The amendment also added an amortization provision which allowed all nonconforming bookstores to continue in operation until July 1, 1985. After that date, an adult bookstore could only continue in operation if it obtained a special exception, a process which will be discussed later. 2 ⁶¹ LANDOVER Landover operates an adult bookstore at 7411 Annapolis Road in Lanham, Maryland. In April of 1981, Landover was granted a Use and Occupancy Permit to operate an adult bookstore as a nonconforming use.

As a result of the changes in the zoning ordinance, an advisory letter explaining the provisions of Council Bill 116-1980 was hand delivered to Landover’s place of business on June 14, 1985. The letter was accepted by an employee of Landover. The letter instructed Landover that, if it intended to continue to operate an adult bookstore, it must apply for a special exception by July 1, 1985. On July 2, 1985, an inspection of Landover’s premises revealed the continued operation of an adult bookstore without a special exception permit.

Subsequently, a zoning violation notice was sent to Robert G. Carr, Landover’s resident agent, by certified mail, return receipt requested, requiring Landover to cease operations as an adult bookstore by August 15,1985 or obtain a special exception. A signed receipt was received by the Department of Environmental Resources, but apparently someone other than Carr signed for it, an issue to be discussed later. Landover filed a notice of appeal from the zoning violation notice to the Board of Zoning Appeals for Prince George’s County (Board) on August 15, 1985. A hearing was scheduled and when Landover failed to appear, the Board dismissed the case.

Landover’s petition for a new hearing date was denied by the Board. Landover appealed the denial of the petition to the Circuit Court for Prince ⁶² George’s County which remanded the case to the Board for a hearing. On February 25, 1987, the Board conducted a hearing on the appeal of the zoning violation notice. The Board issued a decision on March 12, 1987, denying Landover’s appeal of the violation and its request for extension of the grace period for filing for a special exception.

The Board’s decision was appealed by Landover to the Circuit Court for Prince George’s County. Prior to the hearing of the appeal, Prince George’s County (County), appellee, filed additional evidence consisting of affidavits and documents supporting the 1975, 1976 and 1980 aforementioned Council Bills. Landover filed a motion to strike the documents but it was denied on March 3, 1988, the same day oral arguments were heard on the merits of the appeal. On March 23,1988, the trial court affirmed the Board’s decision and enjoined Landover from conducting its business unless a special exception application was filed by April 5, 1988.

It is from this decision that Landover appeals. We must first determine whether Landover has exhausted its administrative remedies. EXHAUSTION OF ADMINISTRATIVE REMEDIES At first glance, it would appear that Landover did not exhaust its prescribed administrative remedies since it did not apply for a special exception and have its application rejected. Ordinarily, where a remedy is provided, a litigant must adopt that form and must not bypass an administrative body by pursuing other remedies.

Prince George’s County v. Blumberg, 288 Md. 275, 284 , 418 A.2d 1155 (1980), cert. denied, 449 U.S. 1083 , 101 S.Ct. 869 , 66 L.Ed.2d 808 (1981). Here, Landover sought to bypass the special exception application process by attacking the constitutionality of the ordinance instead of applying for a special exception. Under Blumberg , a constitutional attack upon the validity of a general statutory enactment as a whole, as contrasted with the ordinance’s application to a particular situation, falls within an exception to the administrative ⁶³ agency exhaustion rule. Blumberg, 288 Md. at 284-85 , 418 A.2d 1155 .

The circumstances in the instant case fit this exception. Here, Landover attacked the ordinance as vague and an unlawful delegation because it provided no definite standards for the Council in issuing special exceptions. One who is subjected to a licensing statute which allegedly vests unbridled discretion in a government official over whether to permit or deny an activity which falls within the scope of First Amendment protection, may challenge the ordinance facially without the necessity of first applying for and being denied a license, or as in this case, a special exception. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755 , 108 S.Ct. 2138, 2143 , 100 L.Ed.2d 771 (1988).

See also Schneider v. Pullen, 198 Md. 64, 69 , 81 A.2d 226 (1951). Accordingly, Landover’s failure to apply for a special exception does not preclude it from attacking the ordinance as unconstitutional. NOTICE Landover contends that service was not made in accordance with the zoning ordinance; hence, service was not proper. Section 27-264(b)(l) of the Prince George’s Zoning Ordinance provides: “When it determines that a violation of this Subtitle has occurred with respect to the use of any building, structure, or land, or there is a failure to obtain a use and occupancy permit, the Department shall serve a notice (on the form provided) upon the owner, general agent, or lessee of the building, structure, or land, directing that the violation stop.” The record reveals that a zoning violation was sent to Landover’s place of business by certified mail addressed to Robert G. Carr, Landover’s resident agent.

A signed receipt of the notice was received by the Department of Environmental Resources. The receipt, however, was signed by someone other than Carr, presumably an employ ⁶⁴ ee of Landover. Landover argues that, since Carr was not served with the violation, service was not in accordance with the ordinance. Landover raises the question of a technical irregularity regarding the adequacy of the notice.

We find that Landover’s allegation is without merit. Ordinarily, the failure of an administrative board to give statutorily prescribed notice of a hearing is fatal to the jurisdiction of the board. Cassidy v. Baltimore County Bd. of Appeals, 218 Md. 418, 421-22 , 146 A.2d 896 (1958). Where, however, the complaining litigant had knowledge of the facts, “the requirement of notification purposed to inform may be satisfied by actual knowledge, especially when it is acted upon.” McLay v. Maryland Assemblies, Inc., 269 Md. 465, 477 , 306 A.2d 524 (1973) (citation omitted) (no showing of prejudice regarding statutory notice requirements where parties appeared at and participated in zoning board hearing).

See also Clark v. Wolman, 243 Md. 597, 600 , 221 A.2d 687 (1966) (where public notice given and parties attended zoning hearing, failure to receive written notice did not invalidate city’s action); Cassidy, 218 Md. at 422 n. 1, 146 A.2d 896 (lack of constructive notice, in accordance with technical statutory requirements, is waived by a party’s appearance and participation in zoning hearing); Largo Civic Assoc. v. Prince George’s County, 21 Md.App. 76, 86 , 318 A.2d 834 (1974) (parties’ appearance at and participation in zoning classification hearing constituted actual notice where parties alleged posted signs failed to inform public of proposed zoning classification). In the instant case, the purpose of the notice was to inform Landover of the violation with directions that it obtain a special exception by August 15, 1985. On August 15, 1985, Landover filed a notice of appeal regarding the zoning violation and later appeared and participated in the hearing on the appeal, thus indicating that it knew the contents of the notice. Moreover, there can be no showing of prejudice since Landover did attend the hearing.

Under the circumstances presented, we hold that service was in ⁶⁵ compliance with the substantive requirements of the ordinance despite the technical irregularity since Landover had actual knowledge of the violation within the meaning of McLay . ADDITIONAL EVIDENCE Landover also takes issue with the introduction of new evidence by the County following Landover’s appeal from an adverse decision by the Board. Before we address this question, we must first discuss how this issue arose. At the conclusion of the examination of witnesses and the presentation of evidence at the hearing before the Board, both parties were allowed to make final comments.

Land-over stated, “I will not need a summary if I can just make a statement on the record.” Landover briefly restated its position regarding the special exception and notice issue and then alleged for the first time that the ordinance was unconstitutional because it violated the First Amendment and its due process rights. Landover, in effect, acknowledged that the Board did not have power to rule on the issue when it prefaced its constitutional argument by the statement: “We’re not here before either the Circuit Court or the Appeals Courts of Maryland or any Federal Courts, but it’s definitely a contention of our client the the [sic] Ordinance upon which this violation is based in [sic] unconstitutional.” The County followed with its summary, reiterating its position that Landover was an adult bookstore and must apply for a special exception. In response to Landover’s constitutional allegation, the County averred that Landover had no standing to argue the constitutionality of the ordinance and furthermore, had not provided any evidence to prove that the ordinance was unconstitutional, but simply provided legal argument. Following the hearing, the Board issued a decision denying Landover’s appeal from the zoning violation and the ⁶⁶ request for an extension of time to file an application for a special exception.

In discussing the constitutional issue raised by Landover, the Board acknowledged that it was “not a duly authorized court of law empowered to rule definitively upon issues of statutory constitutionality.” Landover appealed the Board’s decision to the Circuit Court for Prince George’s County and both parties subsequently filed memoranda. Attached to the County’s memorandum were 136 pages of documents supporting its constitutional argument. These documents were not presented at the hearing before the Board and thus were not a part of the administrative record. The documents consisted primarily of the administrative bill files for the 1975 zoning ordinance and its subsequent amendments. 3 Landover subsequently filed a motion to strike the documents submitted by the County.

On January 21, 1988, a hearing was held on the motion to strike and on March 3, 1988 the motion was denied. Landover contends that, since the issue of constitutionality was argued by both parties before the board, there is no reason why the County could not have submitted the documents into the record at the hearing. The County explained that the reason this evidence was not submitted to the Board was because the Board “was without jurisdiction to consider the constitutionality of the statute.” In denying the motion to strike, the judge reasoned: “Otherwise the County is put in the position of not having an issue resolved by the Board, and then later not being able to have the Court resolve it because the Board did not consider it.” ⁶⁷ On appeal, Landover argues that Rule BIO only permits additional evidence to be received by a circuit court reviewing an administrative appeal where it is permitted by law. Since the statutory provisions providing for the right of appeal from a decision of an administrative agency do not provide for the receipt of additional evidence on appeal, Landover concludes that the court erred in denying its motion to strike the evidence. 4 The Board of Zoning Appeals for Prince George’s County was without authority to evaluate the constitutional question.

Hence, the trial judge correctly reasoned that good cause existed for the omission of the subject documents since the Board could not consider the issue for which the evidence was presented. In the instant case, since a board of zoning appeals is not a judicial body, it may not rule on the constitutionality of the ordinance under which it is authorized to act. 101A C.J.S. Zoning & Land Planning § 184 (1979). Thus, assuming the trial judge found the proffered evidence material, a remand to the Board to consider the additional evidence would have been futile. See Howard County v. Davidsonville Area Civic & Potomac River As ⁶⁸ soc.

Inc., 72 Md.App. 19, 48 , 527 A.2d 772 , cert. denied, 311 Md. 286 , 533 A.2d 1308 (1987) (remand to agency, while generally appropriate, is not necessary if it would be futile). Accordingly, we hold that the trial judge properly admitted the evidence to support the County’s claim that the ordinance was constitutional. INJUNCTION In his March 23, 1988 order affirming the Board’s decision, the trial judge also ordered Landover to “cease and desist further business activity ... until such time as a special exception application has been filed____” To permit time for Landover to file an application, the order was to take effect on April 5, 1988. Landover concedes that the trial judge was permitted to grant an injunction on his own motion under Rule BB77, 5 but he failed to comply first with Rule BB74.

Rule BB74 provides: “Except as provided in Rule BB72 {Ex Parte Injunction), an injunction shall not be issued unless the adverse party shall have had prior notice and an opportunity to be heard upon the propriety of such injunction.” At the hearing, Landover’s counsel requested a hearing if the trial judge decided to grant an injunction. At the conclusion of the proceedings, the trial judge stated: “Let me say I would—I know what I’m going to do, but I would be inclined, if I’m inclined to hold the Board of Appeals—I would be inclined to issue a . rule to show ⁶⁹ cause why the operation should not be closed down fully, and give you the opportunity to respond to that. And if I thought the special exception was timely filed, I would give you fifteen days. “If it was not timely filed, then I would end up mandating the place be closed. If it was filed, it could stay open pending the normal routine.” No hearing on the propriety of the injunction was ever scheduled.

Thus, Landover argues that the trial court erred in issuing an injunction without first giving it prior notice and an opportunity to be heard. We perceive no error in the trial judge’s ruling. There was a full hearing on the merits of Landover’s appeal from the Board. The trial judge found the ordinance constitutional and affirmed the Board’s decision upholding the zoning violation.

The injunction was merely part of the final order. Landover places much emphasis on the fact that the trial judge stated that he was inclined to give Landover a hearing to show cause why its operation should not be closed down. Although the trial judge may have opted to grant the hearing if he believed additional information was required, it was not necessary here. It was already established at the hearing on the merits that Landover was in violation of the zoning ordinance which resulted from its failure to apply for a special exception.

On appeal, Land-over does not suggest nor do we know what an additional hearing would have accomplished. Injunctive relief is an appropriate remedy to compel compliance with an ordinance. See Shannahan v. Ringgold, 212 Md. 481, 490 , 129 A.2d 797 (1957). That is precisely what the trial judge ordered.

CONSTITUTIONALITY Landover’s primary contention is that the Prince George’s County zoning ordinance, as it applies to adult bookstores, violates its First Amendment rights. As grounds for this ⁷⁰ contention, Landover alleges that 1) the ordinance is not a content neutral time, place and manner regulation and 2) the special exception criteria is vague and overbroad. The resolution of Landover’s challenge to the subject zoning ordinance on the ground that it violates a First Amendment right is largely controlled by the United States Supreme Court’s decisions in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 , 106 S.Ct. 925 , 89 L.Ed.2d 29 (1986), and Young v. American Mini Theatres, Inc., 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). 6 See 5297 Pulaski Highway, Inc. v. Town of Perryville, 69 Md.App. 590, 594 , 519 A.2d 206 (1987). In Renton, the Supreme Court upheld as constitutional a local ordinance which prohibited adult theatres from locating within 1,000 feet of any residential zone, single or multiple family dwelling, church, park or school.

In so holding, the Court relied substantially on American Mini Theatres. In writing for the majority, Justice (now Chief Justice) Rehnquist stated, citing American Mini Theatres, that, since the ordinance did not ban adult theatres altogether but simply regulated their location, it was a valid time, place, and manner regulation. The Court concluded the ordinance was content neutral since the ordinance was not directed at the content of the films shown at the adult theatres, but rather at the “secondary effects” of such theatres on the surrounding community. Renton, 475 U.S. at 47 , 106 S.Ct. at 928 .

Similarly, in American Mini Theatres, the Court upheld as constitutional an ordinance which prohibited adult theatres from locating within 1,000 feet of any two other regulated uses or within 500 feet of any residential area. The Court held that the location restrictions were valid content neutral time, place and manner restrictions since the purpose for the ordinance was not to suppress or ⁷¹ eliminate the speech itself, but to prevent urban blight and crime. The city’s interest in avoiding these secondary effects is one, the Court stated, that “must be accorded high respect.” American Mini Theatres, 427 U.S. at 71 , 96 S.Ct. at 2452 . —Time, Place and Manner Restriction— Under Renton and American Mini Theatres, we conclude that the zoning ordinance in the instant case is properly analyzed as a time, place and manner restriction since the challenged ordinance, like that in Renton and American Mini Theatres, does not ban adult bookstores altogether. Instead, it prohibits adult bookstores from locating within 1,000 feet of any residential zone, school, library, park, playground, recreational facility or church.

Thus, the dissemination of the adult bookstore’s inventory at other locations is not restricted. So long as the protected materials continue to be fully available and public access to them is not substantially impaired, time, place and manner regulations do not offend the First Amendment. Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 827 (4th Cir.1979), citing American Mini Theatres, 427 U.S. at 76-78 , 96 S.Ct. at 2455-2456 . —Content Neutral— Moreover, the ordinance is content-neutral. Content neutral speech regulations are those that “ ‘are justified without reference to the content of the regulated speech.’ ” Renton, 475 U.S. at 48 , 106 S.Ct. at 929 (emphasis in original), quoting Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 , 96 S.Ct. 1817, 1830 , 48 L.Ed.2d 346 (1976).

The ordinance in the instant case is content-neutral since the ordinance was not directed at the content of the material sold at adult bookstores, but rather at the secondary effects of the bookstores on the surrounding community. The concern of the District Council was aimed at the secondary effects that adult bookstores would have on the community, not suppressing speech embodied in the materi ⁷² als displayed or sold at the place of business. The language of the subject zoning ordinance clearly indicates that the purpose of the ordinance is to prevent an adverse impact upon neighboring properties and children. 7 Based upon the preceding discussion and its similarity to the ordinances in Renton and American Mini Theatres, we conclude that the Prince George’s County zoning ordinance is a content-neutral time, place and manner regulation. This description does not, however, end the inquiry. —Validity of a Content Neutral Time, Place and Manner Regulation— With respect to businesses which disseminate sexually explicit materials, content-neutral time, place and manner restrictions directed at such businesses are acceptable only if they are “designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” Renton, 475 U.S. at 47 , 106 S.Ct. at 928 .

Ordinances aimed at preserving the quality of life in the community at large reflect a substantial government interest. Renton, 475 U.S. at 54 , 106 S.Ct. at 932 . The County’s interest in preventing an adverse impact on neighboring properties and children is a substantial government interest. This is especially significant since Renton and American Mini Theatres have made it clear that a city’s interest in preserving the quality of urban life is entitled to high respect.

Landover argues, however, that the County zoning ordinance was enacted without the benefit of studies of the secondary effects of adult bookstores. In support of its contention, Landover relies on 11126 Baltimore Boulevard, Inc. v. Prince George’s County, 684 F.Supp. 884 (D.Md. 1988), rev’d, 886 F.2d 1415 (4th Cir.1989). In 11126 Baltimore Boulevard, the United States District Court for the District of Maryland reviewed the same ordinance which is involved in the instant case and found the ordinance uncon ⁷³ stitutional since there was insufficient evidence in the record to support a finding that the regulated speech produced negative secondary effects. 11126 Baltimore Boulevard, 684 F.Supp. at 895 . The District Court based this finding on the fact that the record contained no reference to any study conducted by the County or by other jurisdictions with regard to the adult bookstore issue.

The District Court indicated that, although a number of citizens of the County submitted letters expressing their concerns, there was no indication that the County investigated these concerns or briefed the Council regarding problems generated by existing adult bookstores. The District Court was also concerned with the fact that the record did not suggest that the members of the Council relied upon any written information supplied to them or that they discussed the effect of similar efforts to regulate adult bookstores elsewhere. We are not persuaded. In Renton, the Supreme Court pointed out that, in enacting an adult theatre zoning ordinance, the “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.” Renton, 475 U.S. at 51-52 , 106 S.Ct. at 930-931 .

The test set forth in Renton does not require specific data in the record. Instead, the test is whether the Council, when enacting the ordinance, had evidence which it reasonably believed was relevant to the problems the County sought to address. Renton, 475 U.S. at 51-52 , 106 S.Ct. at 930-931 . Here, the problems were deterioration of neighboring properties and the attraction of children to adult bookstores.

Evidence in the administrative bill files for the 1975 ordinance and its later amendments contain extensive correspondence from citizens and government officials express ⁷⁴ ing their concern on the negative effects that adult bookstores have or would have on children and neighboring properties. The record also included correspondence from civic organizations expressing the same concerns. In addition, a public hearing was held to require additional comments. A staff person, present at the hearing and who participated in the drafting of the 1975 ordinance and its later amendments, averred that a concern of the council members and staff at the hearing was to address the adverse impact of adult bookstores on neighboring properties and children. 8 We hold that this evidence supports a legitimate interest which the County reasonably believed relevant to the problem it sought to address.

In reversing the district court in 11126 Baltimore Boulevard, the United States Court of Appeals for the Fourth Circuit also found sufficient evidence on secondary effects in the record. In so finding, it noted: “[I]n enacting legislation of this sort, we find it reasonable for local legislative bodies to take notice or assume matters of common knowledge and experience. As