Pack Shack, Inc. v. Howard County

JAMES R. EYLER, Judge. The Pack Shack, Inc., appellant, appeals from a judgment entered by the Circuit Court for Howard County in favor of Howard County, appellee. Appellant contends that a Howard County ordinance, enacted in 1997, violates the First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights. We disagree and, as a result, shall affirm the judgment of the circuit court.

Factual Background The legislation in question, introduced as Bill No. 65-1997 (hereinafter “Bill 65”) and enacted by the County Council, added two new sections and amended other sections of the Howard County Zoning Regulations. Bill 65 defined adult entertainment businesses in new § 103.A.4.1 of the Howard County Code; set forth zoning requirements with respect to such businesses in new § 128.H of the Howard County Zoning Regulations; and amended § 115.B (POR District), § 116.B.28 (PEC District), § 118.B (B-l District), § 119.B (B-2 District), and § 120.B (SC District) 1 to add adult entertainment busi ⁶⁶ nesses as permitted uses, subject to the requirements contained in § 128.H. Section 128.H.1, entitled “Purpose,” provides: These requirements are intended to allow suitable locations for adult entertainment uses while limiting their adverse secondary impacts on the community. Studies from other jurisdictions in the United States have demonstrated that adult entertainment uses, particularly when clustered in a particular area, are associated with increased crime levels, depreciation of property values, neighborhood deterioration, and negative perceptions of negative character. To lessen and control these impacts, to limit exposure to adult entertainment uses by children, and to control the spread of sexually transmitted diseases, these requirements require dispersal of adult entertainment uses and place certain other restrictions on their location and arrangement.

Subsection .2 states that adult entertainment businesses are permitted in districts where they are listed as permitted uses, and in NT or MXD Districts where they are allowed “by the applicable approved preliminary development plan, comprehensive sketch plan, or final development plan.” Subsection .2 also provides that a structure housing an adult entertainment ⁶⁷ business shall be at least 2,500 feet from any similar business. In addition, all adult entertainment businesses must be at least 500 feet from residential zoning districts, from residential areas in the NT or MXD Districts, and from the boundary of a parcel occupied by a school, child day care center, religious facility, public library, public park, or public recreational facility. Subsection .5 provides that an adult entertainment business that was established prior to the effective date of § 128.H and does not conform to the bill’s requirements may continue to operate until one year after the effective date. Subsection .6 mandates that an annual zoning permit is required for any adult entertainment business prior to commencing operation of the business, or in the case of an existing business, application for a permit must be made within 30 days of the effective date of the permit requirement.

The application is to be made to the Department of Planning & Zoning, the director must act on the application within 30 days of its receipt, and the permit must be approved if the use complies with § 128.H. Subsection .6 further provides that the applicant may commence operation of the business after application but before the permit is approved, and if the permit is denied, the applicant may continue to operate the business during the appeal process. The parties stipulated that appellant was operating an adult entertainment business, as defined in the bill (§ 103.A.4.1), located at 8445 Baltimore National Pike in Ellicott City. As previously mentioned, section 128.H allowed an amortization period of one year from the effective date of the legislation, ie., until February 3, 1999, during which period an adult entertainment business established prior to February 3, 1998 could continue to operate. The parties stipulated that appellant was in operation prior to February 3, 1998.

The parties also stipulated that appellant was and is in violation of § 128.-H.2.D of the Howard County Zoning Regulations, in that it is situated approximately 165 feet from the boundary of a residential district. ⁶⁸ On February 5, 1999, appellant filed a complaint against appellee seeking declaratory and injunctive relief, alleging that Bill 65 was invalid under Article 40 of the Maryland Declaration of Rights. 2 Subsequently, appellant amended the complaint to assert a violation of 42 U.S.C. § 1988 , in that the bill violated the First Amendment to the United States Constitution. 3 Appellee filed a counterclaim seeking enforcement of the bill as enacted and a third-party claim against Barry M. Mehta and Chara Patel Mehta, owners of the property at 8445 Baltimore National Pike. The circuit court, after a trial, found that the ordinance was content-neutral and thus did not employ a strict scrutiny analysis. The court declared Bill 65 valid and enjoined appellant and third-party defendants from using the property in violation of § 128.H. Questions Presented I. Did the trial court err by failing to apply strict scrutiny analysis or, alternatively, in failing to properly apply the intermediate scrutiny test?

II

Did the trial court err in finding that the Howard County Adult Book and Video Store law provided sufficient alternative avenues of communication when the court did not apply the correct standard of review? ⁶⁹ III. Do the Adult Entertainment Law licensing provisions create an unconstitutional prior restraint? Discussion I. We begin with the following basic principles. Under First Amendment jurisprudence, a content-based law is subject to a strict scrutiny analysis, is presumptively impermissible, and is upheld only if there is a compelling reason for its enactment.

See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 , 120 S.Ct. 1878, 1886 , 146 L.Ed.2d 865, 879 (2000)(stating that a content-based speech restriction can only stand if it satisfies strict scrutiny and, as such, “it must be narrowly tailored to promote a compelling Government interest.”); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47 , 106 S.Ct. 925, 928 , 89 L.Ed.2d 29, 37 (1986)(stating that the Supreme Court “has long held that regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment.”). A law is content-based if it suppresses or restricts the expression of views. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 , 114 S.Ct. 2445, 2459 , 129 L.Ed.2d 497, 517 (1994)(stating that “[o]ur precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.”).

A law is content-neutral if it is “justified without reference to the content of the regulated speech.” Renton, 475 U.S. at 48 , 106 S.Ct. at 929 , 89 L.Ed.2d at 38 (alteration in original) (citations omitted). Zoning ordinances created to combat the negative secondary effects that stem from businesses that purvey sexually explicit materials are to be reviewed under the standards applicable to content-neutral time, place, and manner regulations. Id. at 49 , 106 S.Ct. at 929-30 , 89 L.Ed.2d at 38 -39 (citing Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 , 96 S.Ct. 2440, 2452 , 49 L.Ed.2d 310, 326 (1976)(plurality)). As the Supreme Court stated in ⁷⁰ Renton, 475 U.S. at 47 , 106 S.Ct. at 928 , 89 L.Ed.2d at 37 , the “so-called ‘content-neutral’ time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication” (heightened or intermediate scrutiny).

Appellant, asserting that (1) the bill in question was introduced shortly after appellant opened its business and (2) the express intent of the bill’s sponsor and other Council members was to make the bill as restrictive as legally possible, concludes that the intent of the bill was to restrict the number of stores by limiting the number of potentially available sites. Appellant concludes that, as a result, the bill was content-based. In other words, appellant asserts that the evidence demonstrated that the express purpose was to restrict stores, as opposed to addressing the secondary effects of such stores. Specifically, appellant points to the following: 1.

Reports and maps prepared by the Department of Planning & Zoning detailed potentially available sites and indicated that the only two existing adult entertainment stores in Howard County would be required to close at their existing locations. 2. The exclusion of adult entertainment stores from manufacturing zones, despite the Department of Planning & Zoning’s recommendation that residential and other protected uses were best insulated from secondary effects by limiting the stores to manufacturing zones. 3. A recommendation by the Department of Planning & Zoning that limitations of the type enacted would not permit alternative sites. 4. A report by the Department of Planning & Zoning advising that the location of adult entertainment stores in B-l and SC Districts, and in smaller tracts of the B-2 District, was inappropriate for adult entertainment businesses because the Districts were located close to residential areas, and thus the secondary effects would not be ameliorated. ⁷¹ 5.

The limitation of adult entertainment stores to B-l, B-2, and SC Districts, where there were very few available sites. 6. The appearance of potentially available sites created by permitting adult entertainment stores in Planned Employment Centers and Planned Research Centers, in which little commercial land was actually available. 7. The enactment of amendments to the bill without a Department of Planning & Zoning study with respect to the effects of the amendments in conjunction with other restrictions in the bill, despite the County Solicitor’s recommendation that the Council have that information. 4 Alternatively, appellant contends that the circuit court committed error even if the heightened scrutiny standard applies. Appellant explains that appellee was required to articulate governmental interests in order to justify the bill, and the circuit court was required to make findings that the bill furthered content-neutral goals.

Specifically, appellant claims that the court should have made findings that identified the secondary effects, the existence of those effects, and how the Ml would ameliorate the effects. Appellant contends that there was no such analysis and no evidence. Appellee contends that locational requirements are valid and that the motive or intent of the legislators is irrelevant. The question is whether the ordinance is justified, not the motives of legislators or concerned citizens.

According to appellee, the appropriate standard is heightened scrutiny because the bill was part of a recognized zoning mechanism aimed at the secondary effects of adult entertainment businesses. Appellee asserts that the bill does not proscribe nor regulate content, and consequently, the bill is valid if it serves ⁷² governmental interests and allows reasonable alternative avenues of communication. Appellee asserts that the Howard County Council considered numerous reports from other jurisdictions addressing the detrimental effects of adult entertainment businesses. Appellee states that the record supports a legitimate governmental interest and that the circuit court so found.

Appellee further posits that the Renton case indicates that reliance on data from other jurisdictions is acceptable and that new studies are not required. We reject appellant’s argument that the bill was content-based, and thus we decline to apply strict scrutiny. Appellant argues that evidence demonstrated that an express purpose of the bill was to restrict adult entertainment businesses, as opposed to addressing the secondary effects resulting from such businesses. The Supreme Court in Renton, however, specifically rejected the argument that “if ‘a motivating factor’ in enacting the ordinance was to restrict respondents’ exercise of First Amendment rights the ordinance would be invalid, apparently no matter how small a part this motivating factor may have played in the City Council’s decision.” 475 U.S. at 47 , 106 S.Ct. at 929 , 89 L.Ed.2d at 38 .

As the Supreme Court stated: It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.... ... What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. Id., 475 U.S. at 48 , 106 S.Ct. at 929 , 89 L.Ed.2d at 38 (quoting United States v. O’Brien, 391 U.S. at 383-84, 88 S.Ct. 1673, 1682 , 20 L.Ed.2d 672 (1968)); see also City of Erie v. Pap’s A.M., 529 U.S. 277, 280 , 120 S.Ct. 1382, 1392-93 , 146 L.Ed.2d 265, 281 (2000)(reiterating that the Court “will not strike down an otherwise constitutional statute on the basis of an alleged ⁷³ illicit motive” and upholding a ban on public nudity because, “[i]n light of the Pennsylvania court’s determination that one purpose of the ordinance is to combat harmful secondary effects, the ban on public nudity here is no different from the ban on burning draft registration cards in O’Brien , where the Government sought to prevent the means of the expression and not the expression of antiwar sentiment itself.”)(emphasis added); Workers’ Compensation Comm’n v. Driver, 336 Md. 105, 118 , 647 A.2d 96 (1994)(“[i]t is well-settled that when the judiciary reviews a statute or other governmental enactment, either for validity or to determine the legal effect of the enactment in a particular situation, the judiciary is ordinarily not concerned with whatever may have motivated the legislative body or other governmental actor.”). The Supreme Court has recognized locational requirements as a “valid governmental response” to the serious problem created by adult theaters and has determined that such requirements may withstand First Amendment scrutiny.

Renton, 475 U.S. at 54 , 106 S.Ct. at 932 , 89 L.Ed.2d at 42 . In Renton, the Court observed that the ordinance in question stated that it was designed “to prevent crime, protect the city’s retail trade, maintain property values, and generally ‘[protect] and [preserve] the quality of [the city’s] neighborhoods, commercial districts, and the quality of urban life,’ not to suppress the expression of unpopular views.” Id. at 48 , 106 S.Ct. at 929 , 89 L.Ed.2d at 38 . Accordingly, the Court determined that “the Renton ordinance is completely consistent with our definition of ‘content-neutral’ speech regulations as those that ‘are justified without reference to the content of the regulated speech.’ ” Id. (citations omitted).

As the Renton Court stated, zoning ordinances designed to alleviate the secondary effects of businesses that purvey sexually explicit materials are reviewed under the standards applicable to content-neutral time, place, and manner regulations. See Renton, 475 U.S. at 49 , 106 S.Ct. at 929-30 , 89 L.Ed.2d at 39 (citing Young v. American Mini Theatres, Inc., 427 U.S. 50 , 96 S.Ct. 2440 , 49 L.Ed.2d 310 (1976)(plurality)). ⁷⁴ Subsequent to the Renton opinion, the analysis employed by the Supreme Court has been applied by this Court to declare the constitutionality of locational requirements, applicable to adult bookstores. See Landover Books, Inc. v. Prince George’s County, 81 Md.App. 54, 73 , 566 A.2d 792 (1989). As this Court stated in Landover Books, 81 Md.App. at 71 , 566 A.2d 792 : 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. In the instant case, section 128.H.1 of Bill 65 stated that its purpose was to lessen adverse secondary impacts in the community resulting from adult entertainment businesses.

These secondary impacts were described as “increased crime levels, depreciation of property values, neighborhood deterioration, and negative perceptions of negative character.” The bill was intended “[t]o lessen and control these impacts, to limit exposure to adult entertainment uses by children, and to control the spread of sexually transmitted diseases.... ” Thus, the bill in the instant case is properly analyzed as a time, place, and manner restriction because the ordinance does not ban adult bookstores altogether; rather, it restricts their location to certain areas. See Landover Books, 81 Md.App. at 71 , 566 A.2d 792 . The appropriate inquiry when examining content-neutral time, place, and manner restrictions directed at businesses which disseminate sexually explicit materials is whether the ⁷⁵ ordinance is “designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication.” Renton, 475 U.S. at 50 , 106 S.Ct. at 930 , 89 L.Ed.2d at 39 ; see also Annapolis Rd., Ltd. v. Anne Arundel County, 113 Md.App. 104, 119 , 686 A.2d 727 (1996), rev’d on other grounds, 349 Md. 542 , 709 A.2d 740 (1998); Landover Books, 81 Md.App. at 72 , 566 A.2d 792 . Appellant argues that even if the court applied the correct test, it did so incorrectly.

According to appellant, the trial court should have made specific findings that identified the secondary effects that the bill was intended to combat, the existence of those effects, and how the bill would ameliorate the effects. Both Supreme Court and Maryland precedent establish that ordinances aimed at preserving the quality of life in the community reflect a substantial government interest. See Renton, 475 U.S. at 54 , 106 S.Ct. at 928 , 89 L.Ed.2d at 42 (upholding the Renton ordinance as a valid governmental response to the serious problems caused by adult theaters by “mak[ing] 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.”); American Mini Theatres, 427 U.S. at 71 , 96 S.Ct. at 2453 , 49 L.Ed.2d at 327 (plurality)stating that “the city’s interest in attempting to preserve the quality of urban life is one that must be accorded high respect.”); Landover Books, 81 Md.App. at 72 , 566 A.2d 792 (stating that “[t]he County’s interest in preventing an adverse impact on neighboring properties and children is a substantial government interest.”). The Renton Court specifically rejected the contention that the First Amendment dictates that a local government “before enacting such an ordinance, [ ] conduct new studies or produce evidence independent of that already generated by other cities.” 475 U.S. at 51-52 , 106 S.Ct. at 930-31 , 89 L.Ed.2d at 40 .

Local governments may rely on data and studies conducted by other cities. Id. The government interests justifying the legislation need not be based upon ⁷⁶ “specific local experiences and conditions.” Landover Books, 81 Md.App. at 75 , 566 A.2d 792 (quoting Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165 , 1169-70 n. 2 (4th Cir.1986)). As we stated in handover Books, “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.” 81 Md.App. at 73 , 566 A.2d 792 .

In the instant case, the Howard County Council received into the legislative record eighteen studies and reports from other jurisdictions which documented the experiences of other local governments in addressing the detrimental effects of adult entertainment uses. The trial court expressly found that the ordinance did not prohibit pornography, that it regulated the location of adult entertainment businesses for the purpose of combating the known secondary effects from their uses, and that the bill was content-neutral. The bill on its face delineated the secondary effects that it was intended to combat. We are not aware of any case law which mandates that a trial court make further findings identifying the existence of secondary effects in a locality and exactly how the bill will alleviate them.

In fact, in Renton, at the time of the enactment of the zoning ordinance restricting the location of adult motion picture theaters, the City of Renton did not even have “any business whose primary purpose is the sale, rental, or showing of sexually explicit materials.” 475 U.S. at 52 , 106 S.Ct. at 931 , 89 L.Ed.2d at 41 . Accordingly, we reject appellant’s argument that the circuit court was required to make additional findings. The test is whether the Howard County Council had evidence before it which it reasonably believed was relevant to the problems the Council sought to address. The trial court found “that the legislative record as a whole supports a legitimate interest which the Council reasonably believed relevant to the problems it sought to address in the bill____[t]his constitutes a reasonable basis for the Council to believe that the bill would further its stated purposes.” We agree that the ⁷⁷ legislative record supported this finding.

Accordingly, we hold that the trial court did not err in its application of the intermediate scrutiny standard.

II

Appellant contends that the circuit court erred in finding that there were sufficient alternative avenues of communication. Appellant asserts that a time, place, and manner law, assuming this is such, must permit ample space for adult entertainment uses and must not substantially reduce the number of adult entertainment stores or significantly reduce accessibility to patrons of those stores. Appellant’s expert, Shep Tullier, concluded that there were four sites economically viable under the bill and also conceded that there were twelve sites potentially available. Appellant points out that the circuit court essentially adopted that testimony in finding that there were between four and twelve sites available under the legislation.

Appellant further points out the undisputed fact that there are 160,639 acres in Howard County. Four sites or twelve sites, assuming that each is one acre in size, constitutes less than one percent of the total acreage. Appellant asserts that this is a minuscule amount in comparison to the amount available in other reported cases upholding laws similar to the one involved in this case. The net result, according to appellant, is that there is no reasonable opportunity for appellant to relocate and that the law effectively eliminated or will eliminate the only two existing locations.

Appellant, as it did with respect to the first issue, also asserts that the circuit court’s findings are inadequate. Appellee argues that the identity of zones and setbacks is a matter of legislative judgment, as long as it is within constitutional limitations. Accordingly, appellee did not have to prove whether exclusion or inclusion in a particular district advanced a state interest. Appellee asserts that the focus is properly on the legislation as a whole.

Furthermore, appellee states that the Renton test is whether the ordinance effectively denied a reasonable opportunity to open and operate an adult enter ⁷⁸ tainment store. Appellee concludes that the circuit court properly applied that standard in determining that the bill allowed for reasonable, alternative avenues of communication. In this case, the Director of Planning & Zoning testified that there were at least 28 potential sites. Only two adult entertainment stores are located in Howard County.

The total area in Howard County in compliance with the bill is 1,000 acres, which constitutes 7% of the county’s non-residential area. No one has applied for a permit under the bill. Appellee asserts that a total of 111 properties comply with the requirements of the bill in the absence of the 2,500 foot separation requirement. Relying upon Diamond v. Taft, 215 F.3d 1052, 1057 (9th Cir.2000), in which the Ninth Circuit stated that a 1,000 foot spacing requirement was not applicable when the applicant was the first to open an adult business, appellee argues that the total number of sites should not be restricted to 23 because the number of sites is reduced to 23 only when the 2,500 foot separation requirement is imposed.

Additionally, appellee asserts that 90% of the county’s total acreage is zoned for residential use, in which all commercial use is prohibited. Over one-half of the remaining 10% is zoned for manufacturing or heavy industrial use, in which retail businesses generally