11126 Baltimore Blvd., Inc. v. Prince George's County, Md.

• Decision Date: 05 July 1995
• Docket Number: No. 93-2151,93-2151
• Parties: 11126 BALTIMORE BOULEVARD, INCORPORATED, t/a Warwick Books, Plaintiff-Appellant, v. PRINCE GEORGE'S COUNTY, MARYLAND, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 988

58 F.3d 988

64 USLW 2050

11126 BALTIMORE BOULEVARD, INCORPORATED, t/a Warwick Books, Plaintiff-Appellant, v. PRINCE GEORGE'S COUNTY, MARYLAND, Defendant-Appellee.

No. 93-2151.

United States Court of Appeals, Fourth Circuit.

Argued March 7, 1995.

Decided July 5, 1995.

ARGUED: Howard J. Schulman, Baltimore, MD, for appellant. Sean Daniel Wallace, Office of Law, Upper Marlboro, MD, for appellee.

Before ERVIN, Chief Judge, RUSSELL, WIDENER, HALL, MURNAGHAN, WILKINSON, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Reversed by published opinion. WILKINS, J., wrote the majority opinion, in which ERVIN, C.J., HALL, MURNAGHAN, WILKINSON, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, JJ., and PHILLIPS, Senior Judge, joined. NIEMEYER, J., wrote an opinion

concurring in part and dissenting in part, in which RUSSELL and WIDENER, JJ., joined.

OPINION

WILKINS, Circuit Judge:

11126 Baltimore Boulevard, Incorporated, t/a Warwick Books, brought this action pursuant to 42 U.S.C.A. Sec. 1983 (West 1994), claiming that the Prince George's County, Maryland adult bookstore ordinance, Prince George's County, Md., Code subtit. 27, part 16, violates the First and Fourteenth Amendments of the United States Constitution. The district court granted summary judgment in favor of the County. Warwick Books appeals, contending that the ordinance imposes an unconstitutional prior restraint on speech because it fails to provide for adequate procedural safeguards. We agree and reverse the judgment of the district court.

I.

In May 1986, Warwick Books filed an action in the United States District Court for the District of Maryland, maintaining that the Prince George's County adult bookstore ordinance in effect at that time violated the First and Fourteenth Amendments. Although the district court concluded that the ordinance constituted a content-neutral time, place, and manner restriction, it found the ordinance unconstitutional as applied to adult bookstores because the interest advanced by the County was not sufficiently supported by evidence in the legislative record and because the standards to be applied in determining whether a special exception should be granted were vague and subject to arbitrary manipulation. 11126 Baltimore Blvd., Inc. v. Prince George's County, Md., 684 F.Supp. 884, 891, 899 (D. Md.1988). This court reversed the decision of the district court, concluding that the ordinance constituted a content-neutral time, place, and manner restriction which was narrowly tailored to serve the interest of Prince George's County in minimizing the secondary effects associated with, and the protection of children from, adult bookstores and that it provided for ample other opportunities for speech. 11126 Baltimore Blvd. v. Prince George's County, Md., 886 F.2d 1415, 1420, 1426 (4th Cir.1989). Additionally, we determined that the adult bookstore ordinance "provide[d] definite guidelines, consistent with the substantial and legitimate interests advanced by the County, which zoning officials must apply when determining whether to grant a conditional use or special exception permit." Id. at 1427. Although not all of the steps in the process leading to a decision on an application for a special exception were bound by precise time limitations, we noted that the length of the process necessary to obtain a special exception did not render the ordinance an unconstitutional prior restraint because the uncontradicted evidence submitted by County officials indicated that the application process normally took approximately six months. Id. at 1428 n.8. We also observed that adult bookstores were generally permitted to continue operation while the exception was sought. Id.

Thereafter, the Supreme Court rendered its decision in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), holding that a Dallas business licensing scheme constituted an unconstitutional prior restraint on protected speech because it failed to impose adequate procedural safeguards to ensure a prompt decision on a license application and prompt judicial review of a denial. The Court granted Warwick Books' petition for a writ of certiorari, vacated our decision in 11126 Baltimore Boulevard, and remanded for reconsideration in light of FW/PBS. 11126 Baltimore Blvd., Inc. v. Prince George's County, Md., 496 U.S. 901, 110 S.Ct. 2580, 110 L.Ed.2d 261 (1990). On remand, we learned that the County had amended its adult bookstore ordinance to remedy the deficiencies identified in the prior district court decision. 11126 Baltimore Blvd. v. Prince George's County, Md., 924 F.2d 557 (4th Cir.) (per curiam), cert. denied, 502 U.S. 819, 112 S.Ct. 76, 116 L.Ed.2d 50 (1991). And, although the County asserted that it intended to return to its prior zoning ordinance if this court upheld the constitutionality of the prior ordinance, we concluded that the County was seeking an advisory opinion and dismissed the appeal. Id.

Following our dismissal, the County further amended its adult bookstore ordinance. As presently codified, the ordinance prohibits adult bookstores ¹ from operating anywhere in the County unless they obtain a special exception and adhere to other requirements imposed by the ordinance. ² Prince George's County, Md., Code Sec. 27-903. To obtain a special exception, adult bookstores must file an application. In reviewing the application, the ordinance requires that the District Council for Prince George's County consider a number of factors bearing on the suitability of the proposed site for an adult bookstore. ³ Id. Sec. 27-904(b). In addition, the ordinance requires that the administrative review procedure be concluded and that the District Council render its decision on the application for a special exception within 150 days after the acceptance of a complete application. Id. Sec. 27-904.01. If the District Council fails to render a decision within 150 days, the application is deemed denied. Id. Sec. 27-904.01(i). ⁴ Although the ordinance itself contains no provision for judicial review, the parties agree that Maryland law provides for judicial review of final administrative decisions. See Md. Ann.Code art. 66B, Sec. 4.08 (Michie 1988 & Supp.1994). Under Maryland procedural rules, an adult bookstore seeking review of an administrative denial of a special exception would face a delay of up to 93 days before briefing could be concluded, assuming that the bookstore could complete each of the steps in the process with which it is charged within one day. ⁵ The administrative judge of the Circuit Court for Prince George's County issued an administrative order providing that an appeal from an administrative decision relating to the Prince George's County adult bookstore ordinance is to be assigned to a specific judge, who shall schedule oral argument no later than five days after the day for filing a reply brief under the Maryland Rules and shall thereafter render a decision within five days after the conclusion of oral argument. In re B-Rule Appeals in Adult Bookstore Cases, Misc. No. ___ (Cir. Ct. Prince George's County, Md. March 19, 1993). Any extension of these judicially-imposed time limitations may not be granted except by consent of the parties. Id.

Warwick Books' instant action presents a facial challenge to the constitutionality of the amended ordinance. See FW/PBS, 493 U.S. at 223-24, 110 S.Ct. at 603-04. The parties agreed before the district court that there were no material factual disputes and that the sole issue presented for decision was whether the ordinance imposed sufficient procedural safeguards on administrative and judicial review to avoid being an unconstitutional prior restraint. ⁶ On cross motions for summary judgment, the district court entered judgment for the County. 11126 Baltimore Blvd., Inc. v. Prince George's County, Md., 828 F.Supp. 370 (D. Md.1993). It noted that this court had previously ruled that the six-month estimate for processing special exceptions was not unreasonable and concluded that "if six months is reasonable, then five months must be also." Id. at 374. Moreover, the district court found no constitutional deficiency with the promptness of judicial review. Id. at 376. Warwick Books appeals this decision, claiming that the ordinance constitutes an unconstitutional prior restraint on speech because it does not provide for adequate procedural safeguards. ⁷

II.

Although neither party contests the issue, we initially consider whether Warwick Books may pursue a facial challenge to the ordinance based on its claim that the ordinance is an unconstitutional prior restraint on speech protected by the First Amendment. ⁸ It is well settled "that in the area of free expression a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship." City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757, 108 S.Ct. 2138, 2144, 100 L.Ed.2d 771 (1988). Permitting government officials unbridled discretion in determining whether to allow protected speech presents an unacceptable risk of both indefinitely suppressing and chilling protected speech. See FW/PBS, 493 U.S. at 227, 110 S.Ct. at 605; Freedman v. Maryland, 380 U.S. 51, 59, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965). Without the constraint of specific standards to guide the decisionmaker in judging whether a license should issue, an impermissible danger exists that a government official may decide to exercise his judgment to suppress speech he personally finds distasteful or that an applicant may feel compelled to censor his own speech. See Lakewood, 486 U.S. at 757-58, 108 S.Ct. at 2144-45; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 1243, 43 L.Ed.2d 448 (1975). And, without procedural safeguards to ensure a prompt resolution, an applicant may...