11126 BALTIMORE BLVD. v. Prince George's County

• Decision Date: 27 July 1993
• Docket Number: Civ. No. K-91-3697.
• Citation: 828 F. Supp. 370
• Parties: 11126 BALTIMORE BOULEVARD, INC., t/a Warwick Books v. PRINCE GEORGE'S COUNTY OF MARYLAND.
• Court: U.S. District Court — District of Maryland

828 F. Supp. 370

11126 BALTIMORE BOULEVARD, INC., t/a Warwick Books v. PRINCE GEORGE'S COUNTY OF MARYLAND.

Civ. No. K-91-3697.

United States District Court, D. Maryland.

July 27, 1993.

Howard J. Schulman, Baltimore, MD, for plaintiff.

Michael P. Whalen, County Atty. for Prince George's County and Sean D. Wallace, Associate County Atty. for Prince George's County, Upper Marlboro, MD, for defendant.

FRANK A. KAUFMAN, Senior District Judge.

Plaintiff, a Maryland corporation and the operator of an adult bookstore in a shopping mall in Prince George's County, Maryland ("County"), contends that the County's present zoning provisions regulating the location and operation of adult bookstores violate the First and Fifth Amendments. Plaintiff brings this action pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief. Pending are cross-motions for summary judgment. For the reasons stated in this opinion, plaintiff's said motion will be denied and defendant's said motion will be granted.

FACTS AND PROCEDURAL HISTORY

There are no relevant factual disputes between the parties. The within case involves a constitutional challenge to a Prince George's County zoning ordinance regulating the location and operation of adult bookstores. This case follows a previous suit which involved the same plaintiff's challenge to a prior similar ordinance. See 11126 Baltimore Boulevard v. Prince George's County, 684 F.Supp. 884 (D.Md.1988), rev'd, 886 F.2d 1415 (4th Cir.1989), vacated and remanded 496 U.S. 901, 110 S.Ct. 2580, 110 L.Ed.2d 261 (1990), dismissed as moot 924 F.2d 557 (4th Cir.1991).

For a detailed history of the facts leading up to the above-cited prior litigation, see 684 F.Supp. at 884-889. Herein, it suffices to say that Prince George's County first enacted zoning regulations governing adult bookstores in 1975, with several subsequent modifications. In 1986, plaintiff filed suit in this Court seeking declaratory and injunctive relief under 42 U.S.C. § 1983, contending, as it does herein, that the County was violating plaintiff's First and Fifth Amendment rights.

In the aforementioned prior case, this Court held that the ordinance challenged therein was "a content-neutral time, place and manner regulation." 684 F.Supp. at 891. That determination was later affirmed on appeal by the Fourth Circuit. 886 F.2d at 1420. Such a regulation is valid if it "is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication." Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S.Ct. 925, 930, 89 L.Ed.2d 29 (1986).

Since mitigation of negative secondary effects associated with adult entertainment businesses is a valid governmental interest, Renton, 475 U.S. at 48, 106 S.Ct. at 929, this Court then examined the evidence of such secondary effects presented by the County in defense of the challenged ordinance, including:

a stack of reports and studies regarding adult bookstore zoning regulations and an affidavit from a professional land-use planner supporting the rationality of the Council's enactment of its adult bookstore ordinances.

684 F.Supp. at 896. After so doing, this Court concluded:

Had the Council received those materials prior to its vote on the ordinances, its actions would appear to fall within the standards of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1986) and Renton. But post-hoc rationalizations — materials apparently collected for use in this case and not presented to the Council before it enacted the challenged legislation — are something quite different.

684 F.Supp. at 896. The Fourth Circuit reversed that portion of this Court's decision, writing:

that the County's legislative records show substantial and legitimate legislative interests which the County reasonably believed to be relevant to the problem it sought to address.... In light of this record, coupled with the reasonable exercise of legislative notice and supplemental evidence presented to the trial court, we hold that the County sufficiently demonstrated substantial government interests in its regulation.

886 F.2d at 1425. The Fourth Circuit further concluded that "the regulations are both narrowly tailored to serve the interests advanced by the County and they afford ample alternative avenues of communication" and therefore that those regulations were constitutional. Id. at 1426.

This Court also found fault, in the prior case, with the criteria established for issuance of adult bookstore special exceptions, holding that they were vague and "subject to possible manipulation and arbitrary application by officials who might object to the contents of the materials sold at adult bookstores." 684 F.Supp. at 899. The Fourth Circuit, on appeal, again disagreed, determining that the challenged criteria "provide 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." 886 F.2d at 1427.

In sum, this Court found two constitutional defects in the ordinance: (1) the lack of sufficient evidence in the legislative record to support the County's interest in eradicating the negative secondary effects of adult bookstores, and (2) the vague criteria for granting special exceptions for such bookstores. See 684 F.Supp. at 899. The Fourth Circuit reversed on both points and upheld the challenged ordinance, in toto, as constitutional. See 886 F.2d 1415 et seq.

Plaintiff filed motions in the Fourth Circuit for rehearing and rehearing in banc. Both were denied. Soon after the Fourth Circuit had denied those motions, the Supreme Court filed its opinion in FW/PBS, Inc. d/b/a Paris Adult Bookstore II v. Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (a licensing/zoning scheme must provide constitutionally effective limitations on the time within which a licenser's decision must be made and must also provide prompt judicial review in order to minimize suppression of speech, should the license be denied). Plaintiff then sought Supreme Court certiorari review of the Fourth Circuit's decision in the prior case instituted in this Court. The Supreme Court granted certiorari, vacated the Fourth Circuit's opinion, and remanded "for further consideration in light of FW/PBS." 11126 Baltimore Blvd. v. Prince George's County, 496 U.S. 901, 110 S.Ct. 2580, 110 L.Ed.2d 261 (1990).

On remand, in the Fourth Circuit, the parties submitted memoranda to that Court, addressing whether the administrative processes contained in the Prince George's County Code for obtaining an adult bookstore zoning license contained constitutionally effective time limits and were subject to prompt judicial review. During oral argument, presented to the Fourth Circuit, counsel for the County advised the panel that the County Code containing zoning regulations governing adult bookstores had been amended by the enactment of Prince George's County Ordinance CB 131-1988. In that context, the Fourth Circuit held the issues presented in the said previous case to be moot, dismissed the appeal, and remanded the case to this Court with instructions to dismiss the action. 11126 Baltimore Blvd. v. Prince George's County, 924 F.2d 557 (4th Cir.1991). This Court so did.

In the within case, plaintiff challenges the ordinance in its present form, that is, the ordinance at issue in the previous litigation as amended by CB-131-1988 and CB-6-1992. CB-131-1988 was apparently drafted in order to bring the Prince George's County Code pertaining to adult bookstores into conformity with this Court's previous decision. The ordinance stated that it was intended to be effective while the previous order of this Court was reviewed on appeal and that if that order was reversed, vacated, or otherwise modified, it was the County's intention to rescind some or all of the provisions of Ordinance CB-131-1988. However, in the wake of the Supreme Court's vacatur of the Fourth Circuit's decision reversing this Court's earlier Order and the Fourth Circuit's subsequent dismissal of the remanded case as moot, the County did not so do.

The within case was initially brought as a challenge to the County's adult bookstore ordinance as amended by CB-131-1988. However, since the onset in 1991 of the within case, and after CB-131-1988 was enacted by it, the County Council, sitting as the District Council, enacted Ordinance CB-6-1992. CB-6-1992 amended the Adult Bookstore Zoning Law by providing that after January 1, 1993, adult bookstores could only continue in operation if a special exception was approved in accordance with that law. CB-6-1992 included time limitations within which the various stages of the special exception application process were to be completed. Under those limitations, the County's Zoning Division is required to decide whether to accept an application within three working days of receipt of a "completely and properly filled out" application. Posting is to take place within fifteen days of the date of the Zoning Division's acceptance of such an application; the issuance of the Zoning Division's written report and scheduling of a public hearing, within 45 days thereof; the hearing concluded and the decision of the Zoning Hearing Examiner filed, within 90 days thereof; notice of appeal to the District Council filed, within 105 days thereof; oral argument before the District Council, within 135 days thereof; and a decision on the appeal by the District Council, within 150 days thereof. If the District Council fails to make its decision within that 150 day period, the application is deemed to have been denied. It is also to be noted that under the County's general zoning ordinance applicable to all zoning including that pertaining to adult book stores, the District Council may remand zoning matters for further proceedings before the Zoning Hearing Examiner.

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