11126 BALTIMORE BLVD. v. Prince George's County

• Decision Date: 15 April 1988
• Docket Number: Civ. No. K-86-1411.
• Citation: 684 F. Supp. 884
• Parties: 11126 BALTIMORE BOULEVARD, INC., etc. v. PRINCE GEORGE'S COUNTY OF MARYLAND, et al.
• Court: U.S. District Court — District of Maryland

684 F. Supp. 884

11126 BALTIMORE BOULEVARD, INC., etc. v. PRINCE GEORGE'S COUNTY OF MARYLAND, et al.

Civ. No. K-86-1411.

United States District Court, D. Maryland.

April 15, 1988.

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

Larnzell Martin, Jr., Co. Atty., and Steven M. Gilbert, Associate Co. Atty., for Prince George's County, Upper Marlboro, Md., for defendant Prince George's County of Maryland.

Monroe Jon Mizel, Kensington, Md. for defendants Gary Greene and Paul Malone t/a Deslico, a Joint Venture.

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 zoning provisions regulating the location and operation of adult bookstores violate the First and Fifth Amendments.¹ Plaintiff brings this action pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief. After extensive briefing and two hearings, the parties have submitted the case to this Court to determine the facts without trial, on the basis of the record, and to apply the law to those findings of fact.²

I. The Zoning Legislation

The Prince George's County Council³ enacted zoning regulations governing adult bookstores in 1975, and modified those regulations in 1976 and 1980. The most recent changes became law in 1987, after this case was instituted by plaintiff.⁴

Council Bill 156-1975, enacted on November 18, 1975, set forth the purpose of the adult bookstore legislation and established the standards to which such stores were required to conform. The preamble to the 1975 bill stated, in part, that its purpose was to "limit the location of adult bookstores" existing in 1975 or thereafter to certain commercial zones, to require a special exception before a bookstore could locate in those commercial areas specifically zoned for adult bookstores, and to require "that then existing adult bookstores be modified in order to lessen their impact on the community."

The County's Zoning Ordinance generally provides that a special exception⁵ (including an application for an adult bookstore) may be approved if:

(1) The proposed use and site plan are in harmony with the purpose of this Subtitle;

(2) The proposed use is in conformance with all the applicable requirements and regulations of this Subtitle (3) The proposed use will not substantially impair the integrity of any validly approved Master Plan or Functional Master Plan, or, in the absence of a Master Plan or Functional Master Plan, the General Plan;

(4) The proposed use will not adversely affect the health, safety, or welfare of residents or workers in the area; and

(5) The proposed use will not be detrimental to the use or development of adjacent properties or the general neighborhood.

Section 27-317.

Prince George's County Code § 27-314 provides that the District Council may approve special exceptions, subject to the delegation of this authority to a Zoning Hearing Examiner. County Code § 27-312 provides, among other things, that the Zoning Hearing Examiner "shall have all the authority, discretion, and power given the District Council" with respect to the granting of special exceptions to the extent that there is not a specific provision to the contrary.

An adult bookstore is defined in Section 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 of Maryland and does not otherwise qualify as a theatre or nonprofit free lending library.

Section 7 of the bill also subjected adult bookstores to the following specific locational and operational conditions:

(a) the structure in which such use is proposed shall be at least 1,000 feet from the nearest property line of any public, private, or parochial school, library, park, or playground, and at least 500 feet from the nearest property line of any church, convent, monastery, synagogue or other place of worship;

(b) special conditions, such as, but not limited to, restrictions on advertisement, outdoor display, location of merchandise, and other reasonable requirements deemed necessary to safeguard the health, safety, morals, and general welfare of the community may be imposed by the District Council as requisite to the grant of a special exception;

(c) Such use will not impair or prove detrimental to neighboring properties, existing or potential land uses in the general area, or the development of same.

Further, the bill provided, at Section 6:

In 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, the continuation of a legal, non-conforming adult book store shall only be permitted if the following requirements are met:

(a) All windows, doors and other apertures shall be blackened or otherwise obstructed so as to prevent the viewing of the interior of the establishment from without.

(b) Outdoor displays or advertising shall be limited to one (1) business sign as provided for in Section 25.61.

(c) The proprietor, owner and/or personnel of such establishment shall prohibit access to the premises by any person who has not attained the age of eighteen (18) years.

The County Council, in Council Bill 10-1976, enacted on April 6, 1986, amended the locational restrictions as follows:

The structure in which such use is proposed shall be at least one thousand (1,000) feet from the nearest property line of any land in any residential zone, or any public, private, or parochial school, library, park, or playground, or other recreational facility, whether commercial or nonprofit, in any other zone, and at least 500 1,000 feet from the nearest property line of any church, convent, monastery, synagogue or other similar place of worship....

(Underscoring indicates added language; brackets indicate deletions.)

On November 16, 1976, the County Council enacted additional changes in Council Bill 104-1976, providing, inter alia, for the continuation of preexisting nonconforming uses, including adult bookstores predating November 18, 1975, as long as any such stores complied with the new locational and operational restrictions.

In 1980, changes were enacted by the District Council in Council Bill 116-1980, reducing to 5 percent from 25 percent the percentage of material depicting sadomasochistic abuse, sexual conduct or sexual excitement which a store could carry and still avoid classification as an adult bookstore. That 1980 change also added an amortization provision for nonconforming bookstores:

In order to provide for a reasonable standard of amortization, and to prevent an unreasonable loss, all nonconforming adult bookstores may continue in operation until July 1, 1985, in accordance with the provisions of Subsection (a) of this Section. On or after that date, an adult book store may only continue in operation pursuant to a special exception for an adult book store, approved in accordance with the provisions of Division 36 provisions for granting of exceptions of this Subtitle.

The zoning requirements were again altered in 1987 to require adult bookstores to prohibit access to minors. Section 27-331(a)(3).⁶

II. Background

Plaintiff's bookstore, located at 11126 Baltimore Boulevard in Prince George's County, began operations in June, 1975, pursuant to a County use and occupancy permit. After the effective date of the County's first adult bookstore zoning regulations, enacted on November 18, 1975 as Council Bill 156-1975, the County requested plaintiff to apply for certification as a nonconforming use or to reduce stock in adult material to less than twenty-five percent. Plaintiff chose the latter alternative. After the 1980 amendments (Council Bill 116-1980), the County asked plaintiff to reduce its adult stock to less than five percent or to obtain a special exception. However, plaintiff did not do so. On July 2, 1985, a zoning inspector examined plaintiff's store, concluded that all of the stock on display depicted sadomasochistic abuse, sexual conduct or sexual excitement as defined by Article 27 § 416A of the Annotated Code of Maryland, noted that plaintiff did not have a special exception, and caused plaintiff to be cited for violating the Zoning Ordinance. On September 18, 1985, the County Board of Zoning Appeals, in an Opinion and Order, ruled that plaintiff was operating in violation of the Zoning Ordinance and required plaintiff to cease all operations by September 30, 1985. Plaintiff has not obeyed that order.

On February 7, 1986, Deslico, plaintiff's landlord, filed a suit in state court, Deslico Joint Venture v. Emmette Demmernetti, T/A 11126 Baltimore Boulevard, Inc., No. CAL86-02239 (Circuit Court for Prince George's County), seeking to eject plaintiff because the landlord had been notified by the County that plaintiff was in violation of the Zoning Ordinance. Plaintiff then filed this action on May 5, 1986. Thereafter, on May 22, 1986, the County filed suit in state court, Prince George's County of Maryland v. Greene, No. HHF53-2667-86 (District Court for Prince George's County), seeking to enforce the September 18, 1985 Order of its Board of Zoning Appeals. The two state court actions have been stayed by the respective state courts pending the outcome of this federal case.

Plaintiff's First Amendment challenge has two prongs. First, plaintiff argues that the adult bookstore regulations were adopted without a showing that the restrictions placed on adult bookstores serve a significant state interest. Second, plaintiff asserts that the Zoning Ordinance grants too much discretion to zoning officials charged with...