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

• Decision Date: 25 October 1989
• Docket Number: No. 88-2823,88-2823
• Citation: 886 F.2d 1415
• Parties: 11126 BALTIMORE BOULEVARD, t/a Warwick Books, Plaintiff-Appellee, v. PRINCE GEORGE'S COUNTY, MARYLAND, Defendant-Appellant, and Cary W. Greene; Paul F. Malone, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1415

886 F.2d 1415

11126 BALTIMORE BOULEVARD, t/a Warwick Books, Plaintiff-Appellee, v. PRINCE GEORGE'S COUNTY, MARYLAND, Defendant-Appellant and Cary W. Greene; Paul F. Malone, Defendants.

No. 88-2823.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 31, 1988.

Decided Sept. 28, 1989.

Rehearing and Rehearing In Banc Denied Oct. 25, 1989.

Steven M. Gilbert, Associate County Atty. (Michael P. Whalen, County Atty., Michael O. Connaughton, Deputy County Atty., Upper Marlboro, Md., on brief), for appellant.

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

Before WIDENER, MURNAGHAN and CHAPMAN, Circuit Judges.

CHAPMAN, Circuit Judge:

The defendant/appellant, Prince George's County, Maryland (hereinafter "County"), appeals from a summary judgment order of the United States District Court for the District of Maryland declaring the County's adult bookstore zoning regulations as applied to the plaintiff/appellee, 11126 Baltimore Boulevard, Inc., t/a Warwick Books (hereinafter "Plaintiff"), unconstitutional. We reverse.

I.

In November 1975, the County Council, sitting as the District Council, approved an adult bookstore zoning ordinance. CB-156-1975. This enactment limited the location of adult bookstores to specified commercial zones, required a "special exception" permit to operate an adult bookstore, prohibited such stores from locating within 1,000 feet of any school building or 500 feet of any church, and required that "existing adult bookstores be modified in order to lessen their impact on the community." CB-156-1975. "Adult Book Store" was defined in the provision 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.

CB-156-1975, Section 1.

The ordinance amended existing zoning provisions to require such establishments to blacken or otherwise arrange all windows, doors and other apertures so as to prevent the viewing of the interior of the business establishment from without, to limit outdoor displays or advertising to one business sign, and to grant access only to persons above the age of 18 years. These provisions, according to legislative findings in the text of the bill, were added "[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." CB-156-1975, Section 6.

The zoning ordinance was amended twice in 1976. CB-10-1976; CB-104-1976. One amendment increased from 500 feet to 1,000 feet the distance adult bookstores must be placed away from places of worship. CB-10-1976.

In November 1980, the County modified the zoning ordinance to encourage "amortization of nonconforming adult book stores." CB-116-1980. These amendments redefined adult book stores by reducing the amount of non-adult stock from 25 percent to 5 percent and provided for the regulation of any store with one or more mechanical viewing devices. It also provided that nonconforming adult bookstores could continue in operation until July 1, 1985. After that date, an adult bookstore could only continue in operation if it received special exception approval. In order to obtain special exception approval, the applicant must demonstrate that the proposed use meets all of the requirements of the ordinance by substantial evidence and that there is no substantial evidence to the contrary. ¹

Briefly, a special exception application begins with a review for compliance with zoning ordinances by the Technical Staff in the Zoning Division of the Planning Commission which issues a "Technical Staff Report" recommending approval, conditional approval or denial of the application. The application may be passed on to the County Planning Board and then reviewed in a public hearing before a zoning Hearing Examiner. A Hearing Examiner's written decision may be appealed to Prince George's County Council, sitting as the District Council. The Council entertains oral argument and reviews the administrative record before making a final decision. The Council's final decision may be appealed to the Circuit Court for Prince George's County.

The Plaintiff was initially issued a use and occupancy permit in June 1975. Following the enactment of the zoning ordinance in late 1975, the County requested the Plaintiff to apply for certification as a nonconforming use or reduce its stock in adult material to less than 25 percent. The Plaintiff reduced its adult-oriented stock in compliance with the request. After the 1980 ordinance was enacted, the County again instructed the Plaintiff to apply for special exception or seek certification as a nonconforming use. Plaintiff opted to apply for certification as a nonconforming use, and the use of an occupancy permit was extended to the Plaintiff. Pursuant to the 1980 provisions, a store operating under a nonconforming use could remain open until July 1985. CB-116-1980. Plaintiff declined to make application for a special exception. Shortly after the July 1985 deadline passed, the County issued a citation to the Plaintiff for operating without a special exception, and the Board of Zoning Appeals ordered the Plaintiff to cease operation as an adult bookstore.

The Board of Zoning order was appealed to the Circuit Court for Prince George's County by the Plaintiff. In February 1986, the Plaintiff's landlord filed suit to evict the Plaintiff from the premises because the landlord also had received notice of the zoning violation in question. Prince George's County also filed suit against the Plaintiff and the landlord in the District Court of Maryland for Prince George's County to enforce the order of the Board of Zoning Appeals. All three state court proceedings have been stayed by agreement of the parties and the Maryland courts pending a resolution of the present action commenced in the United States District Court on May 5, 1986.

This action brought by the Plaintiff requested the court to declare the county's adult bookstore zoning ordinance to be in violation of the First and Fourteenth Amendments to the United States Constitution and requested an injunction against its application. On summary judgment, the district court held the regulations unconstitutional on their face and the special exception standards and zoning ordinances invalid as applied to adult bookstores. The court concluded that in order to survive a First Amendment challenge, a legislative body's assertion of a "substantial interest" in regulating adult bookstores must be supported by "substantial evidence" in the legislative record, which the court found to be lacking in the case at bar. Thus the court held the County's regulations invalid on their face. The County's special exception standards, the court further held, were invalid under the First Amendment because they "are quite vague" and "subject to possible manipulation and arbitrary application." 11126 Baltimore Boulevard, Inc. v. Prince George's County of Maryland, 684 F.Supp. 884, 898-99 (D.Md.1988).

Attached to the County's motion for summary judgment were affidavits, legislative records, journal articles, academic studies and expert opinion testimony suggesting that adult bookstores create undesirable secondary effects in their neighborhoods. The district court noted that the zoning provisions were not intended to eliminate adult bookstores but were content-neutral time, place and manner regulations of protected expression. As previously noted, the court held that to withstand a First Amendment challenge an ordinance regulating adult bookstores must be supported by substantial evidence in the legislative record. The district court found that specific evidence of the secondary effects of adult bookstores, which the Council alleged motivated its regulations, was not before the Council at the time it enacted the challenged legislation. Thus, the County failed to produce a legislative record with substantial evidence justifying, for constitutional purposes, its zoning regulations.

II.

The Plaintiff's central claim is that the challenged ordinances violate its First Amendment rights. It is uncontested that Plaintiff, in operating its bookstore, is afforded substantial protection by the First and Fourteenth Amendments to the United States Constitution. See Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). When regulations, such as those challenged here, impinge on a protected business, they must be subjected to the analysis set forth by the Supreme Court in Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1975), and more recently in City of Renton v. Playtime Theatres, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).

In American Mini Theatres, supra, the Court upheld an "Anti-Skid Row Ordinance" which provided, inter alia, that an adult theater could not be located within 1,000 feet of any two other "regulated uses," or within 500 feet of a residential area. "Regulated uses" included sexually oriented bookstores and theaters, cabarets, bars, dance halls and hotels restricted to an adult clientele. A plurality opinion authored by Justice Stevens reasoned that the lines drawn by the ordinance were justified by the City's legitimate interest in preventing urban blight and crime. Arguing that ultimately what was at stake was "nothing more than a limitation on the place where adult films may be exhibited," American Mini Theatres, 427 U.S. at 71, 96 S.Ct. at 2452, it held that the ordinance did not violate the First and Fourteenth Amendments.

In Renton, supra, the Court reviewed a theater owner's challenge...