CHESAPEAKE B & M, INC. v. Harford County, Md.

• Decision Date: 05 July 1995
• Docket Number: No. 94-1270.,94-1270.
• Citation: 58 F.3d 1005
• Parties: CHESAPEAKE B & M, INCORPORATED, t/a Highway Craft, Gift & Book Store, Plaintiff-Appellant, v. HARFORD COUNTY, MARYLAND, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

58 F.3d 1005

CHESAPEAKE B & M, INCORPORATED, t/a Highway Craft, Gift & Book Store, Plaintiff-Appellant, v. HARFORD COUNTY, MARYLAND, Defendant-Appellee.

No. 94-1270.

United States Court of Appeals, Fourth Circuit.

Argued March 7, 1995.

Decided July 5, 1995.

COPYRIGHT MATERIAL OMITTED

ARGUED: Howard J. Schulman, Baltimore, MD, for appellant. Diane Theresa Swint, Harford County Dept. of Law, Bel Air, MD, for appellee. ON BRIEF: Jefferson L. Blomquist, Harford County Dept. of Law, Bel Air, MD, for appellee.

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

Reversed in part, vacated in part, and remanded by published opinion. Circuit Judge MICHAEL wrote the majority opinion, in which Chief Judge ERVIN and Judges MURNAGHAN, WILKINSON, WILKINS, HAMILTON, LUTTIG, WILLIAMS and MOTZ joined. Judge NIEMEYER wrote a dissenting opinion, in which Judges RUSSELL and WIDENER and Senior Judge CHAPMAN joined.

OPINION

MICHAEL, Circuit Judge:

This 42 U.S.C. § 1983 case involves an adult bookstore's First and Fourteenth Amendment facial challenge to a Harford County, Maryland, ordinance that licenses and regulates adult bookstores. The district court held that the ordinance is an unconstitutional prior restraint on speech insofar as it fails to ensure that licensing officials will issue or deny a license within a reasonable time and fails to maintain the status quo for existing bookstores during the application process. The district court rejected the bookstore's other constitutional claims. The bookstore appeals, arguing that the district court erred in holding that the ordinance provides for prompt judicial review of licensing decisions, sufficiently fetters the discretion of licensing officials and is otherwise narrowly tailored. Our principal conclusion is that the County has not provided for prompt judicial review, and we reverse the district court's judgment on that issue. We do not reach the merits of the bookstore's other First Amendment claims.

I.

A.

On May 11, 1992, the Harford County Council (Council) enacted Bill No. 92-27, the Adult Bookstore Licensing Law (Licensing Law), to license and regulate adult bookstores, as defined in the Licensing Law. The Licensing Law was designed to protect the health, safety and welfare of the County's citizens by minimizing the undesirable secondary effects generally associated with sexually oriented businesses. The Council found that such businesses frequently are used for unlawful sexual activities, may facilitate the transmission of sexual diseases, contribute generally to crime, decrease property values and adversely impact the quality of life in their surrounding areas.

The Licensing Law makes it unlawful to operate an adult bookstore in the County without a license issued by the County's Department of Inspections, Licenses and Permits (Licensing Department). To get a license one must complete an application and disclose to the Licensing Department certain information, some of which is fairly personal. For example, an applicant must provide the name, address and date of birth of all employees who will work in the bookstore. If the applicant is a corporation, it must submit a copy of its articles of incorporation and bylaws and the name and address of each person holding at least a ten percent interest. The applicant must submit to a criminal background check. Additionally, the applicant must inform the Licensing Department whether the applicant, the applicant's spouse, any person with whom the applicant resides, any employee who will work in the bookstore, or any person who owns at least a ten percent interest in the applicant has been convicted for one of thirty-two Maryland crimes enumerated in the Licensing Law.

Once an application is received, the Licensing Department must request within seven days an inspection from the County's Health Department and refer the application to any governmental agencies that might have information relevant to the application. These agencies and the Health Department are supposed to report back to the Licensing Department within thirty days. Within the next seven days the Licensing Department must notify the applicant whether a license will be issued. Thus, the Licensing Law contemplates that the Licensing Department will grant or deny a license within 44 days after it receives an application.

The Licensing Department may deny a license for a variety of reasons. For instance, a license may be denied if an applicant bookstore fails a health inspection, or if the applicant, the applicant's spouse, or a person with whom the applicant resides has been convicted within the preceding two years of one of the thirty-two enumerated crimes.¹ If a license is issued, it lasts for one year and may be renewed annually.

Once an adult bookstore is operating, the Licensing Department may suspend or revoke the bookstore's license for any reason that might serve as the basis for the initial denial of a license. In addition, the Licensing Department may suspend or revoke a license for a variety of other reasons, for instance, if the licensee or an employee of the licensee refuses to allow an inspection by government officials, or if within a one-year period at least two book store employees get convicted for one of the thirty-two enumerated crimes.

In addition to the Licensing Department's power to suspend and revoke a license, the Licensing Law contains a penalty provision. Those who violate any provision of the Licensing Law are guilty of a misdemeanor and may be fined up to $1,000 or imprisoned up to six months, or both, with each day of violation constituting a separate offense.²

B.

Chesapeake B & M, Incorporated, t/a Highway Craft, Gift & Book Store (Highway Craft), operates an adult bookstore in the County. It was one of four adult bookstores in operation when the Licensing Law became effective on July 10, 1992. Adult bookstores in operation on that date had 45 days to apply for a license under the new law. Highway Craft did not apply, but filed this 42 U.S.C. § 1983 action on July 23, 1992, to challenge the Licensing Law under various provisions of the United States Constitution.

Highway Craft's complaint alleged that the Licensing Law violates the free speech clause of the First Amendment, made applicable to the states through the Fourteenth Amendment, on the grounds that it is an impermissible prior restraint on speech and that it is not narrowly tailored to minimize the incidental impact on protected expression. Highway Craft further alleged that the Licensing Law's random inspection provision (adult bookstore operators must allow officials to inspect the bookstores whenever they are occupied or open for business) violates the First and Fourth Amendments, made applicable to the states through the Fourteenth Amendment. Finally, Highway Craft alleged that the Licensing Law's civil disability provisions violate the Ex Post Facto and Bill of Attainder Clauses. U.S. Const. Art. I, § 10. The complaint sought declaratory and injunctive relief.

On the parties' cross-motions for summary judgment, the district court issued a memorandum opinion and order on August 25, 1993. With respect to Highway Craft's First Amendment challenges, the court concluded that Highway Craft had raised a facial challenge and that it had standing to do so. The court next concluded that the Licensing Law targets the noncommunicative aspects of protected speech, specifically the undesirable secondary effects associated with sexually oriented businesses, and therefore should be analyzed as a content-neutral time, place and manner restriction.

In the context of determining whether the Licensing Law is narrowly tailored to serve the County's substantial interest in eradicating the undesirable secondary effects, the district court shifted to a prior restraint analysis. Citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), the court noted that a licensing scheme impacting protected expression must (1) impose adequate standards to guide the discretion of licensing officials, (2) ensure an administrative decision on the license application within a reasonably brief time during which the status quo is maintained, and (3) provide for prompt judicial review. The district court found the Licensing Law unconstitutional because it does not ensure a reasonably prompt administrative decision and fails to preserve the status quo for existing adult bookstores during the application process.³ The County does not cross-appeal these rulings.⁴

The district court rejected Highway Craft's other constitutional claims, however. Of significance for this appeal, the court held that the Licensing Law does not vest licensing officials with unbridled discretion to suppress speech and that it adequately provides for prompt judicial review of licensing decisions.

Highway Craft appealed to this court, arguing that the Licensing Law (1) does not impose adequate standards to limit the discretion of County officials involved in the licensing process, (2) does not adequately provide for prompt judicial review, and (3) is not otherwise narrowly tailored to serve any substantial governmental interest. A panel of this court heard argument on July 13, 1994, and decided, two-to-one, to affirm. However, the panel withheld publication of an opinion in view of the potential conflict with 11126 Baltimore Blvd., Inc. v. Prince George's County, Md., 32 F.3d 109 (4th Cir. 1994), a reported decision by a different panel on the meaning of prompt judicial review.

Because of the conflict between the panels, our court issued an order on November 2, 1994, vacating both panel decisions and scheduling both cases for rehearing en banc. The order explained that "the court has particular interest in the issue common to both cases of what is...