637 F.3d 291 (4th Cir. 2011), 09-1540, Legend Night Club v. Miller

Docket Nº:09-1540.
Citation:637 F.3d 291
Opinion Judge:WYNN, Circuit Judge:
Party Name:LEGEND NIGHT CLUB, Plaintiff-Appellee, v. Dennis B. MILLER; Earl J. Howard; Franklin D. Jackson; Nam K. Kim; Shaihi Mwalimu; State of Maryland, Defendants-Appellants, and International Nite Life Enterprises, Incorporated, trading as The Classic III Supper Club, a/k/a The Classics, Plaintiff, and Robert Ehrlich; Prince George's County Government; Pr
Attorney:Matthew John Fader, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellants. Jimmy A. Bell, Law Office of Jimmy A. Bell, PC, Bowie, Maryland, for Appellee. Douglas F. Gansler, Attorney General of Maryland, Charles J. Butler, Assistant Attorney General, Office of the Attorn...
Judge Panel:Before WYNN, Circuit Judge, HAMILTON, Senior Circuit Judge, and MARK S. DAVIS, United States District Judge for the Eastern District of Virginia, sitting by designation. Affirmed by published opinion. Judge WYNN wrote the majority opinion, in which Judge DAVIS joined. Senior Judge HAMILTON wrote ...
Case Date:February 17, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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637 F.3d 291 (4th Cir. 2011)

LEGEND NIGHT CLUB, Plaintiff-Appellee,

and

International Nite Life Enterprises, Incorporated, trading as The Classic III Supper Club, a/k/a The Classics, Plaintiff,

v.

Dennis B. MILLER; Earl J. Howard; Franklin D. Jackson; Nam K. Kim; Shaihi Mwalimu; State of Maryland, Defendants-Appellants,

and

Robert Ehrlich; Prince George's County Government; Prince George's County, Maryland; Norma Lindsay, Defendants.

No. 09-1540.

United States Court of Appeals, Fourth Circuit.

February 17, 2011

Argued: Sept. 21, 2010.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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ARGUED:

Matthew John Fader, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellants.

Jimmy A. Bell, Law Office of Jimmy A. Bell, PC, Bowie, Maryland, for Appellee.

ON BRIEF:

Douglas F. Gansler, Attorney General of Maryland, Charles J. Butler, Assistant Attorney General, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellants.

Before WYNN, Circuit Judge, HAMILTON, Senior Circuit Judge, and MARK S. DAVIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge WYNN wrote the majority opinion, in which Judge DAVIS joined. Senior Judge HAMILTON wrote a separate opinion concurring in part and dissenting in part.

OPINION

WYNN, Circuit Judge:

" Under the doctrine of overbreadth, a statute violates the First Amendment it if prohibits a substantial amount of protected expression." PSINet, Inc. v. Chapman, 362 F.3d 227, 234 (4th Cir.2004). Defendants appeal a permanent injunction prohibiting the enforcement of a Maryland statute due to its overbreadth. We conclude that the statute— which limits the range of permissible conduct, attire, and entertainment at establishments licensed to serve alcoholic beverages— prohibits a broad swath of expression protected by the First Amendment and is not susceptible to a limiting construction. Accordingly, we affirm the permanent injunction prohibiting enforcement of the statute.

I.

Plaintiffs The Legend Night Club (" The Legend" ) and International Nite Life Enterprises, Inc. (" The Classics" ) operate adult entertainment establishments in Prince George's County, Maryland. Plaintiffs are licensed by the Prince George's County Board of License Commissioners

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to serve alcoholic beverages at these establishments.

In 2005, Plaintiffs filed separate complaints challenging the constitutionality of statutory amendments, which, if enforced, would prohibit them from providing both alcoholic beverages and adult entertainment. The complaint filed by The Legend named as defendants the State of Maryland, Prince George's County, the Prince George's County Board of License Commissioners, Governor Robert Ehrlich, and the individual members of the Prince George's County Board of License Commissioners (Franklin D. Jackson, Earl J. Howard, Nam K. Kim, Dennis B. Miller, and Shaihi Mwalimu). The Classics' complaint included the same entities and individuals as defendants, with the exception of Governor Ehrlich. The Classics' complaint also added as a defendant Norma Lindsay, the Chief Liquor Inspector for the Board of License Commissioners. In October 2005, based on the joint stipulations of the parties, the district court dismissed the claims against Governor Ehrlich and the State of Maryland. The State later intervened to defend the statute's constitutionality under 28 U.S.C. § 2403(b).

At issue in both cases was a statutory amendment that added Prince George's County to a list of jurisdictions in which certain attire and conduct is prohibited in establishments licensed to sell alcoholic beverages. Specifically, the statute— effective on October 1, 2005— forbids a person from:

(1) Be[ing] employed or used in the sale or service of alcoholic beverages in or upon the licensed premises while the person is unclothed or in attire, costume or clothing so as to expose to view any portion of the female breast below the top of the areola or of any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals;

(2) Be[ing] employed or act[ing] as a hostess or act[ing] in a similar-type capacity to mingle with the patrons while the hostess or person acting in a similar-type capacity is unclothed or in attire, costume or clothing as described in paragraph (1) of this subsection;

(1) Encourag[ing] or permit[ting] any person on the licensed premises to touch, caress or fondle the breasts, buttocks, anus or genitals of any other person; or

(4) Permit[ting] any employee or person to wear or use any device or covering exposed to view, which simulates the breast, genitals, anus, pubic hair or any portion of it.

Md.Code, Art. 2B § 10-405(c) (2005). The statute also restricts certain entertainment, specifically prohibiting a person from:

(1) Permit[ting] any person to perform acts of or acts which simulate:

(i) The act of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law;

(ii) The touching, caressing or fondling of the breast, buttocks, anus or genitals; or

(iii) The display of the pubic hair, anus, vulva or genitals;

(2) Permit[ting] any entertainer whose breasts or buttocks are exposed (subject to the restrictions of paragraph (1) of this subsection) to perform closer than six feet from the nearest patron; or

(3) Permit[ting] any person to use artificial devices or inanimate objects to depict, perform or simulate any activity

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prohibited by paragraph (1) of this subsection.

Id. § 10-405(d).

Under the statute, an establishment found engaging in prohibited activities would have its license to sell alcoholic beverages revoked. Id. § 10-405(b) (2005) (" Any license issued under the provisions of this article shall be revoked if ... any of the activities listed in this section are found to occur on any premises or location for which the license was issued." ).

The statute also exempts, under a grandfather clause, certain long-term license holders from potential license revocation. That clause provides an exemption for:

a current alcoholic beverages license holder that currently conducts an activity that is made unlawful by this Act only if the license holder:

(a) received approval from the Board to conduct the activity on or before August 15, 1981; and

(b) has owned the licensed premises continuously since September 1, 1981.

2005 Md. Laws 262 § 2.

Plaintiffs contend that the statute as amended is overbroad in violation of the First Amendment. Plaintiffs also contend that the grandfather clause under the statute was intentionally drafted to provide an exemption for the Ebony Inn, an establishment owned by a former state senator. As such, Plaintiffs argue that the grandfather clause violated the Equal Protection Clause of the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights.

Plaintiffs sought a prohibitory injunction and a declaration that the statute as amended was unconstitutional. On September 30, 2005, the district court entered a temporary restraining order enjoining Defendants from enforcing the statute as amended. On March 27, 2006, the district court issued a preliminary injunction forbidding enforcement of the statute. The district court then stayed and administratively closed the cases on July 17, 2006, recognizing that they " may be affected, and possibly mooted, by action in the next session of the Maryland Legislature." By letter of December 20, 2007, the State of Maryland advised the district court that although " [t]he Court issued the stay to provide the General Assembly an opportunity to amend the statute at issue in this litigation, ... [d]uring the 2007 Legislative Session, the General Assembly declined to take action on this statute." The State of Maryland also moved to reopen the cases as expressly allowed by the district court's orders. The district court granted the State's motion on April 2, 2008 and, in the same order, consolidated The Legend's and The Classics' cases.

After a bench trial, the district court issued a written opinion on April 1, 2009. The court held that the statute as amended was unconstitutionally overbroad and not readily susceptible to a limiting construction. The court further held that the grandfather clause violated the Equal Protection Clause and declined to sever the grandfather clause from the statute. Accordingly, on April 30, 2009, the district court entered a permanent injunction stating that " [n]either Defendant Prince George's County Board of License Commissioners nor any other person or entity shall take action to close Plaintiffs' premises, or to suspend or revoke their licenses, based upon any alleged violation of Md. Ann.Code, Article 2B, Section 10-405, as amended by H.B. 1133." The State of Maryland and individual defendants Franklin D. Jackson, Earl J. Howard, Nam K. Kim, Dennis B. Miller, and Shaihi Mwalimu (collectively " Defendants" ) appealed.

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II.

Defendants first argue that the district court erred in finding the statute overbroad because there was no evidence that the law would be applied unconstitutionally. They further contend that even if the statute is facially overbroad, it is susceptible to a limiting construction capable of ensuring its constitutionality.

The district court issued a permanent injunction after concluding that the statute was unconstitutionally overbroad. Under " well-established principles of equity," a plaintiff seeking a permanent injunction must demonstrate:

(1) that it has suffered an irreparable injury; (2) that remedies...

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