CHESAPEAKE B & M, INC. v. Harford County, Md., Civ. No. B-92-2049.

• Decision Date: 25 August 1993
• Docket Number: Civ. No. B-92-2049.
• Citation: 831 F. Supp. 1241
• Parties: CHESAPEAKE B & M, INC., t/a Highway Craft, Gift & Book Store v. HARFORD COUNTY, MARYLAND.
• Court: U.S. District Court — District of Maryland

831 F. Supp. 1241

CHESAPEAKE B & M, INC., t/a Highway Craft, Gift & Book Store v. HARFORD COUNTY, MARYLAND.

Civ. No. B-92-2049.

United States District Court, D. Maryland.

August 25, 1993.

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

Diane T. Swint, and Stephen W. Lutche, Bel Air, MD, for defendant.

WALTER E. BLACK, Jr., Chief Judge.

Presently pending before the Court are the Motion for Summary Judgment of Chesapeake B & M, Inc. and Harford County's Cross-Motion for Summary Judgment. Chesapeake B & M, Inc., filed the underlying complaint to challenge the constitutionality of the Harford County Adult Bookstore Licensing Law, or Harford County Bill No. 92-27. This bill requires an operator of adult bookstores to be licensed and establishes a system for such licensing.

According to Chesapeake, the County has violated the First Amendment of the United States Constitution by passing this bill. In support thereof, Chesapeake raises the following arguments: (1) the County created the licensing system with the primary purpose of suppressing the free speech of adult bookstore operators; (2) the County failed to set forth, during the enactment proceedings, substantial evidence to show that the bill serves important state interests; (3) the County failed to narrowly draw the bill to limit the amount of infringement on protected speech; (4) the bill delegates decision-making authority to officials whose actions are unreviewable; (5) the bill allows law enforcement agencies to conduct inspections of the bookstores at virtually any time; (6) the bill lacks effective time limitations on the administrative review process; and (7) the bill fails to provide for prompt judicial review of administrative decisions.

Chesapeake contends that the licensing law violates other constitutional provisions as well. For example, Chesapeake asserts that the random inspections by law enforcement agencies are proscribed by the Fourth Amendment. In addition, Chesapeake challenges the law as violative of Article I, § 9, clause 3, which prohibits bills of attainder or ex post facto laws.

Chesapeake has moved for summary judgment and Harford County has filed a cross-motion for summary judgment, alleging that no genuine issue of material fact exists with respect to any claim.

I. SUMMARY JUDGMENT STANDARDS

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a motion for summary judgment is granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Lujan v. National Wildlife Federation, 497 U.S. 871, 883-84, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990).

Here, the Court finds that there are no genuine issues of material fact. This conclusion is supported not only by the state of the record but also by the actions of the parties, both of whom have submitted summary judgment motions that concentrate almost exclusively on the legal interpretation of the Harford County ordinance. Accordingly, the Court shall review the law as applied to the undisputed facts of this case.

II. STANDING

At the outset, the Court notes that Chesapeake has experienced no actual harm because it has not yet applied for a license under the Harford County ordinance. In light of this fact, Chesapeake is actually raising a facial challenge to the County ordinance. Under the traditional doctrine of standing, a federal court is typically constrained from exercising jurisdiction over an action unless the plaintiff has suffered some actual or threatened injury arising from an act of the defendant. Heckler v. Mathews, 465 U.S. 728, 738, 104 S.Ct. 1387, 1394, 79 L.Ed.2d 646 (1984). However, the U.S. Supreme Court has carved out an exception for facial challenges to statutes alleged to be violative of the First Amendment. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 603, 107 L.Ed.2d 603 (1990); City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-756, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988). In particular, a plaintiff may facially challenge a statute that allegedly vests a government official with "unbridled discretion" to decide whether to suppress protected speech. FW/PBS, 493 U.S. at 223, 110 S.Ct. at 603; Members of the City Council for the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 n. 15, 104 S.Ct. 2118, 2125 n. 15, 80 L.Ed.2d 772 (1984). Because Chesapeake sets forth such an allegation here, the Court finds that standing exists.

III. PRIOR RESTRAINT

Chesapeake primarily asserts that the Harford County licensing ordinance is an unconstitutional prior restraint on its exercise of protected speech. In resolving this case, the Court must first determine whether the ordinance is content-neutral or content-based. Although the Supreme Court has thus far refrained from categorizing licensing ordinances, FW/PBS, 493 U.S. at 223, 110 S.Ct. at 603, it is apparent to this Court that the instant ordinance is necessarily tied to the content of adult bookstores. Indeed, licensing is required for all adult bookstores, defined by the ordinance in terms of their content. For example, § 58-1(B) defines an adult bookstore as "a commercial establishment that as its principal business purpose sells or rents ... books ... that describe or depict a sexual act or depict human genitalia in a state of sexual arousal." The Court therefore cannot turn a blind eye to the fact that content plays a role in this licensing plan.

The Court must next ascertain whether the speech in question is protected by the First Amendment. Although the subject matter referred to in § 58-1(B) has overtones of indecency, the speech in the adult bookstores falls short of obscenity, which is a species of unprotected speech. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). In fact, the parties themselves agree that the speech at issue deserves protection. For these reasons, the Court concludes that the ordinance involves protected speech.

As a general matter, restrictions on protected speech are presumed unconstitutional if their purpose is to restrict speech because of its content. City of Renton v. Playtime Theatres, 475 U.S. 41, 46-47, 106 S.Ct. 925, 928-29, 89 L.Ed.2d 29 (1986). However, if the restrictions are primarily aimed at the noncommunicative aspects of the protected speech, the government may impose reasonable time, place, and manner restrictions. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753-54, 105 L.Ed.2d 661 (1989); Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165, 1168 (4th Cir.1986). For such restrictions to pass constitutional muster, they must satisfy four safeguards designed to minimize the suppression of speech. First, the restriction must be within the constitutional powers of the government. Wall, 782 F.2d at 1169. Second, the restriction must further an important or substantial governmental interest. Id. Third, the governmental interest must be unrelated to the suppression of free expression. Id. And fourth, the resulting incidental restriction on free speech must be no greater than necessary to advance the government interest. Id. Essentially, the first three prongs of the Wall test refer to the power of the government to adopt a regulation related to speech, and the fourth prong refers to the proper method for implementing the regulation.

A. The County's Power to Adopt the Ordinance

At the outset, the Court finds that Harford County acted within its constitutional powers to enact the ordinance. Because the ordinance is designed to prevent prostitution, neighborhood blight, declining property values, and the transmission of sexual diseases, the County is authorized to act pursuant to its general police powers. See Wall, 782 F.2d at 1169. Therefore, the first prong of the Wall test has been satisfied.

In construing the second prong, which requires the ordinance to advance important governmental interests, the courts limit the extent of their judicial review. In Wall, the Fourth Circuit held that "judicial review goes only to whether the legislative determination of justification and fitness is not facially without factual support, hence not arbitrary and capricious." Id. In conducting this review, the courts may rely on the governmental interests set forth in the ordinance itself. Postscript Enterprises v. City of Bridgeton, 905 F.2d 223, 227 (8th Cir.1990) (where one clause alone served as an adequate factual undergirding for the ordinance); Mitchell v. Commissioners of Com. on Adult Entertainment Establishments, 802 F.Supp. 1112, 1120 (D.Del.1992). In other words, the government need not conduct an independent investigation into the harms of unregulated adult bookstores. Renton, 475 U.S. at 51-52, 106 S.Ct. at 931. Instead, the government can rely merely on a "sufficiently documented wider national experience properly reflected in matters of public record." Wall, 782 F.2d at 1169-1170 n. 7. Indeed, some courts have virtually taken judicial notice of the tendency of adult bookstores to cause undesirable secondary effects. Id.; Postscript Enterprises, 905 F.2d at 227.

In the instant case, the Harford County ordinance sets forth ten introductory clauses relating to the governmental interests served by the regulation. For example, the ordinance states that "there is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on nearby businesses and surrounding residential areas, causing increased crime and lowering property values." In addition, the ordinance expressly finds that sexually-oriented businesses often promote prostitution and casual sexual liaisons, thereby increasing the transmission of sexual diseases. The ordinance is thus designed to combat these secondary effects. Because other courts have held that the interests served by...