Bigg Wolf Discount Video Movie v. Montgomery Cty., No. CIV.A. DKC 2001-3386.

Decision Date28 March 2003
Docket NumberNo. CIV.A. DKC 2001-3386.
Citation256 F.Supp.2d 385
PartiesBIGG WOLF DISCOUNT VIDEO MOVIE SALES, INC. v. MONTGOMERY COUNTY, Maryland
CourtU.S. District Court — District of Maryland

Paul J Cambria, Jr., Barry Nelson Covert, Lipsitz Green Fahringer Roll Salisbury and Cambria LLP, Buffalo, NY, Joseph

B Chazen, Gina Marie Smith, Meyers Rodbell and Rosenbaum PA, Riverdale, MD, for Mid-Atlantic Management Corp.

Jonathan Lawrence Katz, Marks and Katz LLC, Silver Spring, MD, for Bigg Wolf Discount Video Movie Sales, Inc.

Clifford L. Royalty, Office of the County Attorney for Montgomery County MD, Rockville, MD, for Montgomery County, Maryland.

MEMORANDUM OPINION

CHASANOW, District Judge.

Presently pending and ready for resolution in this case raising a constitutional challenge to a Montgomery County zoning ordinance restricting "adult entertainment businesses" are the following motions: (1) the motion of Plaintiff Bigg Wolf Discount Video Movie Sales, Inc. ("Plaintiff or "Bigg Wolf) to join and consolidate with the case of Mid-Atlantic Management Corporation ("Mid-Atlantic"); (2) the motion of Bigg Wolf to strike material provided by Defendant Montgomery County ("Defendant" or "the County") after the discovery deadline had passed; and (3) the motion of Defendant for summary judgment and its counterclaim for injunctive relief. The issues have been fully briefed and no hearing is deemed necessary. Local Rule 105.6. For reasons that follow, Plaintiffs motions to consolidate and strike will be denied. Defendant's motion for summary judgment will be granted in part, but its counterclaim for injunctive relief will be dismissed without prejudice.

I. Background

Unless otherwise noted, the following facts are undisputed. Plaintiff Bigg Wolf is the owner and operator of a retail store at 9421 Georgia Avenue, Silver Spring, Maryland. The store's primary merchandise is comprised of prerecorded videocassettes and DVDs for purchase and rental. A majority of these are sexually explicit. The store also sells sexually-oriented merchandise such as condoms, sex toys and sexual lubricants. Paper no. 5, Ex. 1.

Bigg Wolf limits the availability of sexually explicit merchandise in its store to consenting adults aged 21 or older. Such merchandise is confined to a separate rear area of the store that is set apart from the rest of the store and which is not visible from the rest of the store or the street. Paper no. 1, at ¶¶ 17, 18. The rear area comprises over 50% of the store's space that is open to customers, though Plaintiffs owner states that sexually explicit merchandise comprises approximately 85-90% of the store's sales. Testimony of Richard Biggs, Preliminary Injunction Hearing, January 29, 2002; Paper no. 5, Ex. 1, at ¶ 6. There are no booths for viewing tapes or DVDs at the store. Paper no. 1, at ¶ 17; Paper no. 5, Ex. 1.

On April 11, 2000, the Montgomery County Council enacted Ordinance No. 14-19 ("the Ordinance"), which amended certain zoning provisions directed towards "adult entertainment businesses." Montg. County Zoning Code §§ 59-A-2.1, 59-6.16. Prior to the enactment of these amendments, Bigg Wolf had been lawfully located at its present address since 1998. The amendments contained in Ordinance No. 14-19 became effective on May 1, 2000. Paper no. 31, Ex. 1. Under the amended zoning provisions, all "adult entertainment businesses" in Montgomery County must be located in the county's 2, 1-1 or 1-2 zoning districts. Montg. County Zoning Code §§ 59-C-4.2(d), 59-C-5.21(d). The zoning provisions, § 59-A-2.1, define "adult entertainment business" as follows: An establishment that: (1) sells, rents, exhibits, or displays adult entertainment materials using a floor area that is more than 10 percent of the total floor area for selling, renting, exhibiting, or displaying all materials; (2) features nude persons or adult entertainment performances; or (3) otherwise requires a County license as an adult entertainment business.

The same section defines "adult entertainment material" as:

Material that is a book, magazine, periodical, or other printed matter; photograph, film, motion picture, video cassette, slide or other visual representation; sculpture or 3-dimensional representation; or sexual paraphernalia that depicts or describes, or a live performance that depicts, sadomasochistic abuse, sexual conduct, or sexual excitement as defined in State law (Section 416A of Article 27 of the Annotated Code of Maryland).

The referenced provisions of MD. CODE ANN. art. 27, § 416A1 define the foregoing terms as follows, in pertinent part:

(c) "Sadomasochistic abuse" means flagellation or torture by or upon a human who is nude or clad in undergarments, or in a revealing or bizarre costume, or the condition of one who is nude or so clothed as being fettered, bound, or otherwise physically restrained;

(d) "Sexual conduct" means human masturbation, sexual intercourse, or any touching of or contact with genitals, pubic areas, or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex, or between human and animals;

(e) "Sexual excitement" means the condition of human male or female genitals, or the breasts of the female when in a state of sexual stimulation, or the sensual experience of humans engaging in or witnessing sexual conduct or nudity.

In addition to confining them to the aforementioned zoning districts, the zoning provisions, § 59-A-6.16, place the following restrictions on the location and practices of adult entertainment businesses, in pertinent part:

(a) An adult entertainment business is permitted in certain zones, subject to the following restrictions and regulations:

(1) The adult entertainment materials must not be visible from outside the establishment...

(3) The adult entertainment business must be located at least 750 feet from any property: (A) located in a residential zone, or (B) on which a school, library, park, playground, recreational facility, day care center, place of worship, or other adult business is located as a principal use. The distance must be measured in a straight line from the nearest property line of the property used for the adult entertainment business to the nearest boundary line of any property located in a residential zone, or on which a school, library, park, playground, recreational facility, day care center, place of worship or other adult entertainment business is located... (5) An adult entertainment business may operate only between the hours of 9:00 a.m. and 11:00 p.m.

The zoning provisions allowed existing non-conforming adult entertainment businesses to continue to operate for eighteen months following the effective date of the amendment. At the expiration of this amortization period, in October 2001, the Code requires compliance with the requirements of the amended zoning ordinance. Paper no. 31, Ex. 1, 2.

Plaintiff filed a six-count complaint on November 14, 2001, challenging the constitutionality of the zoning provisions regulating adult entertainment businesses. Specifically, Plaintiff seeks a declaration that the relevant portions of the zoning ordinance violate the United States Constitution and the Maryland Declaration of Rights and an injunction prohibiting the County from enforcing the zoning provisions against Plaintiff or any other adult entertainment business located in Montgomery County. Plaintiff also seeks unspecified money damages under 42 U.S.C. § 1983. In response to the complaint, Defendant filed an answer and counterclaim seeking to enjoin Plaintiff from continuing to violate the zoning ordinance.

Before the County filed its answer, Plaintiff moved for a preliminary injunction pending the outcome of this case, and the County then filed an opposition and motion to dismiss. Plaintiffs motion was based largely on the assertion that the provisions at issue are not a constitutional time, place, and manner ("TPM") restriction on speech protected by the First Amendment. Plaintiff claimed that the County did not satisfy the standard for such zoning restrictions set forth in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), because it did not actually rely on appropriate studies of adverse secondary effects to justify the zoning, narrowly tailor the zoning to combat those secondary effects, and provide reasonable alternative means of communication. Plaintiff also asserted that the Ordinance is unconstitutionally vague and overbroad, constitutes a prior restraint on protected speech, and violates equal protection. The court held an evidentiary hearing on January 28, 2002 and issued a memorandum opinion on February 6, 2002 denying Plaintiffs motion for a preliminary injunction and Defendant's motion to dismiss. Defendant now moves for summary judgment on Plaintiffs challenge to the constitutionality of Ordinance No. 14-19 and also seeks injunctive relief on its counterclaim against Plaintiff.

II. Analysis
A. Plaintiffs Motion to Join and Consolidate

Plaintiff Bigg Wolf has moved to join together with the plaintiff in Mid-Atlantic Management Corporation v. Montgomery County, DKC-01-CV-2822, and to consolidate their civil actions because both seek to declare unconstitutional various adult use provisions of the County's zoning laws.2 Plaintiff contends that there will be little prejudice from such consolidation and that any such prejudice would be outweighed by judicial economy. The County opposes consolidation, noting that there are already separate scheduling orders in place in the two cases and that there are substantive issues that the two cases do not share in common. Mid-Atlantic filed a response noting the separate scheduling orders and divergent issues, but declining to take a position on Plaintiffs motion for consolidation.

Since Plaintiff filed the motion to consolidate on or about April 10, 2002, there have been delays in the Mid-Atlanti...

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