Gresser v. Anne Arundel County

• Decision Date: 01 September 1997
• Docket Number: Nos. 20-22,s. 20-22
• Citation: 709 A.2d 740,349 Md. 542
• Parties: Jack GRESSER et ux. v. ANNE ARUNDEL COUNTY, Maryland. ANNAPOLIS ROAD, LTD. v. ANNE ARUNDEL COUNTY, Maryland (Two Cases)
• Court: Maryland Court of Appeals

Page 542

349 Md. 542

709 A.2d 740

Jack GRESSER et ux. v. ANNE ARUNDEL COUNTY, Maryland.

ANNAPOLIS ROAD, LTD. v. ANNE ARUNDEL COUNTY, Maryland (Two Cases).

Nos. 20-22 Sept. Term, 1997.

Court of Appeals of Maryland.

Jan. 28, 1998.

Reconsideration Denied March 6, 1998.

Andrew H. Levine (Robert Schulman, Harry Levy, Schulman, Treem, Kaminkow & Gilden, P.A., Baltimore, on brief); William E. Seekford, Towson, for petitioner.

David A. Plymyer, Deputy County Atty. (Phillip F. Scheibe, County Atty., Anne Arundel County, Annapolis) on brief, for respondent.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW and RAKER, JJ., and JOHN F. McAULIFFE and ROBERT L. KARWACKI, Judges (retired), Specially Assigned.

CHASANOW, Judge.

We granted certiorari to the Court of Special Appeals in these three consolidated cases in which the intermediate appellate court reviewed a ruling by the Circuit Court of Anne Arundel County (the County) that granted summary judgment in favor of the respondent Anne Arundel County. The summary judgment order, dated June 7, 1995, determined that an Anne Arundel County ordinance regulating the location and operation of adult bookstores, film arcades, and motion picture theaters was "legal" and ordered that the petitioners immediately cease use and operation of an adult film arcade. The relevant facts were summarized by the Court of Special Appeals as follows:

"For several years, [petitioner] Annapolis Road, Ltd. (ARL) operated an adult bookstore on property owned by [petitioners] Jack and Brindel Gresser at 1656 Annapolis Road in Anne Arundel County. It sold books, magazines, and videos containing explicit sexual material. It also operated at that location what are sometimes referred to as 'peep shows'--private booths containing coin-operated video machines that display similar kinds of material. The battle between ARL and the county over the operation of ARL's business extends back at least to 1984. In May of that year, a county detective seized a number of books and magazines from the store that were found to be obscene. ARL was later convicted in criminal court of unlawfully displaying those items.

At some point, the county enacted an ordinance requiring 'peep shows' of the type operated by ARL to have a Class Y license. That ordinance is not now before us, but it appears that some question arose as to whether it was sufficiently specific to pass Constitutional muster. On July 15, 1991, the County Council enacted a second ordinance (Bill No. 68-91) imposing a moratorium on the issuance of Class Y licenses until better standards could be developed. The moratorium took effect August 7, 1991. On July 29, county officials inspected the bookstore and found a number of peep show machines that were not covered by Class Y licenses. ARL closed the business and submitted applications for the required licenses. In light of the moratorium, however, the county took no immediate action on the applications. That led to a lawsuit by ARL in U.S. District Court challenging the moratorium.

On November 21, 1991, the County Council enacted Bill No. 98-91, purporting to deal in a more specific and comprehensive way with the operation of adult bookstores and adult theaters. The enactment of that ordinance, which repealed the existing law governing Class Y licenses and set forth revised procedures for the issuance of those licenses, thus made ARL's challenge to the moratorium and the earlier ordinance moot. The Federal court dismissed the pending action, along with claims that the moratorium itself constituted a violation of ARL's rights under 42 U.S.C. § 1983. That dismissal was affirmed by the U.S. Court of Appeals for the Fourth Circuit. Annapolis Road, Limited v. Hagner (No. 91-1205, 1992 WL 120209, Unpublished Opinion filed June 2, 1992).

In a preamble to Bill No. 98-91, the County Council declared its finding, based on evidence presented to it, that sexually oriented businesses have a harmful effect on the area in which they are located and contribute to neighborhood blight and that they therefore require regulation in order to protect neighborhoods from nuisance and deterioration.

That regulation, as set forth in the ordinance, took two forms. One form was reenactment of the requirement, through the addition of new sections 2-1101 through 2-1113 to art. 16 of the County Code, that 'adult film arcades' have a Class Y license in order to operate. The ordinance defined the term 'adult film arcade' as a place containing one or more display devices that, for commercial entertainment or amusement purposes, show images depicting sadomasochistic abuse, sexual conduct, or sexual excitement. The ordinance set forth procedures and conditions for applying for the license as well as substantive requirements with respect to the operation of an adult film arcade. Operation of an adult film arcade without a Class Y license was made a misdemeanor and was also subject to injunction.

The second form of regulation, which itself was in two parts, was effected through additions to the county zoning laws contained in art. 28 of the County Code. The first aspect of the zoning regulation was the requirement of a special zoning certificate of use for adult bookstores and adult motion picture theaters. Art. 28, § 1-128(a) already contained a general requirement that no premises or structure, other than a single-family residence, could be used or altered until a zoning certificate of use was issued by the Office of Planning and Zoning. The 1991 ordinance added a new provision, § 1-128(e), requiring a zoning certificate of use specifically for an 'adult bookstore' and an 'adult motion picture theater,' both of which terms were defined elsewhere in the ordinance. ¹ Adult film arcades were included within the definition of 'adult motion picture theater.' The abstention of the special zoning certificate of use was made a prerequisite to obtaining a Class Y license; a copy of the certificate had to be included with the application for the license.

The second aspect of the zoning regulation was to exclude adult bookstores and adult motion picture theaters entirely from the C1 (Local Retail), C2 (Commercial Office), and C3 (General Commercial) zones, exclude adult motion picture theaters as a permitted use in the C4 (Highway Commercial) zone, and restrict those operations as conditional uses in the C4 and W3 (Heavy Industrial) districts. ² Five conditions were imposed on the location of those operations in the C4 and W3 districts, namely:

(1) they had to be at least 1,000 feet from the boundary line of any dwelling, library, park, school, playground, child care center, church or other place of worship, or other adult bookstore or adult motion picture theater;

(2) all windows, doors, and other apertures had to be blackened or obstructed to prevent persons on the outside from viewing the interior;

(3) the proprietor, owner, and employees were required to prohibit access by anyone under 18 years of age;

(4) if the business was an adult motion picture theater, it was not to be used for the display of obscene films or other performances; and

(5) if it was an adult motion picture theater, it had to have the off-street parking required for theaters generally.

Any existing adult bookstore or adult motion picture theater that would not be in compliance with the new requirements was allowed to continue as a nonconforming use for one year after notice from the Office of Planning and Zoning. By Bill No. 101-92, enacted and signed into law on December 8, 1992, that period was reduced to six months.

ARL chose not to apply for the newly authorized Class Y license but instead reopened its store without a license. On December 4, 1992, after discovering that the business had been reopened, the county filed suit against ARL, contending that it was operating an adult film arcade without a Class Y license. It asked that the operation be enjoined until the license was obtained. The court entered an ex parte injunction, followed, on December 18, 1992, by an interlocutory injunction, restraining ARL and its employee from operating an adult film arcade during the pendency of the litigation. That action has resulted in Appeal No. 460.

In June, 1993, ARL filed an action against the county for declaratory and injunctive relief. It acknowledged that its business involved the display, sale, and rental of books, magazines, and videotapes, a portion of which included themes of a sexual nature, although it denied that any of those materials contain descriptions or depictions of sadomasochistic abuse, sexual conduct, or sexual excitement. ARL averred that its operation was in a C3 zone, that its attempts to obtain a Class Y license had been 'thwarted by the actions of the County and the Department of Inspection and Permits,' that it had attempted to register the operation as a lawful nonconforming use but was informed that the nonconforming use must cease on June 16, 1993, that the county had notified every owner of land on which adult businesses are operated that those operations must cease, that the licensing and zoning schemes embodied in the ordinance 'leaves no existing adult businesses in Anne Arundel County,' and that there was no factual basis for such a regulation.

In light of its allegation that none of the materials it displayed contained descriptions or depictions of sadomasochistic abuse or sexual conduct or excitement, ARL asked for a declaratory judgment that it was not subject to Ordinances 98-91 and 101-92. To the extent it was subject to those ordinances, it asked for a declaratory judgment that they were 'unconstitutional' for a variety of reasons. ARL claimed that the ordinances were invalid because they were impermissibly enacted as emergency legislation and involved more than one subject matter, presumably in contravention of the County Charter. It also averred that they were unconstitutional because (1) they sought to...