Landover Books, Inc. v. Prince George's County

• Decision Date: 06 December 1989
• Citation: 81 Md.App. 54,566 A.2d 792
• Parties: LANDOVER BOOKS, INC. v. PRINCE GEORGE'S COUNTY, Maryland. 498 Sept. Term 1988.
• Court: Court of Special Appeals of Maryland

Page 54

81 Md.App. 54

566 A.2d 792

LANDOVER BOOKS, INC. v. PRINCE GEORGE'S COUNTY, Maryland.

498 Sept. Term 1988.

Court of Special Appeals of Maryland.

Dec. 6, 1989.

Leonard L. Lucchi (Wolman & Lucchi on the brief), Upper Marlboro, for appellant.

Joyce Birkel Hope, Upper Marlboro, for appellee.

Argued before ROSALYN B. BELL, WENNER and FISCHER, JJ.

ROSALYN B. BELL, Judge.

Landover Books, Inc. (Landover), appellant, the operator of an adult bookstore located in Lanham, Maryland, appeals from an order of the Circuit Court for Prince George's County, ordering Landover to cease further business activity. Landover contends that the adult bookstore zoning regulations requiring them to close are unconstitutional.

The issues raised in this appeal are:

-- Whether proper notice of a zoning violation was provided to Landover.

-- Whether documents and affidavits, not part of the Board of Zoning Appeals' record, were properly considered by the trial court.

-- Whether the trial court had jurisdiction to issue an injunction without first giving Landover an opportunity to be heard.

-- Whether the Prince George's County zoning ordinance, as it applies to Landover, constitutes an unconstitutional prior restraint.

We affirm the trial court and explain, after first setting forth the pertinent facts. We begin with the legislative history of the subject regulations. We will then deal with the procedural issues and deal last with the constitutional issue.

THE ZONING LEGISLATION

In November of 1975, the Prince George's County Council, sitting as a District Council, ¹ approved a zoning bill governing adult bookstores. Council Bill 156-1975, enacted November 18, 1975, set forth locational and operational requirements which, inter alia, limited the location of adult bookstores to specified commercial zones, prohibited adult bookstores from locating within 1,000 feet of any school building or 500 feet from any church, and required the adult bookstores to obtain a special exception permit in order to operate.

An adult bookstore is defined in § 1 of the 1975 bill as:

"Any commercial establishment that has twenty-five percent (25%) or more of its stock in books, periodicals, photographs, drawings, sculpture, motion pictures, films or other visual representations which depict sadomasochistic abuse, sexual conduct or sexual excitement as defined by Article 27 Section 416A of the Annotated Code of Maryland and does not otherwise qualify as a theatre or nonprofit free lending library."

The bill further provided at § 6 that, "[i]n order to prevent the impairment of, or detriment to, neighboring properties, including existing or potential land uses in the neighborhood and in order to protect children who may be attracted to such establishments," adult bookstores were required to blacken or otherwise obstruct windows, doors and other apertures so as to prevent the viewing of the interior of the establishment from without, to limit advertising or outdoor displays to one business sign, and to prohibit access to any person under the age of 18 years.

In April of 1976, the locational restrictions were amended in Council Bill 10-1976 to increase from 500 feet to 1,000 feet the distance an adult bookstore must be placed from a church or similar place of worship.

The zoning ordinance was amended again in 1980 by Council Bill 116-1980. Section 1 of the amendment redefined adult bookstores by reducing from 25 percent to 5 percent the percentage of material depicting sadomasochistic abuse, sexual conduct or sexual excitement which a store could carry to avoid classification as an adult bookstore. The amendment also added an amortization provision which allowed all nonconforming bookstores to continue in operation until July 1, 1985. After that date, an adult bookstore could only continue in operation if it obtained a special exception, a process which will be discussed later. ²

LANDOVER

Landover operates an adult bookstore at 7411 Annapolis Road in Lanham, Maryland. In April of 1981, Landover was granted a Use and Occupancy Permit to operate an adult bookstore as a nonconforming use. As a result of the changes in the zoning ordinance, an advisory letter explaining the provisions of Council Bill 116-1980 was hand delivered to Landover's place of business on June 14, 1985. The letter was accepted by an employee of Landover. The letter instructed Landover that, if it intended to continue to operate an adult bookstore, it must apply for a special exception by July 1, 1985. On July 2, 1985, an inspection of Landover's premises revealed the continued operation of an adult bookstore without a special exception permit. Subsequently, a zoning violation notice was sent to Robert G. Carr, Landover's resident agent, by certified mail, return receipt requested, requiring Landover to cease operations as an adult bookstore by August 15, 1985 or obtain a special exception. A signed receipt was received by the Department of Environmental Resources, but apparently someone other than Carr signed for it, an issue to be discussed later.

Landover filed a notice of appeal from the zoning violation notice to the Board of Zoning Appeals for Prince George's County (Board) on August 15, 1985. A hearing was scheduled and when Landover failed to appear, the Board dismissed the case. Landover's petition for a new hearing date was denied by the Board. Landover appealed the denial of the petition to the Circuit Court for Prince George's County which remanded the case to the Board for a hearing.

On February 25, 1987, the Board conducted a hearing on the appeal of the zoning violation notice. The Board issued a decision on March 12, 1987, denying Landover's appeal of the violation and its request for extension of the grace period for filing for a special exception. The Board's decision was appealed by Landover to the Circuit Court for Prince George's County.

Prior to the hearing of the appeal, Prince George's County (County), appellee, filed additional evidence consisting of affidavits and documents supporting the 1975, 1976 and 1980 aforementioned Council Bills. Landover filed a motion to strike the documents but it was denied on March 3, 1988, the same day oral arguments were heard on the merits of the appeal. On March 23, 1988, the trial court affirmed the Board's decision and enjoined Landover from conducting its business unless a special exception application was filed by April 5, 1988. It is from this decision that Landover appeals. We must first determine whether Landover has exhausted its administrative remedies.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

At first glance, it would appear that Landover did not exhaust its prescribed administrative remedies since it did not apply for a special exception and have its application rejected. Ordinarily, where a remedy is provided, a litigant must adopt that form and must not bypass an administrative body by pursuing other remedies. Prince George's County v. Blumberg, 288 Md. 275, 284, 418 A.2d 1155 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981). Here, Landover sought to bypass the special exception application process by attacking the constitutionality of the ordinance instead of applying for a special exception. Under Blumberg, a constitutional attack upon the validity of a general statutory enactment as a whole, as contrasted with the ordinance's application to a particular situation, falls within an exception to the administrative agency exhaustion rule. Blumberg, 288 Md. at 284-85, 418 A.2d 1155. The circumstances in the instant case fit this exception.

Here, Landover attacked the ordinance as vague and an unlawful delegation because it provided no definite standards for the Council in issuing special exceptions. One who is subjected to a licensing statute which allegedly vests unbridled discretion in a government official over whether to permit or deny an activity which falls within the scope of First Amendment protection, may challenge the ordinance facially without the necessity of first applying for and being denied a license, or as in this case, a special exception. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, ----, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988). See also Schneider v. Pullen, 198 Md. 64, 69, 81 A.2d 226 (1951). Accordingly, Landover's failure to apply for a special exception does not preclude it from attacking the ordinance as unconstitutional.

NOTICE

Landover contends that service was not made in accordance with the zoning ordinance; hence, service was not proper. Section 27-264(b)(1) of the Prince George's Zoning Ordinance provides:

"When it determines that a violation of this Subtitle has occurred with respect to the use of any building, structure, or land, or there is a failure to obtain a use and occupancy permit, the Department shall serve a notice (on the form provided) upon the owner, general agent, or lessee of the building, structure, or land, directing that the violation stop."

The record reveals that a zoning violation was sent to Landover's place of business by certified mail addressed to Robert G. Carr, Landover's resident agent. A signed receipt of the notice was received by the Department of Environmental Resources. The receipt, however, was signed by someone other than Carr, presumably an employee of Landover. Landover argues that, since Carr was not served with the violation, service was not in accordance with the ordinance. Landover raises the question of a technical irregularity regarding the adequacy of the notice. We find that Landover's allegation is without merit.

Ordinarily, the failure of an administrative board to give statutorily prescribed notice of a hearing is fatal to the jurisdiction of the board. Cassidy v. Baltimore County Bd. of Appeals, 218 Md. 418, 421-22, 146 A.2d 896 (1958). Where, however, the complaining litigant had knowledge of the facts, "the requirement of notification purposed to inform may...