Moore–King v. Cnty. of Chesterfield

• Decision Date: 26 February 2013
• Docket Number: No. 11–2183.,11–2183.
• Parties: Patricia MOORE–KING, Plaintiff–Appellant, v. COUNTY OF CHESTERFIELD, VIRGINIA; James J.L. Stegmaier, County Administrator, County of Chesterfield; Joseph A. Horbal, Commissioner of Revenue, County of Chesterfield, Virginia; Thierry G. Dupuis, Chief of Police, County of Chesterfield, Virginia, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

708 F.3d 560

Patricia MOORE–KING, Plaintiff–Appellant,

v.COUNTY OF CHESTERFIELD, VIRGINIA; James J.L. Stegmaier, County Administrator, County of Chesterfield; Joseph A. Horbal, Commissioner of Revenue, County of Chesterfield, Virginia; Thierry G. Dupuis, Chief of Police, County of Chesterfield, Virginia, Defendants–Appellees.

No. 11–2183.

United States Court of Appeals,Fourth Circuit.

Argued: Dec. 4, 2012.

Decided: Feb. 26, 2013.

ARGUED:Roman Paul Storzer, Storzer & Greene, PLLC, Washington, D.C., for Appellant. David Wayne Robinson, Chesterfield County Attorney's Office, Chesterfield, Virginia, for Appellees. ON BRIEF:Chandra D. Lantz, Hirschler Fleischer, PC, Richmond, Virginia; John G. Stepanovich, Stepanovich Law, PLC, Chesapeake, Virginia, for Appellant. Jeffrey L. Mincks, Stylian P. Parthemos, Julie A.C. Seyfarth, Chesterfield County Attorney's Office, Chesterfield, Virginia, for Appellees.

Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Chief Judge TRAXLER and Judge WILKINSON joined.

OPINION

DUNCAN, Circuit Judge:

Patricia Moore–King (“Moore–King”) challenges the application of regulations enacted by the County of Chesterfield, Virginia (the “County”) affecting fortune tellers on various grounds. For the reasons that follow, we affirm the district court's grant of summary judgment in favor of the County.

I.

A.

The parties do not dispute the relevant facts. The Chesterfield County Code of Ordinances (the “Code”) defines a “fortune teller” as

any person or establishment engaged in the occupation of occult sciences, including a fortune-teller, palmist, astrologist, numerologist, clairvoyant, craniologist, phrenologist, card reader, spiritual reader, tea leaf reader, prophet, psychic or advisor or who in any other manner claims or pretends to tell fortunes or claims or pretends to disclose mental faculties of individuals for any form of compensation.

Code § 6–1. Although Moore–King does not identify herself as a fortune teller, she agrees that her spiritual counseling activities fall within the County's fortune teller definition.

The County regulates fortune tellers in four ways, one of which is applicable to all those operating a business in the County, with the others more specific to fortune tellers. First, every person who has a definite place of business in Chesterfield County, including those covered by the fortune teller provision, must acquire a business license. Code § 6–2.

Second, a person seeking a business license to practice as a fortune teller within the County must “apply for and obtain a permit from the chief of police, or his designee.” Code § 15–246(a).¹ The permit application must include biographical information about the applicant, fingerprints and a written authorization to allow the chief of police to conduct a background investigation, and the applicant's certification that all information in the application is true. The chief of police is not to issue a permit if his investigation reveals that “the applicant has been convicted within the last ten years ... of a felony or any other crime materially affecting the applicant's ability to conduct the permitted activity including a crime involving moral turpitude, or has been denied a permit or has had a permit revoked under any [similar] statute or ordinance.” Code § 15–246(d). Section 15– 246 also includes procedures for the suspension or revocation of a fortune teller permit.

Third, the Code imposes a license tax of $300.00 on fortune tellers and fines any person who acts as an unlicensed fortune teller not less than $50.00 and not more than $500.00 for each such offense. Code § 6–44. The Code also imposes an annual business license fee for businesses with more than $10,000 but less than $200,000 in gross receipts. Code § 6–4. No fee applies if a business receives less than $10,000 in gross receipts. Id.

Finally, the County regulates fortune tellers through its zoning ordinances. These ordinances allow “occult sciences,” which includes fortune telling, as a conditional use within the C–5 General Business District. Being eligible for C–5 also enables fortune tellers who have acquired a conditional use permit to operate in the Agricultural (“A”), General Industrial (“I–2”), and Heavy Industrial (“I–3”) zoning districts. The “conditional use” designation is reserved for “those uses which, because of their unique characteristics, cannot be permitted by right in a particular district or districts, without consideration, in each case, of the impact of those uses upon neighboring land and of the public need for the particular use of the particular location.” Code § 19–14. Between January 1, 2005 and December 31, 2009, the County's Board of Supervisors approved 115 of the 119 applications for conditional use permits. J.A. 170.

Beginning in late 2008, Patricia Moore–King sought to offer services as a psychic and spiritual counselor in Chesterfield County under the name of “Psychic Sophie.” She rented office space in an area zoned as a C–3 Community Business District. Other tenants included clinical psychologists and licensed professional counselors.

Both on her website ² and in an affidavit submitted to the district court, Moore–King describes her beliefs and identifies the broad range of her interests. In her own words: “I am very spiritual in nature, yet I do not follow particular religions or practices, and ‘organized’ anything's [sic] are not for me. I pretty much go with my inner flow, and that seems to work best.” J.A. 123. Moore–King draws inspiration from a diverse array of sources:

Spirituality, astrology, Reiki, natural healing, meditation, mind-body-soul-spirit-chakra study, metaphysics in general, new age philosophy, psychology, human behavior, quantum physics, ancient history, philosophy, Kabala/Kabbalah, writing, jewelry making, reading (Manly P. Hall, Madame P. Blavatsky, Alice Bailey, and James Hillman are of special appeal), music, music, music!, and creativity in all forms are passions and interests of mine.

Id. She further professes a strong belief in the “words and teachings of Jesus ... which [she] believe[s] are incorporated into tarot cards” and a belief in “the New Age movement,” which Moore–King describes as “a decentralized Western spiritual movement that seeks Universal Truth and the attainment of the highest individual potential.” J.A. 201. She incorporates these beliefs into the spiritual counseling she provides to her clients.

Spiritual counseling involving a psychic reading is apparently Moore–King's primary practice. This counseling appears to consist largely of her use of tarot cards in conjunction with her client's name and astrological sign—as well as the name and astrological sign of any other person about whom the client wishes to inquire—to attempt to perceive whatever she can on behalf of the client. Clients often bring Moore–King specific inquiries about their businesses, relationships, or other personal matters. She encourages clients to take notes during their sessions in order to remember details of what she has said, and to ask her questions about anything that remains unclear.

B.

In August 2009, authorities from the County contacted Moore–King and informed her she needed a business license to operate. When Moore–King sought to register with the County's Commissioner of Revenue as a business likely to earn less than $10,000 in annual revenue, she learned that the County classified her as a fortune teller as defined in the County Code. She then received a letter informing her that she owed the County $343.75, consisting of the $300 fortune teller license tax under Code § 6–44 and a penalty and accrued interest for late payment.

Moore–King chose not to pay the license tax but instead to challenge the legality of the County's regulatory scheme. In December 2009, she filed a complaint against the County alleging seven counts under the Constitution and federal statutory law. She asserted violations of her First Amendment rights to free speech and the free exercise of religion; statutory claims under the Religious Land Use and Institutionalized Persons Act (the “RLUIPA”), 42 U.S.C. § 2000cc et seq.; and allegations that the County's regulatory treatment of her violated the Equal Protection Clause. The County filed a motion to dismiss, and, following a period of discovery, both the County and Moore–King filed motions for summary judgment.

On September 30, 2011, the district court entered a memorandum opinion and order denying the County's motion to dismiss, denying Moore–King's summary judgment motion, and granting summary judgment in favor of the County. The district court began its analysis of Moore–King's free speech claim by characterizing the County's measures as “de minimis regulation of her business ... common to all businesses in Virginia and, most likely, in the entire nation.” Moore–King v. County of Chesterfield, 819 F.Supp.2d 604, 617 (E.D.Va.2011). It specifically held that Moore–King's business and speech purporting to predict future events constituted “quintessential deception,” id. at 618, and was thus not entitled to any First Amendment protection.

The district court also offered two alternative rationales for its disposition of Moore–King's free speech claim. First, it concluded that because “verbiage is the product that [Moore–King] sells,” the County justifiably regulated her activities as “commercial speech” subject to lessened First Amendment protection. Id. at 619–21. Second, even if Moore–King's activities were not considered commercial speech, the County's regulations passed constitutional muster as valid time, place, and manner restrictions because they properly “balance the need to protect the public from unscrupulous charlatans with the opportunity for fortune tellers to practice their profession.” Id. at 621.

The district court then addressed Moore–King's remaining...