Nico Enters., Inc. v. Prince George's Cnty.

• Decision Date: 13 May 2016
• Docket Number: Civil Action No. DKC 15-2832
• Citation: 186 F.Supp.3d 489
• Parties: Nico Enterprises, Inc., et al. v. Prince George's County, Maryland.
• Court: U.S. District Court — District of Maryland

186 F.Supp.3d 489

Nico Enterprises, Inc., et al.

v.Prince George's County, Maryland.

Civil Action No. DKC 15-2832

United States District Court, D. Maryland.

Signed May 13, 2016

Michael Lloyd Smith, Smith Graham and Crump LLC, Dennis Whitley, III, Shipley and Horne PA, Largo, MD, for Nico Enterprises, Inc., et al.

Jared Michael McCarthy, Prince George's County Office of Law, Upper Marlboro, MD, for Prince George's County, Maryland.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, United States District Judge

Presently pending and ready for resolution in this case raising constitutional challenges to zoning ordinances is a motion to dismiss or, in the alternative, for summary judgment filed by Defendant Prince George's County (the "County"). (ECF No. 7). Also pending is a motion for a temporary restraining order and preliminary injunction filed by Plaintiff Nico Enterprises, Inc. ("Plaintiff"). (ECF No. 10).¹

The relevant issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the County's motion will be granted. Plaintiff's motion will be denied as moot.

I. Background

This action is one of a series of cases brought by adult entertainment establishments located within the County challenging two recent County ordinances (CB-46-2010 and CB-56-2011 ) restricting adult entertainment businesses (the "ordinances"). A recent opinion summarized the ordinances' restrictions:

[CB-46] banned "adult entertainment" businesses from being located anywhere in the County but Zone I-2, an industrial zone. §§ 27-461, 473. Additionally, adult entertainment businesses could only operate between 5:00 PM and 3:00 AM, must be located at least one thousand (1,000) feet from any school, or any other building or use providing adult-oriented performances, and at least one thousand (1,000) feet from any residential zone or land used for residential purposes in any zone. § 475-06.06. Establishments "providing adult-oriented performances lawfully established, operating and having a validly issued use and occupancy permit" at the time of CB-46's enactment had until May 1, 2013 to conform to the new use and location requirements.

CB-56 was adopted by the County Council on November 15, 2011...."Adult entertainment" remained permitted solely in the I-2 zone, but CB-56 permitted "adult entertainment" businesses currently existing and operating with a valid use and occupancy permit in zones C-S-C and C-M (commercial zones), and I-1 and U-L-I (industrial) to continue to operate as nonconforming provided they obtain a Special Exception. Applications for such an exception were due by June 1, 2012. CB-56 eliminated the May 1, 2013 deadline to conform. Based on Plaintiffs' business locations, they were each rendered nonconforming by CB-56 and must obtain a Special Exception to remain in their present locations.

Maages I , 4 F.Supp.3d at 759 (citations omitted). CB-56 contains the current definition of adult entertainment at issue here:

(7.1) Adult Entertainment: Adult Entertainment means any exhibition, performance or dance of any type conducted in a premise where such exhibition, performance or dance involves a person who:

(A) Is unclothed or in such attire, costume or clothing as to expose to view any portion of the breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals with the intent to sexually arouse or excite another person; or

(B) Touches, caresses or fondles the breasts, buttocks, anus, genitals or pubic region of another person, or permits the touching, caressing or fondling of his/her own breasts, buttocks, anus, genitals or pubic region by another person, with the intent to sexually arouse or excite another person.

(ECF No. 7-2, at 24).

On September 21, 2015, Plaintiff filed a complaint seeking a declaratory judgment that CB-46 and CB -56 are unconstitutional under the First and Fourteenth Amendments.

(ECF No. 1). Specifically, the complaint alleges:

a. The ordinance unconstitutionally abridges freedom of speech and expression and imposes an impermissible restraint on constitutionally protected expression;

b. The ordinance is irrational, arbitrary, and capricious because it does not further a substantial governmental interest;

c. The ordinance is not narrowly tailored to further any governmental interest substantial or otherwise;

d. The ordinance was enacted without relevant empirical information to support it;

e. The ordinance was adopted without any valid evidence upon which the County could rely to show adult entertainment in general and Plaintiff's business in particular cause adverse secondary effects;

f. The laws were adopted without any evidence that the County's existing zoning law was inadequate or insufficient to address any perceived adverse secondary effects;

g. The ordinance does not all[ow] ample alternative avenues of communication;

h. The vagueness and subjective definitions of the ordinance would lead human beings of common intelligence to necessarily guess as to the meaning of these terms and differ as to their application;

i. The ordinance deprives the Plaintiffs of their right to equal protection of the laws;

j. The ordinance does not define the word "premises" in paragraph "A";

k. The ordinance contains terms that are unconstitutionally vague and do not provide adequate guidance to law enforcement officers, board members or any other agent of the County who themselves would have to necessarily guess as to the meanings of the terms and differ as to their applications thus leading to differential application of the law; [and]

l. The subject legislations are unconstitutionally vague and [are] thus and void ab initio .

(Id. at 9-10). On October 30, the county filed the pending motion to dismiss. (ECF No. 7). Plaintiff responded (ECF No. 8), and the County replied (ECF No. 9).

On April 1, 2016, the County issued a cease and desist letter to Plaintiff and other nonconforming adult entertainment businesses within the County. (ECF No. 10-1, at 3-15). The letter ordered that Plaintiff "cease and desist all adult entertainment activities no later than 5:00 p.m. Friday, April 8, 2016." (Id. at 3). On April 27, Plaintiff filed the pending motion for a temporary restraining order and preliminary injunction. (ECF No. 10). To date, the County has not taken enforcement action against Plaintiff beyond sending the cease and desist letter and has represented that "it would take no action to disturb the status quo pending this Court's resolution of all outstanding motions for temporary restraining orders and/or preliminary injunctions." (ECF No. 12 ¶ 2).

II. Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint.²

Presley v. City of Charlottesville , 464 F.3d 480, 483 (4th Cir.2006). A plaintiff's complaint need only satisfy the standard of Rule 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). " Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That showing must consist of more than "a formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations omitted).

At this stage, all well-pleaded allegations in a complaint must be considered as true, Albright v. Oliver , 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co ., 176 F.3d 776, 783 (4th Cir.1999) (citing Mylan Labs., Inc. v. Matkari , 7 F.3d 1130, 1134 (4th Cir.1993) ). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cnty. Comm'rs , 882 F.2d 870, 873 (4th Cir.1989). Legal conclusions couched as factual allegations are insufficient, Iqbal , 556 U.S. at 678, 129 S.Ct. 1937, as are conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst , 604 F.2d 844, 847 (4th Cir.1979) ; see also Francis v. Giacomelli , 588 F.3d 186, 193 (4th Cir.2009). Ultimately, a complaint must " ‘permit[ ] the court to infer more than the mere possibility of misconduct’ based upon ‘its judicial experience and common sense.’ " Coleman v. Md. Court of Appeals , 626 F.3d 187, 190 (4th Cir.2010) (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ).

III. Analysis

A. Claims Addressed in Maages

The County argues that this court's reasoning in Maages is dispositive here and warrants dismissal of all of Plaintiff's claims other than its claims of overbreadth and vagueness. (ECF No. 7-1, at 4-6). In its response, Plaintiff concedes that its Equal Protection claim should be dismissed in light of Maages . (ECF No. 8, at 9-10). The plaintiffs in Maages brought challenges to the ordinances that were similar to Plaintiff's claims here. In Maages I , the court granted judgment for the County on the following claims: violation of the Equal Protection Clause, lack of required evidentiary support for the ordinances, lack of adequate procedural safeguards in the special exception process, vagueness, and unbridled administrative discretion. Maages I , 4 F.Supp.3d at 760, 779. In Maages v. Prince George's County (Maages II ), No. DKC–13–1722, 2016 WL 827385, at *2–4 (D.Md. Mar. 3, 2016), the court held that the ordinances left open the constitutionally-required alternative avenues of communication and did not violate Maryland's amortization doctrine.

Here, Plaintiff puts forth multiple constitutional claims in twelve paragraphs within one count. Some paragraphs assert duplicative claims, and others assert one theory or portions of a claim. It is clear, however, that Maages I and II...