Pack Shack, Inc. v. Howard County
Citation | 832 A.2d 170,377 Md. 55 |
Decision Date | 10 September 2003 |
Docket Number | No. 55,55 |
Parties | The PACK SHACK, INC. v. HOWARD COUNTY, Maryland. |
Court | Court of Appeals of Maryland |
Howard J. Schulman (Joseph S. Kaufman, Schulman & Kaufman, LLC, on brief), Baltimore, for petitioner.
Jonathan L. Katz, Silver Spring, David A. Wasserman, Winter Park, Amicus Curiae, for petitioner.
Louis P. Ruzzi, Senior Asst. Cty. Solicitor (Barbara M. Cook, Howard Cty. Solicitor, on brief), Ellicott City, for respondent.
Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.
In this action, the Pack Shack, Inc., ("Pack Shack") challenges a zoning ordinance enacted by Howard County that places restrictions on the location and operation of adult businesses. The issue before us is whether the Howard County ordinance violates Article 40 of the Maryland Declaration of Rights and the First Amendment to the United States Constitution. We shall hold that it does.
On December 1, 1997, the Howard County Council unanimously passed Bill 65-1997, which was later signed into law by the County Executive. The Bill amended various sections of the Howard County Zoning Regulations, by defining adult entertainment businesses and imposing location and other restrictions on their operation. The stated purpose of the Bill was to control the "secondary impacts" associated with the presence of adult businesses, including, allegedly, "increased crime levels, depreciation of property values, neighborhood deterioration and negative perceptions of neighborhood character." The County Council did not conduct its own study on secondary effects, relying on studies from other jurisdictions on similar businesses.
The Bill amended § 103 of the Howard County Department of Planning and Zoning's Regulations, and defined an adult entertainment business as follows:
"Adult Entertainment Business: `This term includes the following types of businesses:
* * *
"
Pack Shack is in the business of the sale and rental of sexually explicit videotapes, books and periodicals, and the sale of lingerie and other materials; it also offers individual viewing booths for the display of adult videos. Pack Shack does not dispute that, under the definition in the Bill quoted above, it is an adult entertainment business and subject to the zoning ordinance.
Adult entertainment businesses, thus defined, are permitted as "a matter of right" in specific zones, subject to location setbacks and other conditions, including a license requirement. The Bill, as it amended § 128.H of the Zoning Regulations of Howard County, states in pertinent part as follows:
Pack Shack is located in Ellicott City in Howard County, in a district zoned as "business: general," where adult entertainment businesses are permitted, subject to the restrictions set forth above.
On February 3, 1999, Pack Shack filed a complaint in the Circuit Court for Howard County, seeking injunctive relief and a declaratory judgment. As later amended, the complaint asserted that the ordinance violated Article 40 of the Maryland Declaration of Rights and the Free Speech and Free Press clauses of the First Amendment to the United States Constitution, which are applicable to state and local laws by virtue of the Fourteenth Amendment.1 The cause of action raising the federal constitutional challenges was brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983.
In its complaint, Pack Shack alleged that the "purpose, intent and effect of Bill 65-1997[was] to chill and inhibit and otherwise prevent the exercise of the freedom of speech" and "to prevent Plaintiff and all similar adult establishments from doing business" in the County. Pack Shack claimed that the ordinance suffered from several other specific constitutional infirmities. Pack Shack alleged the County did not have sufficient evidence that the restrictions placed by the ordinance would serve a substantial government interest. It also asserted that the licensing requirement set forth in the ordinance lacked adequate procedural safeguards and, therefore, was an unlawful prior restraint on constitutionally protected speech, and that the ordinance was not narrowly tailored so that any incidental restriction on speech was no greater than necessary to achieve the County's goal. Lastly, Pack Shack contended that the ordinance failed to provide reasonable alternative channels of communication, because there could be as few as four sites in the entire County that complied with all of the requirements.
Howard County filed a cross-claim for injunctive relief, seeking enforcement of the zoning ordinance. Howard County also filed a third party complaint against the owner of the property on which Pack Shack operates its business. The County argued that the purpose of the Bill was to limit the adverse secondary effects associated with adult businesses, and that the ordinance was sufficiently narrowly tailored to achieve that goal. The County also asserted that the licensing scheme was not a prior restraint on speech because the business could commence, or continue, operation while its license application was pending, including the appeal process.
After discovery, the County filed a motion for summary judgment which was denied. Prior to the non-jury trial, the parties stipulated that Pack Shack was an adult entertainment business for the purpose of the zoning ordinance and that it was in violation of the 500 foot setback requirement.2 Following the trial, the Circuit Court for Howard County issued a Memorandum and Order rejecting Pack Shack's challenge to the constitutionality of the ordinance and entering an injunction ordering Pack Shack to comply with the zoning ordinance. The Court of Special Appeals affirmed the trial court's decision. Pack Shack v. Howard County, 138 Md. App. 59, 770 A.2d 1028 (2001). Pack Shack then...
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