Pack Shack, Inc. v. Howard County

Citation832 A.2d 170,377 Md. 55
Decision Date10 September 2003
Docket NumberNo. 55,55
PartiesThe PACK SHACK, INC. v. HOWARD COUNTY, Maryland.
CourtCourt 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.

ELDRIDGE, J.

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.

I.

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:

`a. Adult Book or Video Store: A business establishment ... that offers for sale or rental any printed, recorded,... filmed or otherwise viewable material, or other paraphernalia, where a significant or substantial portion of the stock in trade is characterized by an emphasis on matters ... relating to sexual activities.

* * *

`b. Adult Movie Theater: A business establishment ... that regularly or routinely offers for viewing on the premises films, videos or similar material characterized by an emphasis on matters ... relating to sexual activities.

`c. Adult Live Entertainment Establishments: A business establishment... that regularly and routinely features ... live entertainment... performances characterized by sexual activities, real or simulated, or nudity.'"

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:

"2. Location

* * *
"The building containing an adult entertainment business shall be located

"a. At least 2500 feet from any other building containing an adult entertainment business. Only one adult entertainment business is allowed per building.

"b. At least 500 feet from residential... Zoning Districts, ...

* * *

"e. At least 500 feet from the boundary of a parcel occupied by an academic school ... child day care center, religious facility as the principal use, public library, public park or public recreational facility, provided the use existed prior to the establishment of the adult entertainment business."

"3. Interior Arrangement

"The interior of the establishment shall be arranged so that employees and customers can observe all areas open to customers. Viewing booths shall not be equipped with ... any ... device that allows a booth's interior to be screened from the view of employees or other customers."

"4. Outside Display or Visibility

"No merchandise, material or performances depicting, ... or relating to sexual activity or nudity ... shall be visible from outside the adult entertainment business."
* * *

"6. Required Permit

"a. An annual zoning permit is required for any adult entertainment business. Prior to commencing operation of the business, the business owner and property owner must apply for a zoning permit from the Department of Planning and Zoning. Owners of the property on which existing businesses are located and existing business owners must apply for a permit within 30 days of the effective date of the permit requirement. The permit application shall indicate the address and location of the building to be occupied by the business as well as floor plans or other information that will enable the Director of Planning and Zoning to determine whether the use will comply with [the other restrictions imposed in] this Section. The permit application shall also include the name and address of each owner of the business and each owner of the property on which the business is located. If the owner of the business is not a natural person, the application shall list the names and addresses of all natural persons who have a financial interest in the business and all natural persons who are authorized to act for the owner of the business. In addition, if the owner of the property on which the business is located is not a natural person, the application shall list the names and addresses of all natural persons who have a financial interest in the property and all natural persons who are authorized to act for the owner of the property.

"b. The Director of Planning and Zoning shall act on the permit application within 30 days of receipt of the application by the Department of Planning and Zoning. The permit shall be approved if the use complies with [the conditions] of this section.

"c. The applicant may ... commence operation of the adult entertainment business after applying for the zoning permit but before the permit is approved. However, if the Director of Planning and Zoning subsequently denies the permit because the business does not comply with [the provisions] of this section, the business must cease operating.... If the applicant appeals the Director's denial of the permit, the business may continue to operate pending the outcome of the appeal."

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.

II.

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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