Pack Shack v. Howard County

• Decision Date: 24 April 2001
• Docket Number: No. 606,606
• Citation: 138 Md. App. 59,770 A.2d 1028
• Parties: THE PACK SHACK, INC., v. HOWARD COUNTY, Maryland.
• Court: Court of Special Appeals of Maryland

770 A.2d 1028

138 Md. App. 59

THE PACK SHACK, INC., v. HOWARD COUNTY, Maryland.

No. 606, Sept. Term, 2000.

Court of Special Appeals of Maryland.

April 24, 2001.

Howard J. Schulman (Schulman & Kaufman, LLC, on the brief), Baltimore, for appellant.

Brian S. Brown, Baltimore (Barbara M. Cook, Howard County Solicitor, Paul T. Johnson, Deputy County Solicitor and Louis P. Ruzzi, Senior Assistant County Solicitor, on the brief), Ellicott City, for appellees.

Argued before JAMES R. EYLER, KENNEY and WILLIAM W. WENNER (Ret., specially assigned), JJ. JAMES R. EYLER, Judge.

The Pack Shack, Inc., appellant, appeals from a judgment entered by the Circuit Court for Howard County in favor of Howard County, appellee. Appellant contends that a Howard County ordinance, enacted in 1997, violates the First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights. We disagree and, as a result, shall affirm the judgment of the circuit court.

Factual Background

The legislation in question, introduced as Bill No. 65-1997 (hereinafter "Bill 65") and enacted by the County Council, added two new sections and amended other sections of the Howard County Zoning Regulations. Bill 65 defined adult entertainment businesses in new § 103.A.4.1 of the Howard County Code; set forth zoning requirements with respect to such businesses in new § 128.H of the Howard County Zoning Regulations; and amended § 115.B (POR District), § 116.B.28 (PEC District), § 118.B (B-1 District), § 119.B (B-2 District), and § 120.B (SC District)¹ to add adult entertainment businesses as permitted uses, subject to the requirements contained in § 128.H.

Section 128.H.1, entitled "Purpose," provides:

These requirements are intended to allow suitable locations for adult entertainment uses while limiting their adverse secondary impacts on the community. Studies from other jurisdictions in the United States have demonstrated that adult entertainment uses, particularly when clustered in a particular area, are associated with increased crime levels, depreciation of property values, neighborhood deterioration, and negative perceptions of negative character. To lessen and control these impacts, to limit exposure to adult entertainment uses by children, and to control the spread of sexually transmitted diseases, these requirements require dispersal of adult entertainment uses and place certain other restrictions on their location and arrangement.

Subsection .2 states that adult entertainment businesses are permitted in districts where they are listed as permitted uses, and in NT or MXD Districts where they are allowed "by the applicable approved preliminary development plan, comprehensive sketch plan, or final development plan." Subsection .2 also provides that a structure housing an adult entertainment business shall be at least 2,500 feet from any similar business. In addition, all adult entertainment businesses must be at least 500 feet from residential zoning districts, from residential areas in the NT or MXD Districts, and from the boundary of a parcel occupied by a school, child day care center, religious facility, public library, public park, or public recreational facility.

Subsection .5 provides that an adult entertainment business that was established prior to the effective date of § 128.H and does not conform to the bill's requirements may continue to operate until one year after the effective date.

Subsection .6 mandates that an annual zoning permit is required for any adult entertainment business prior to commencing operation of the business, or in the case of an existing business, application for a permit must be made within 30 days of the effective date of the permit requirement. The application is to be made to the Department of Planning & Zoning, the director must act on the application within 30 days of its receipt, and the permit must be approved if the use complies with § 128.H. Subsection .6 further provides that the applicant may commence operation of the business after application but before the permit is approved, and if the permit is denied, the applicant may continue to operate the business during the appeal process.

The parties stipulated that appellant was operating an adult entertainment business, as defined in the bill (§ 103.A.4.1), located at 8445 Baltimore National Pike in Ellicott City. As previously mentioned, section 128.H allowed an amortization period of one year from the effective date of the legislation, i.e., until February 3, 1999, during which period an adult entertainment business established prior to February 3, 1998 could continue to operate. The parties stipulated that appellant was in operation prior to February 3, 1998. The parties also stipulated that appellant was and is in violation of § 128.H.2.D of the Howard County Zoning Regulations, in that it is situated approximately 165 feet from the boundary of a residential district.

On February 5, 1999, appellant filed a complaint against appellee seeking. declaratory and injunctive relief, alleging that Bill 65 was invalid under Article 40 of the Maryland Declaration of Rights.² Subsequently, appellant amended the complaint to assert a violation of 42 U.S.C. § 1983, in that the bill violated the First Amendment to the United States Constitution.³ Appellee filed a counterclaim seeking enforcement of the bill as enacted and a third-party claim against Barry M. Mehta and Chara Patel Mehta, owners of the property at 8445 Baltimore National Pike. The circuit court, after a trial, found that the ordinance was content-neutral and thus did not employ a strict scrutiny analysis. The court declared Bill 65 valid and enjoined appellant and third-party defendants from using the property in violation of § 128.H.

Questions Presented

I. Did the trial court err by failing to apply strict scrutiny analysis or, alternatively, in failing to properly apply the intermediate scrutiny test?

II. Did the trial court err in finding that the Howard County Adult Book and Video Store law provided sufficient alternative avenues of communication when the court did not apply the correct standard of review?

III. Do the Adult Entertainment Law licensing provisions create an unconstitutional prior restraint?

Discussion

I.

We begin with the following basic principles. Under First Amendment jurisprudence, a content-based law is subject to a strict scrutiny analysis, is presumptively impermissible, and is upheld only if there is a compelling reason for its enactment. See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 1886, 146 L.Ed.2d 865, 879 (2000)

(stating that a content-based speech restriction can only stand if it satisfies strict scrutiny and, as such, "it must be narrowly tailored to promote a compelling Government interest."); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925, 928, 89 L.Ed.2d 29, 37 (1986)(stating that the Supreme Court "has long held that regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment."). A law is content-based if it suppresses or restricts the expression of views. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 2459, 129 L.Ed.2d 497, 517 (1994) (stating that "[o]ur precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.").

A law is content-neutral if it is "justified without reference to the content of the regulated speech." Renton,475 U.S. at 48,106 S.Ct. at 929,89 L.Ed.2d at 38 (alteration in original) (citations omitted). Zoning ordinances created to combat the negative secondary effects that stem from businesses that purvey sexually explicit materials are to be reviewed under the standards applicable to content-neutral time, place, and manner regulations. Id. at 49, 106 S.Ct. at 929-30,89 L.Ed.2d at 38-39 (citing Young v. American Mini Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310, 326 (1976)(plurality)). As the Supreme Court stated in Renton,475 U.S. at 47,106 S.Ct. at 928,89 L.Ed.2d at 37, the "so-called `content-neutral' time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication" (heightened or intermediate scrutiny).

Appellant, asserting that (1) the bill in question was introduced shortly after appellant opened its business and (2) the express intent of the bill's sponsor and other Council members was to make the bill as restrictive as legally possible, concludes that the intent of the bill was to restrict the number of stores by limiting the number of potentially available sites. Appellant concludes that, as a result, the bill was content-based. In other words, appellant asserts that the evidence demonstrated that the express purpose was to restrict stores, as opposed to addressing the secondary effects of such stores. Specifically, appellant points to the following:

1. Reports and maps prepared by the Department of Planning & Zoning detailed potentially available sites and indicated that the only two existing adult entertainment stores in Howard County would be required to close at their existing locations.

2. The exclusion of adult entertainment stores from manufacturing zones, despite the Department of Planning & Zoning's recommendation that residential and other protected uses were best insulated from secondary effects by limiting the stores to manufacturing zones.

3. A recommendation by the Department of Planning & Zoning that limitations of the type enacted would not permit alternative sites.

4. A report by the Department of Planning & Zoning advising that the location of adult entertainment stores in B-1 and SC Districts, and in smaller tracts of the B-2 District, was inappropriate...