United States District Court, D. Maryland
MAAGES AUDITORIUM, et al.
PRINCE GEORGE'S COUNTY, MARYLAND
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For Maages Auditorium, D2, Jane Doe, for all those similarly situated, John Doe, CD15CL2001, Inc., doing business as Bazz and Crue, doing business as X4B Lounge, Plaintiffs: Luke Charles Lirot, PRO HAC VICE, Luke Charles Lirot PA, Clearwater, FL; Dennis Whitley, III, Shipley and Horne PA, Largo, MD.
For Prince George's County, Maryland, Defendant: Jared Michael McCarthy, LEAD ATTORNEY, Prince George's County Office of Law, Upper Marlboro, MD; Janssen Everette Evelyn, Prince George's County, Maryland Office of Law, Upper Marlboro, MD.
DEBORAH K. CHASANOW, United States District Judge.
Presently pending and ready for review in this case raising a constitutional challenge to Prince George's County zoning ordinances restricting " adult entertainment" businesses is the motion for a preliminary injunction filed by Plaintiffs Maages Auditorium; CD15CL2001, Inc., d/b/a Bazz and Crue and X4B Lounge; D2; and John Doe and Jane Doe, for all those similarly situated (ECF No. 10), and a motion to dismiss or, in the alternative, for summary judgment filed by Defendant Prince George's County (ECF No. 22) (" County" ). The issues have been fully briefed and a hearing was held on September 13, 2013. For the following reasons, the motion for preliminary injunction will be denied and the motion to dismiss or, in the alternative, for summary judgment, will be granted in part and denied in part.
Plaintiffs are: (1) a group of adult entertainment businesses located in the County; (2) " John Doe," a representative patron of the clubs; and (3) " Jane Doe," a representative performer at the clubs.
Plaintiffs presently challenge two County laws: CB-46-2010 and CB-56-2011 (" zoning ordinances" ). CB-46 was adopted by the County Council on September 7, 2010. It defined " adult entertainment" as
[A]ny 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; 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.
Prince George's Cnty. Code § 27-107.01 (ECF No. 1, Ex. A, at 2). The law further banned " adult entertainment" businesses from being located anywhere in the County but Zone I-2, an industrial zone. § § 27-461, 473 (ECF No. 1, Ex. A, at 8-11). 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. ( Id. at Ex. A, at 13).
CB-56 was adopted by the County Council on November 15, 2011. It amended the definition of " adult entertainment" to add the following to the end of Section 27-107.01(A): " with the intent to sexually arouse or excite another person." ( Id. at Ex. B, pg. 2). " 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. ( Id. at Ex. B, at 5-7). CB-56 eliminated the May 1, 2013 deadline to conform. ( Id. at Ex. B, at 8). 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. ( Id. ¶ 37).
Section 27-317 of the County Code provides that a Special Exception may be approved if:
(1) The proposed use and site plan are in harmony with the purpose of this Subtitle;
(2) The proposed use is in conformance with all the applicable requirements and regulations of this Subtitle;
(3) The proposed use will not substantially impair the integrity of any validly approved Master Plan or Functional Master Plan, or, in the absence of a Master Plan or Functional Master Plan, the General Plan;
(4) The proposed use will not adversely affect the health, safety, or welfare of residents or workers in the area;
(5) The proposed use will not be detrimental to the use or development of adjacent properties or the general neighborhood; and
(6) The proposed site plan is in conformance with an approved Type2Tree Conservation Plan; and
(7) The proposed site plan demonstrates the preservation and/or restoration of the regulated environmental features in a natural state to the fullest extent possible in accordance with the requirement of Subtitle 24-130(b)(5).
Plaintiffs applied for a Special Exception, but stated in their applications that they raised no federal issues, and reserved all rights to litigate any federal claims in federal
court pursuant to England v. Louisiana Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). (ECF No. 1 ¶ 39). Plaintiff D2's application for a Special Exception was denied by the County Zoning Hearing Examiner on May 20, 2013. (ECF No. 31).
Plaintiffs filed their complaint on June 14, 2013 asserting eight counts. Count I claims that the stricter regulations of CB-46 and CB-56 burden only " adult entertainment" and therefore violate the Equal Protection Clause. Counts II and VII challenge the zoning regulations as violating the First Amendment, specifically that the regulations lack the required evidentiary support (Count II) and fail to provide adequate alternative avenues of communication (Count VII). Plaintiffs claim that the Special Exception process lacks adequate procedural safeguards (Count III); contains terms that are unconstitutionally vague (Count V); and allows for unbridled administrative discretion (Count VI). Additionally, Count IV claims that the effect of CB-46 and CB-56 constitutes a taking of property for which Plaintiffs have not been provided due process nor just compensation. Finally, Count VIII alleges that the zoning regulations do not provide for an adequate amortization period as required by Maryland law. (ECF No. 1 ¶ ¶ 57-97).
Plaintiffs filed a motion for a preliminary injunction and a temporary restraining order on July 5, 2013. (ECF No. 10). Defendant filed their opposition on July 26, 2013 (ECF No. 15), and Plaintiffs replied on August 22, 2013 (ECF No. 24). Defendant filed a motion to dismiss for failure to state a claim or, in the alternative, for summary judgment, on August 13, 2013. (ECF No. 22). Plaintiffs filed their opposition on September 6, 2013 (ECF No. 28), and Defendant replied on September 11, 2013 (ECF No. 29). The court held a hearing on both motions on September 13, 2013. (ECF No. 30).
II. Standard of Review
A. Preliminary Injunction/Temporary Restraining Order
A preliminary injunction is an extraordinary remedy and will only be granted if the plaintiff clearly " establish[es] that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Plaintiff must prove all four requirements to obtain relief. Id.
B. Motion to Dismiss
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. 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 A. 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) (internal 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 ...