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Thana v. Board of License Comm'rs for Charles Cnty.

United States District Court, D. Maryland, Southern Division

May 15, 2015

SUTASINEE THANA, et al., Plaintiffs,

Decided May 14, 2015

For Sutasinee Thana, Michael James Lohman, Thai Seafood & Grill, Inc., trading as Thai Palace & Thai Palace & Lounge, Plaintiffs: Charles Grant Byrd, Jr, Alston and Byrd, Baltimore, MD.

For Board of License Commissioners for Charles County, Maryland, Pamela Smith, Chair, Guy Black, Member, Tomasina Coates, Member, Steven Lowe, Member, William Young, Member, Defendants: Kevin Bock Karpinski, LEAD ATTORNEY, Karpinski, Colaresi & Karp, P.A., Baltimore, MD.


Paul W. Grimm, United States District Judge.

Plaintiffs' liquor license was revoked by a county board of license commissioners after Plaintiffs violated the terms under which the license had been granted. After Plaintiffs unsuccessfully appealed the decision revoking their license to state court, they filed this action in federal district court alleging that the condition that they violated was an unconstitutional restriction on their freedom of speech and seeking preliminary injunctive relief. Because there were significant questions regarding this Court's jurisdiction, the parties were asked to brief that issue prior to consideration of preliminary relief. Defendants seek to dismiss this case on the grounds that it seeks review of a state-court order and therefore is barred by the Rooker--Feldman doctrine. Plaintiffs argue that the doctrine does not apply because they seek relief that was not available from the state court. Because I find that all of Plaintiffs' claims either were directly addressed by the state court or are inextricably intertwined with that court's decision, I dismiss this case under the Rooker--Feldman doctrine for lack of jurisdiction.


For purposes of considering Defendants' Motion, I accept the facts that Plaintiffs alleged in their Complaint as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011); see also Fed.R.Civ.P. 10(c) (" A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes." ). Plaintiffs Sutasinee Thana and Michael James Lohman are part-owners of Plaintiff Thai Seafood & Grill, Inc. t/a Thai Palace & Thai Palace & Lounge (" Thai" ), a restaurant and lounge in Waldorf, Maryland. Compl. ¶ ¶ 4-6, 10, ECF No. 1. Plaintiffs are the holders of a liquor license issued by Defendant Board of License Commissioners for Charles County, Maryland (the " Board" ), which is composed of Defendants Pamela Smith, Guy Black, Tomasina Coates, Steven Lowe, and William Young (collectively, the " Commissioner Defendants" ). Id. ¶ ¶ 4, 7-8.

The history of Plaintiffs' liquor license dates back at least to 2009, when Plaintiffs first sought a license from the board. Id. ¶ 11. Following a hearing, the parties arrived at a consent order (the " First Consent Order" ) on November 12, 2009, id., which allowed the sale of " beer, wine, and whiskey," provided that Thai " will be operated as a family restaurant" between the hours of 11:00 a.m. and 10:00 p.m., and that " there shall be no entertainment other than dinner music from either a radio and/or t.v." without prior approval of the Board, First Consent Order, Compl. Ex. 1, ECF No. 1-3. It appears that Plaintiffs operated within the parameters of the First Consent Order through 2011, when they requested that the First Consent Order be rescinded to allow Plaintiffs to provide entertainment at Thai. See Compl. ¶ 12.

Following a hearing on December 8, 2011, the parties arrived at a further consent order (the " Second Consent Order" ) issued on January 12, 2012 that " approve[d] a modification of the [First] Consent Order," allowing Thai to remain open until 2:00 a.m. on Thursday through Saturday nights and " to offer additional entertainment . . . to include instrumental and acoustical music; Karaoke; [and] DJ music and dancing." Id. ¶ 12; Second Consent Order, Compl. Ex. 2, ECF No. 1-4. As a condition of the grant of a liquor license, the Second Consent Order provided, inter alia, that " the licensees shall not allow an outside promoter to maintain control of any entertainment and shall not offer any 'teenager only' events or 'go-go' entertainment." Second Consent Order 2.[1]

Notwithstanding the terms of the Second Consent Order, Plaintiffs " contracted with various 'go-go' bands to perform at Thai" and Thana " authorized the managers of the bands to market, jointly with her, the events through the use of flyers, posters and internet marketing." Compl. ¶ 13. Plaintiffs allege that " Thana personally approved each piece of marketing material" and " Plaintiffs were joint participants in the marketing of the events." Id. However, many of the posters for events at Thai advertised those events as presented by outside promoters. See Event Advertisements 4 (advertisements including the text " through Rock Promotions," " brought to you by [] On Fire Productions/J& J Productions/Kenya White Productions/Smitty Productions/R.E.D. Productions/Swagg Entertainment," and " Swagg Entertainment, Ezzy Does It Promotions & On Fire Productions presents" ), 5 (" No Questions Band Ent Presents" ), 9 (" Corporate Affairs presents" ), Compl. Ex. 3, ECF No. 1-5.

Upon learning of these events, the Board issued a show cause order on June 20, 2013, requiring Plaintiffs to appear before the Board and show cause as to why the Second Consent Order should not be revoked. Compl. ¶ 14; Show Cause Order, Compl. Ex. 4, ECF No. 1-6. A hearing was held before the Board on December 12, 2013. Compl. ¶ 15. Following the hearing, the Board found that Plaintiffs " allowed numerous outside promoters to maintain control of the entertainment at Thai" and " hosted numerous events that included 'go go' entertainment," in violation of the Second Consent Order. Board Decision and Order 3-4, Compl. Ex. 5, ECF No. 1-7. Accordingly, the Board revoked both the First and Second Consent Orders as well as the liquor license it had issued to Plaintiffs. Id. at 4.

Plaintiffs sought review of the Board's decision in the Circuit Court for Charles County. Compl. ¶ 16. On October 15, 2014, in a thorough and thoughtful opinion, the circuit court affirmed the findings of the Board and the revocation of the Second Consent Order,[2] In re Thana, No. 08-C-14-000298 (Md. Cir. Ct. P.G. Cnty. Oct. 15, 2014), Compl. Ex. 6, ECF No. 1-8, and found that the Board's factual findings were supported by substantial evidence, id. at 5-14. Crucially, the Circuit Court for Charles County expressly considered Plaintiffs' constitutional challenge to the Second Consent Order that " the restriction on go-go entertainment violates the Due Process Clause of the Fourteenth Amendment . . . because the Board has no rational basis to prohibit go-go entertainment while allowing all other forms of musical entertainment," and that the restriction " is unconstitutionally void for vagueness." Id. at 14-15.[3] In rejecting those challenges, the court held that because Plaintiffs entered into the Second Consent Order voluntarily, they " are now barred from raising constitutional challenges to the restrictions to which they consented." Id. at 15 (citing Bd. of Liquor License Comm'rs v. Fells Point Café, Inc., 344 Md. 120, 685 A.2d 772 (Md. 1996)).[4] And in any event, the court found that the restrictions were " reasonable and based on a legitimate purpose" in light of Thai's " long history in Charles County for being a disturbance to the surrounding community" and " a connection between go-go entertainment and promoters and [] criminal activity that occurred at Thai Palace from 2007 to 2008" before the parties entered into the First Consent Order. Id. at 18.

Plaintiffs filed their Complaint in this Court on November 5, 2014, before the time to appeal the circuit court's ruling to the Court of Special Appeals had expired. See Md. Rule 8-202(a). Plaintiffs' Complaint set forth a single count alleging that the restriction on go-go entertainment in the Second Consent Order violated Plaintiffs' First Amendment rights to free speech and seeking, in essence, a declaratory judgment finding that the condition--and the revocation of the Second Consent Order based upon its violation--ran afoul of the First Amendment; an injunction preventing the Board from enforcing the restriction or revoking the Second Consent Order or Plaintiffs' liquor license; and an award of monetary damages. Compl.

At the same time, Plaintiffs also filed a Motion for Temporary Restraining Order [" TRO" ], Preliminary Injunction, and Permanent Injunction, ECF No. 2, asking me to enjoin the Board from revoking the Second Consent Order on the grounds that the deprivation of Plaintiffs' right to host go-go entertainment was, itself, an irreparable harm and Plaintiffs were likely to succeed on the merits of their First Amendment claim. The next day, November 6, 2014, I denied Plaintiffs' motion for a TRO in a Letter Order finding, inter alia, that it was far from clear that Plaintiffs were likely to succeed on the merits and noting that this Court might lack jurisdiction altogether under the Rooker--Feldman doctrine. Letter Order, ECF No. 5. Because Plaintiffs' motion for a preliminary ...

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