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Nico Enterprises, Inc. v. Prince George's County

United States District Court, D. Maryland

May 13, 2016

NICO ENTERPRISES, INC., et al.
v.
PRINCE GEORGE’S COUNTY, MARYLAND

MEMORANDUM OPINION

Deborah K. Chasanow United States District Judge

Presently pending and ready for resolution in this case raising constitutional challenges to zoning ordinances is a motion to dismiss or, in the alternative, for summary judgment filed by Defendant Prince George’s County (the “County”). (ECF No. 7). Also pending is a motion for a temporary restraining order and preliminary injunction filed by Plaintiff Nico Enterprises, Inc. (“Plaintiff”). (ECF No. 10).[1] The relevant issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the County’s motion will be granted. Plaintiff’s motion will be denied as moot.

I. Background

This action is one of a series of cases brought by adult entertainment establishments located within the County challenging two recent County ordinances (CB-46-2010 and CB-56-2011) restricting adult entertainment businesses (the “ordinances”). A recent opinion summarized the ordinances’ restrictions:

[CB-46] banned “adult entertainment” businesses from being located anywhere in the County but Zone I-2, an industrial zone. §§ 27-461, 473. 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.
CB-56 was adopted by the County Council on November 15, 2011. . . . “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. CB-56 eliminated the May 1, 2013 deadline to conform. 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.

Maages I, 4 F.Supp.3d at 759 (citations omitted). CB-56 contains the current definition of adult entertainment at issue here:

(7.1) Adult Entertainment: Adult Entertainment means any 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 with the intent to sexually arouse or excite another person; 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.

(ECF No. 7-2, at 24).

On September 21, 2015, Plaintiff filed a complaint seeking a declaratory judgment that CB-46 and CB-56 are unconstitutional under the First and Fourteenth Amendments. (ECF No. 1).

Specifically, the complaint alleges:

a. The ordinance unconstitutionally abridges freedom of speech and expression and imposes an impermissible restraint on constitutionally protected expression;
b. The ordinance is irrational, arbitrary, and capricious because it does not further a substantial governmental interest;
c. The ordinance is not narrowly tailored to further any governmental interest substantial or otherwise;
d. The ordinance was enacted without relevant empirical information to support it;
e. The ordinance was adopted without any valid evidence upon which the County could rely to show adult entertainment in general and Plaintiff’s business in particular cause adverse secondary effects;
f. The laws were adopted without any evidence that the County’s existing zoning law was inadequate or insufficient to address any perceived adverse secondary effects;
g. The ordinance does not all[ow] ample alternative avenues of communication;
h. The vagueness and subjective definitions of the ordinance would lead human beings of common intelligence to necessarily guess as to the meaning of these ...

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