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Baddock v. Baltimore County

Court of Special Appeals of Maryland

November 28, 2018

IRVIN M. BADDOCK, ET AL.
v.
BALTIMORE COUNTY, MARYLAND

          Circuit Court for Baltimore County Case No. 03-C-17-000957

          Meredith, Berger, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Zarnoch, J.

         In Alice in Wonderland, the blue caterpillar appeared content to smoke a hookah by day. Here, we primarily consider whether legislation requiring hookah lounges to close at midnight violates due process and equal protection guaranteed by the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. Finding no Constitutional or other legal infirmity, we uphold the restriction as a valid exercise of Baltimore County's police power.

         BACKGROUND & PROCEDURAL HISTORY

         In May 2014, the Baltimore County Council passed a bill that requires hookah lounges in the County to close between midnight and 6:00 a.m. every day. Specifically, the bill amended the Baltimore County Zoning Regulations ("BCZR") to include a definition of "Hookah Lounge" that restricts hookah lounges' hours of operation. The definition of "Hookah Lounge," codified at Article 1, §101.1 of the BCZR, is as follows:

HOOKAH LOUNGE-Any facility, establishment, or location whose business operation, whether as its primary use or as an ancillary use, includes the smoking of tobacco or other substances through one or more hookah pipes (also commonly referred to as a hookah, waterpipe, shisha or nareghile), including but not limited to establishments known variously as hookah bars, hookah lounges or hookah cafes. A hookah lounge may only operate from 6:00 a.m. to 12:00 midnight.

         This restriction on hours of operation prompted the corporation that operates the Towson Nights hookah lounge ("Towson Nights"), along with the landlord of the Towson Nights premises (collectively, "Appellants"), to challenge the bill on constitutional and other grounds.

         Towson Nights contends that, absent the County ordinance, approximately 90% of its business would take place between 11:00 p.m. and 2:00 a.m.[1] (Before the bill went into effect, Towson Nights stayed open until 2:00 a.m. Sunday through Thursday, and until 3:00 a.m. on Fridays and Saturdays.) Thus, Appellants claim that the restriction on business hours was tantamount to a cessation of the business's lawful use, which should have entitled Towson Nights to an "amortization" period longer than the 45 days given to comply with the act.[2] Appellants further argue: (1) the County's placement of time restrictions in a zoning ordinance is ultra vires; (2) the requirement to close at midnight violates substantive due process; and (3) singling out hookah lounges, but not similar businesses, violates equal protection.

         The bill's constitutionality was first upheld by an administrative law judge, and then, upon a de novo appeal, by the Board of Appeals of Baltimore County.[3] The Circuit Court for Baltimore County affirmed the Board's decision. Appellants timely appealed.

         DISCUSSION

         I. Restricting Hookah Lounges' Hours of Operation Was an Exercise of the County's Police Power.

         Contrary to Appellants' position, Baltimore County did not act ultra vires by enacting time restrictions in a zoning regulation. Here, the provision restricting hours of operation is an exercise of the County's police power and not a zoning law, regardless of whether the restriction is encompassed within the BCZR definition of "hookah lounge." See Piscatelli v. Bd. of Liquor License Comm'rs, 378 Md. 623, 639 (2003) (expressly holding that an act by the General Assembly requiring certain liquor licensees in Baltimore City to cease operations at 2:00 a.m. was "not a zoning law"); id. ("Simply because an enactment . . . affects the activities which are otherwise allowed or disallowed under local zoning regulations, does not make the [] enactment a 'zoning law.'"); see also, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 564 (2012) (A legislature's choice of label does not control whether a provision falls within the legislature's constitutional power); Shaarei Tfiloh Congregation v. Mayor and City Council of Balt., 237 Md.App. 102, 137 (2018) ("[I]n evaluating whether a development fee is a regulatory charge or a tax, the purpose of the enactment governs rather than the legislative label.") (Internal quotation marks omitted) (quoting E. Diversified Props., Inc. v. Montgomery County, 319 Md. 45, 53 (1990)).

         Elsewhere in its ordinance, the Baltimore County Council generally authorized hookah lounges as a permitted use.[4] The partial restriction on hours of operation contained within the definition of "hookah lounge"-bearing all the hallmarks of traditional police power legislation-does not affect whether any particular site within Baltimore County may or may not be operated as a hookah lounge, and is not a zoning law. For this same reason, Appellants' amortization claim is inapplicable: the requirement to close at midnight does not prohibit use as a hookah lounge, and therefore does not render Towson Nights a nonconforming ...


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