Legend Night Club v. Dennis Miller

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:05-cv-02138-MJG Copies to all parties and the district court/agency. [998527115] [09-1540]

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PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LEGEND NIGHT CLUB,
Plaintiff-Appellee,
and
INTERNATIONAL NITE LIFE
ENTERPRISES, INCORPORATED, trading
as The Classic III Supper Club,
a/k/a The Classics,
Plaintiff,
v.
DENNIS B. MILLER; EARL J.
HOWARD; FRANKLIN D. JACKSON;
NAM K. KIM; SHAIHI MWALIMU;
STATE OF MARYLAND,
Defendants-Appellants,
and
ROBERT EHRLICH; PRINCE GEORGE’S
COUNTY GOVERNMENT; PRINCE
GEORGE’S COUNTY, MARYLAND;
NORMA LINDSAY,
Defendants.





No. 09-1540



Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(1:05-cv-02138-MJG)
Argued: September 21, 2010
Decided: February 17, 2011

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Before WYNN, Circuit Judge, HAMILTON, Senior Circuit
Judge, and Mark S. DAVIS, United States District Judge
for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Wynn wrote the majority opinion, in which Judge Davis joined. Senior Judge Hamilton wrote a separate opinion concurring in part and
dissenting in part.

COUNSEL
ARGUED: Matthew John Fader, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellants. Jimmy A. Bell, LAW OFFICE OF JIMMY A.
BELL, PC, Bowie, Maryland, for Appellee. ON BRIEF:
Douglas F. Gansler, Attorney General of Maryland, Charles
J. Butler, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellants.

OPINION
WYNN, Circuit Judge:
"Under the doctrine of overbreadth, a statute violates the
First Amendment it if prohibits a substantial amount of protected expression." PSINet, Inc. v. Chapman, 362 F.3d 227,
234 (4th Cir. 2004). Defendants appeal a permanent injunction prohibiting the enforcement of a Maryland statute due to
its overbreadth. We conclude that the statute—which limits
the range of permissible conduct, attire, and entertainment at
establishments licensed to serve alcoholic beverages—prohibits a broad swath of expression protected by the

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First Amendment and is not susceptible to a limiting construction. Accordingly, we affirm the permanent injunction prohibiting enforcement of the statute.
I.
Plaintiffs The Legend Night Club ("The Legend") and
International Nite Life Enterprises, Inc. ("The Classics") operate adult entertainment establishments in Prince George’s
County, Maryland. Plaintiffs are licensed by the Prince
George’s County Board of License Commissioners to serve
alcoholic beverages at these establishments.
In 2005, Plaintiffs filed separate complaints challenging the
constitutionality of statutory amendments, which, if enforced,
would prohibit them from providing both alcoholic beverages
and adult entertainment. The complaint filed by The Legend
named as defendants the State of Maryland, Prince George’s
County, the Prince George’s County Board of License Commissioners, Governor Robert Ehrlich, and the individual
members of the Prince George’s County Board of License
Commissioners (Franklin D. Jackson, Earl J. Howard, Nam
K. Kim, Dennis B. Miller, and Shaihi Mwalimu). The Classics’ complaint included the same entities and individuals as
defendants, with the exception of Governor Ehrlich. The Classics’ complaint also added as a defendant Norma Lindsay, the
Chief Liquor Inspector for the Board of License Commissioners. In October 2005, based on the joint stipulations of the
parties, the district court dismissed the claims against Governor Ehrlich and the State of Maryland. The State later intervened to defend the statute’s constitutionality under 28 U.S.C.
§ 2403(b).
At issue in both cases was a statutory amendment that
added Prince George’s County to a list of jurisdictions in
which certain attire and conduct is prohibited in establishments licensed to sell alcoholic beverages. Specifically, the
statute—effective on October 1, 2005—forbids a person from:

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(1) Be[ing] employed or used in the sale or service
of alcoholic beverages in or upon the licensed premises while the person is unclothed or in attire, costume or clothing so as to expose to view any portion
of the female breast below the top of the areola or of
any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals;
(2) Be[ing] employed or act[ing] as a hostess or act[ing] in a similar-type capacity to mingle with the
patrons while the hostess or person acting in a
similar-type capacity is unclothed or in attire, costume or clothing as described in paragraph (1) of this
subsection;
(3) Encourag[ing] or permit[ting] any person on the
licensed premises to touch, caress or fondle the
breasts, buttocks, anus or genitals of any other person; or
(4) Permit[ting] any employee or person to wear or
use any device or covering exposed to view, which
simulates the breast, genitals, anus, pubic hair or any
portion of it.
Md. Code, Art. 2B § 10-405(c) (2005). The statute also
restricts certain entertainment, specifically prohibiting a person from:
(1) Permit[ting] any person to perform acts of or acts
which simulate:
(i) The act of sexual intercourse, masturbation,
sodomy, bestiality, oral copulation, flagellation or
any sexual acts which are prohibited by law;
(ii) The touching, caressing or fondling of the
breast, buttocks, anus or genitals; or

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(iii) The display of the pubic hair, anus, vulva or
genitals;
(2) Permit[ting] any entertainer whose breasts or buttocks are exposed (subject to the restrictions of paragraph (1) of this subsection) to perform closer than
six feet from the nearest patron; or
(3) Permit[ting] any person to use artificial devices
or inanimate objects to depict, perform or simulate
any activity prohibited by paragraph (1) of this subsection.
Id. § 10-405(d).
Under the statute, an establishment found engaging in prohibited activities would have its license to sell alcoholic beverages revoked. Id. § 10-405(b) (2005) ("Any license issued
under the provisions of this article shall be revoked if . . . any
of the activities listed in this section are found to occur on any
premises or location for which the license was issued.").
The statute also exempts, under a grandfather clause, certain long-term license holders from potential license revocation. That clause provides an exemption for:
a current alcoholic beverages license holder that currently conducts an activity that is made unlawful by
this Act only if the license holder:
(a) received approval from the Board to conduct the
activity on or before August 15, 1981; and
(b) has owned the licensed premises continuously
since September 1, 1981.
2005 Md. Laws 262 § 2.

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Plaintiffs contend that the statute as amended is overbroad
in violation of the First Amendment. Plaintiffs also contend
that the grandfather clause under the statute was intentionally
drafted to provide an exemption for the Ebony Inn, an establishment owned by a former state senator. As such, Plaintiffs
argue that the grandfather clause violated the Equal Protection
Clause of the Fourteenth Amendment and Article 24 of the
Maryland Declaration of Rights.
Plaintiffs sought a prohibitory injunction and a declaration
that the statute as amended was unconstitutional. On September 30, 2005, the district court entered a temporary restraining
order enjoining Defendants from enforcing the statute as
amended. On March 27, 2006, the district court issued a preliminary injunction forbidding enforcement of the statute. The
district court then stayed and administratively closed the cases
on July 17, 2006, recognizing that they "may be affected, and
possibly mooted, by action in the next session of the Maryland Legislature." By letter of December 20, 2007, the State
of Maryland advised the district court that although "[t]he
Court issued the stay to provide the General Assembly an
opportunity to amend the statute at issue in this litigation, . . .
[d]uring the 2007 Legislative Session, the General Assembly
declined to take action on this statute." The State of Maryland
also moved to reopen the cases as expressly allowed by the
district court’s orders. The district court granted the State’s
motion on April 2, 2008 and, in the same order, consolidated
The Legend’s and The Classics’ cases.
After a bench trial, the district court issued a written opinion on April 1, 2009. The court held that the statute as
amended was unconstitutionally overbroad and not readily
susceptible to a limiting construction. The court further held
that the grandfather clause violated the Equal Protection
Clause and declined to sever the grandfather clause from the
statute. Accordingly, on April 30, 2009, the district court
entered a permanent injunction stating that "[n]either Defendant Prince George’s County Board of License Commission-

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ers nor any other person or entity shall take action to close
Plaintiffs’ premises, or to suspend or revoke their licenses,
based upon any alleged violation of Md. Ann. Code, Article
2B, Section 10-405, as amended by H.B. 1133." The State of
Maryland and individual defendants Franklin D. Jackson, Earl
J. Howard, Nam K. Kim, Dennis B. Miller, and Shaihi
Mwalimu (collectively "Defendants") appealed.
II.
Defendants first argue that the district court erred in finding
the statute overbroad because there was no evidence that the
law would be applied unconstitutionally. They further contend
that even if the statute is facially overbroad, it is susceptible
to a limiting construction capable of ensuring its constitutionality.
The district court issued a permanent injunction after concluding that the statute was unconstitutionally overbroad.
Under "well-established principles of equity," a plaintiff seeking a permanent injunction must demonstrate:
(1) that it has suffered an irreparable injury; (2) that
remedies available at law, such as monetary damages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships
between the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest
would not be disserved by a permanent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
We review the grant of a permanent injunction for an abuse
of discretion. Virginia Soc’y for Human Life, Inc. v. Fed.
Election Comm’n, 263 F.3d 379, 392 (4th Cir. 2001). However, the "underlying factual findings are reviewed for clear
error, and legal conclusions are reviewed de novo." Id.
Because the district court issued a permanent injunction after
concluding that the statute was unconstitutionally overbroad,

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we begin our inquiry with a de novo review of the district
court’s holding.
Under the overbreadth doctrine, a plaintiff
whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens
others not before the court—those who desire to
engage in legally protected expression but who may
refrain from doing so rather than risk prosecution or
undertake to have the law declared partially invalid.
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985).
Consequently, even if Plaintiffs have no intention of offering
artistic performances at their establishments, they are entitled
to mount the instant facial challenge to the statute to protect
the rights of those who wish to do so. Giovani Carandola,
Ltd. v. Bason, 303 F.3d 507, 512 (4th Cir. 2002) ("Carandola
I")("[T]he overbreadth doctrine allows Carandola to assert the
First Amendment rights of those who do wish to ‘present or
act’ in a ballet or other theatrical production, even if Carandola does not.").
Plaintiffs argue that the statute is unconstitutionally overbroad because it "limits activity which can include a ballet, a
Shakespearian play, and other mainstream productions" of
artistic merit. Brief of Appellee at 18. Because the prohibition
against statutory enforcement that accompanies a finding of
overbreadth constitutes "strong medicine," the Supreme Court
has counseled lower courts to declare statutes facially overbroad "sparingly and only as a last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Accordingly, "where
conduct and not merely speech is involved, . . . the overbreadth of a statute must not only be real, but substantial as
well, judged in relation to the statute’s plainly legitimate
sweep." Id. at 615; see also New York v. Ferber, 458 U.S.
747, 771 (1982) ("[A] law should not be invalidated for over-

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breadth unless it reaches a substantial number of impermissible applications . . . .").
The purpose for which legislation is adopted dictates the
level of scrutiny applied to ascertain whether the law exceeds
its "plainly legitimate sweep." "If the regulation was adopted
to burden disfavored viewpoints or modes of expression, a
court applies strict scrutiny." Carandola I, 303 F.3d at 512. In
contrast, content-neutral statutes receive intermediate scrutiny. See City of Los Angeles v. Alameda Books, Inc., 535 U.S.
425, 434 (2002). We have previously noted that
measures to regulate sexually explicit entertainment
outside the home receive intermediate scrutiny if
they are not premised on a desire to suppress the
content of such entertainment, but rather to address
the harmful secondary effects of such entertainment:
higher crime rates and lower property values, and
unwanted interactions between patrons and entertainers, such as public sexual conduct, sexual assault,
and prostitution.
Carandola I, 303 F.3d at 513 (citations omitted).
Defendants contend that the statute was amended to address
the secondary effects of presenting nude dancing in establishments that serve alcohol. Brief of Appellant at 8. Nothing in
the amendment itself, however, indicates the motivation for
its adoption. Cf. City of Erie v. Pap’s A.M., 529 U.S. 277, 290
(2000) (plurality opinion) (noting that the preamble to the
ordinance at issue stated purpose of prohibiting entertainment
that "provid[es] an atmosphere conducive to violence, sexual
harassment, public intoxication, prostitution, the spread of
sexually transmitted diseases and other deleterious effects").
Nor did Defendants, for example, present any studies relied
upon by the Maryland General Assembly to establish the secondary effects supposedly targeted by the amendment.

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Instead, Defendants ask this Court to infer legislative purpose from the fact that letters from various municipalities in
support of the amendment indicated a general concern for certain secondary effects. However, we will not impute the
motives of entities lobbying for legislation to the General
Assembly itself. See Circuit City Stores, Inc. v. Adams, 532
U.S. 105, 120 (2001) (stating that the Court "ought not attribute to Congress an official purpose based on the motives of
a particular group that lobbied for or against a certain proposal"). We also decline Defendants’ invitation to infer that
because a triple-homicide occurred near a strip club before the
adoption of the amendment, the General Assembly intended,
with the amendment, to reduce such violence—particularly
when Defendants offered no evidence that the legislature even
considered this particular incident in conjunction with the
amendment.
When considering a substantially similar statute that also
lacked evidence of legislative intent in Carandola I, this
Court applied intermediate scrutiny. See Carandola I, 303
F.3d at 514 ("Even though the Commission has submitted no
direct evidence of legislative motive, we believe that precedent requires us to evaluate the challenged restrictions as
content-neutral provisions aimed at secondary effects."). In
doing so, we noted that the challenged statute was part of a
larger body of alcohol control law "enacted to prevent illegal
and disorderly conduct that may arise where alcohol is served
to the public." Id. at 514-15 (citation omitted).
The statute at issue here is similarly part of a broad article
in the Maryland Code regulating the sale of alcohol "for the
protection, health, welfare and safety" of the people of Maryland. See Md. Code, Art. 2B § 1-101 (2005); see also State v.
Petrushansky, 183 Md. 67, 71, 36 A.2d 533, 535 (1944) (stating that statutory interpretation of a provision in Article 2B
requires the court to consider all parts of the Article together,
"as they form part of a general system"). Moreover, Article
2B specifically contemplates license revocation when "neces-

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sary to promote the peace or safety of the community in
which the place of business is situated." Md. Code, Art. 2B,
§ 10-401 (2005). Thus, as in Carandola I, we conclude that
at least one purpose of the statute was to address the secondary effects resulting from the combination of alcohol and
nude dancing. "Within the limited field of regulations on public exhibitions of adult entertainment, this suffices for us to
treat the [statute] as content-neutral and so subject only to
intermediate scrutiny." Carandola I, 303 F.3d at 515 (citation
omitted).
To withstand intermediate scrutiny, the challenged regulation must "materially advance[ ] an important or substantial
interest by redressing past harms or preventing future ones."
Satellite Broad. & Commc’ns Ass’n v. FCC, 275 F.3d 337,
356 (4th Cir. 2001). Again, Defendants contend that the statute was amended to address the secondary effects arising
from the combination of adult entertainment and alcohol consumption. As noted by the district court, however, "Defendants have not produced evidence of harmful secondary
effects in Prince George’s County, Maryland."
"This failure might not pose a problem if the challenged
restrictions applied only to bars and clubs that present nude or
topless dancing." Carandola I, 303 F.3d at 516. "Such entertainment has ‘a long history of spawning deleterious effects,’
including ‘prostitution and the criminal abuse and exploitation
of young women,’ and in most cases a city or state need carry
only a minimal burden to demonstrate its interest in regulation
of such activity." Id. (quoting Steakhouse, Inc. v. City of
Raleigh, 166 F.3d 634, 637 (4th Cir. 1999)). However, even
assuming arguendo that the statute materially advances an
important and current governmental interest, the nature of
Plaintiffs’ overbreadth challenge compels us to consider
whether the statute adversely affects a substantial amount of
protected speech beyond that restricted under the statute’s
"plainly legitimate sweep." Id. at 515; see also Satellite
Broad. & Commc’ns Ass’n, 275 F.3d at 356 ("If the regulation

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materially advances some important or substantial interest, we
then . . . ask whether the regulation is narrowly tailored to
serve that interest."); Shelton v. Tucker, 364 U.S. 479, 488
(1960) ("[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by
means that broadly stifle fundamental personal liberties when
the end can be more narrowly achieved.").
The statute imposes restrictions that extend well beyond
strip clubs and other establishments primarily offering adult
entertainment. Like the regulation at issue in Carandola I,
"the plain language of the restrictions prohibits on licensed
premises any entertainment that ‘simulate[s]’ sexual behavior,
even if performers are fully clothed or covered, and even if
the conduct is integral to the production—for example, a
political satire, a Shakespeare play depicting young love, or
a drama depicting the horrors of rape." Carandola I, 303 F.3d
at 516. These restrictions "have the same prohibitory effect on
much non-erotic dance—such as a ballet in which one dancer
touches another’s buttock during a lift—and all nudity or simulated nudity, however brief, in productions with clear artistic
merit—such as the Pulitzer Prize winning play, Wit." Id. We
recognize that "[e]xpressive conduct enjoys less protection
than does pure speech and restrictions on its exercise are more
likely to be constitutionally permissible." Steakhouse, 166
F.3d at 637 (citation omitted). However, a statute prohibiting
such a broad swath of expressive conduct cannot pass constitutional muster.
Defendants do not argue that restricted artistic performances produce the secondary effects purportedly targeted by
the statute. Instead, they argue that the statute is immune from
this overbreadth challenge because no establishment licensed
to serve alcohol in Prince George’s County presents productions of artistic merit that would fall within the statute’s
ambit. "However, where the statute unquestionably attaches
sanctions to protected conduct, the likelihood that the statute
will deter that conduct is ordinarily sufficiently great to justify

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an overbreadth attack." City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 n.19 (1984) (citation
omitted). The Constitution provides protection "from overbroad laws that chill speech within the First Amendment’s
vast and privileged sphere." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002). As noted by the district court,
the statute "would prohibit any existing, or new, liquor
licensee from starting to present serious artistic performers
that would violate the restrictions." Thus, as in Carandola I,
we conclude that the statute at issue reaches a substantial
number of impermissible applications.
Defendants attempt to distinguish our holding in Carandola
I on the basis that, in that case, the Commission charged with
enforcing the challenged regulation conceded that the law
would reach artistic productions at a number of venues
licensed to serve alcohol. In contrast, Defendants made no
such concessions here and instead argue, based on the history
of the statute’s enforcement, that the statute would be applied
only to adult entertainment establishments. Essentially,
Defendants implore this Court to ignore the plain language of
the statute and rely instead on the government’s assurances
that the statute would not be unconstitutionally enforced. In
support of this plea, Defendants submitted affidavits from
enforcement authorities in nine counties where the statute currently applies, each stating that in the relevant jurisdiction,
§ 10-405 has never been enforced against an establishment
offering productions of clear artistic merit. Nevertheless, no
limitation on the scope of the sweeping prohibitions exists in
the statute.
Generally, however, we will not strike down a statute as
facially overbroad if its constitutionality can be preserved
through a "limiting construction" or "partial invalidation"
capable of "remov[ing] the seeming threat or deterrence to
constitutionally protected expression." Broadrick, 413 U.S. at
613; see also Carandola I, 303 F.3d at 512. Indeed, as a general principle "every reasonable construction must be resorted

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to, in order to save a statute from unconstitutionality."
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575 (1988)(quoting
Hooper v. California, 155 U.S. 648, 657 (1895)). That said,
we will not alter a state statute unless the regulation is "readily susceptible" to the proffered construction. Giovani Carandola, Ltd. v. Fox, 470 F.3d 1074, 1084 (4th Cir. 2006)
("Carandola II"); see also Va. Soc. for Human Life, Inc. v.
Caldwell, 152 F.3d 268, 270 (4th Cir. 1998) (explaining that
"federal courts are without power to adopt a narrowing construction of a state statute unless such a construction is reasonable and readily apparent" (quoting Boos v. Barry, 485
U.S. 312, 330-31 (1988)(emphasis added)). Indeed, we must
be careful not to encroach upon the domain of a state legislature by "rewrit[ing] a law to conform it to constitutional
requirements." PSINet, 362 F.3d at 236 (quoting Reno v. Am.
Civil Liberties Union, 521 U.S. 844, 884-85 (1997)). Therefore "narrowing constructions are only appropriate when ‘the
text or other source of congressional intent’ identifies a clear
line that a court could draw." Id. (quoting Reno, 521 U.S. at
884).
While Defendants argue that the statute has been, and will
be, enforced only against adult entertainment establishments,
they do not propose a way to read the statute such that it
would apply only to those licensees. A history of limited
enforcement is insufficient to establish the susceptibility of a
statute to a limiting construction, particularly when the language of the statute itself lacks any limitation on the scope of
enforcement. See Newsom ex rel. Newsom v. Albemarle Cnty.
Sch. Bd., 354 F.3d 249, 260 n.8 (4th Cir. 2003) (noting that
even though school dress code had been enforced only to ban
"images of gunmen aiming high-powered firearms," this was
insufficient to establish a limiting construction when the dress
code did "not even remotely suggest" such a limitation); see
also United States v. Stevens, 130 S. Ct. 1577, 1591 (2010)
("[T]he First Amendment protects against the Government; it
does not leave us at the mercy of the noblesse oblige. We

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would not uphold an unconstitutional statute merely because
the Government promised to use it responsibly."). Indeed, the
language of the statute here suggests no limit whatsoever to
its enforcement, and the Defendants’ failure to "even suggest
a possible limiting construction" is consistent with this
Court’s conclusion that the statute is not readily susceptible to
a limiting construction. Carandola II, 470 F.3d at 1078 (noting absence of suggested limiting construction in Carandola
I court’s finding that statute was not readily susceptible to
limiting construction).
The Maryland General Assembly could, of course, appropriately limit the statute. Notably, to rescue the statute at issue
in Carandola I from unconstitutional overbreadth, the North
Carolina legislature amended it to include a "carve-out" provision stating that:
[t]his section does not apply to persons operating
theaters, concert halls, art centers, museums, or similar establishments that are primarily devoted to the
arts or theatrical performances, when the performances that are presented are expressing matters of
serious literary, artistic, scientific, or political value.
N.C. Gen. Stat. § 18B-1005.1(c) (2005); see Carandola II,
470 F.3d at 1084; Imaginary Images, Inc. v. Evans, 612 F.3d
736, 751 (4th Cir. 2010) ("Virginia’s prohibition on mixed
beverages at venues like Papermoon is within the statutes’
legitimate sweep. And cultural venues offering ‘matters of
serious literary, artistic, scientific, or political value’ are properly exempted."). However, where a statute requires an
amendment to pass constitutional muster, we cannot usurp the
legislature’s role and rewrite it. See PSINet, 362 F.3d at 236.
The dissent argues that subsection (d) of the statute may be
excised, leaving the remainder of the statute, including subsection (c), fully operative. However, to make it fully operative, in addition to severing subsection (d), the dissent also

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imposes a narrowing construction on subsection (c) that, like
excision of subsection (d), was never suggested by Defendants. While it might be argued that the Maryland Code’s
general severability provision and the "[s]eparability" provision in its alcoholic beverages article suggest that partial
invalidation should be attempted here, Md. Code, Art. 1 § 23,
Md. Code, Art. 2B § 1-104, the dissent relies upon a complex
combination of unsolicited partial invalidation and narrowing
construction in an effort to save the statute. These efforts to
save the statute stand in stark contrast to the inaction of the
Maryland legislature. After the district court issued its Preliminary Injunction Order prohibiting enforcement of the statute
at issue, it stayed the proceedings to give the Maryland legislature an opportunity to amend the statute. However, the legislature "declined" to take action on this statute in the 2007
session, and failed to take any action during the 2008 and
2009 sessions before the district court’s permanent injunction
of April 2009. Like the Supreme Court,
we are wary of legislatures who would rely on our
intervention, for "[i]t would certainly be dangerous
if the legislature could set a net large enough to catch
all possible offenders, and leave it to the courts to
step inside" to announce to whom the statute may be
applied. United States v. Reese, 92 U.S. 214, 221
(1876). "This would, to some extent, substitute the
judicial for the legislative department of the government." Ibid.
Ayotte v. Planned Parenthood of Northern New Eng., 546
U.S. 320, 330 (2006).
The dissent’s efforts to save the statute would usurp the
legislature’s role, rewrite the statute, and leave it without the
important carve-out provision for matters of literary, artistic,
scientific, or political value relied upon by this Court in Carandola II, 470 F.3d at 1084-85, and Imaginary Images, 612
F.3d at 751.

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In summary, because we hold that the statute as amended
(1) prohibits a substantial amount of expression that is protected by the First Amendment and (2) is not readily susceptible to a limiting construction, we conclude that the district
court did not err in its determination that the statute was
unconstitutionally overbroad.
Given that conclusion, while the district court did not discuss the test for granting a permanent injunction, we discern
no abuse of discretion in the court’s decision to issue the
injunction. As to irreparable injury, it is well established that
"[t]he loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable
injury." Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality
opinion) (citation omitted). Further, the threatened injury in
this case (i.e., license revocation) constituted "direct penalization, as opposed to incidental inhibition" of First Amendment
rights, thus making it the sort that could not be remedied
absent an injunction. Hohe v. Casey, 868 F.2d 69, 72-73 (3d
Cir. 1989) (quoting Cate v. Oldham, 707 F.2d 1176, 1188
(11th Cir. 1983). Moreover, monetary damages are inadequate
to compensate for the loss of First Amendment freedoms.
Joelner v. Vill. of Wash. Park, 378 F.3d 613, 620 (7th Cir.
2004). Regarding the third requirement for injunctive relief,
the threatened injury to Plaintiffs easily outweighs whatever
burden the injunction may impose. At a minimum, each Plaintiff faces a loss of its license coupled with a loss of valuable
business opportunities. Carandola I, 303 F.3d at 521. By contrast, the State of Maryland is in no way harmed by issuance
of an injunction that prevents the state from enforcing unconstitutional restrictions. See Joelner, 378 F.3d at 620 (questioning the "harm to a municipality when it is prevented from
enforcing an unconstitutional statute because it is always in
the public interest to protect First Amendment liberties")
(quotation omitted). And fourth, upholding constitutional
rights is in the public interest. Carandola I, 303 F.3d at 521.
Because each of the factors that we consider when deciding
whether to grant injunctive relief weighs in favor of Plaintiffs,

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we conclude that the district court did not abuse its discretion
by issuing a permanent injunction against the enforcement of
the statute.
III.
Defendants also argue that the district court erred in concluding that the statute’s grandfather clause, exempting certain long-term licensees from the statute’s ambit, violated the
Equal Protection Clause of the Fourteenth Amendment.
Because the statute is facially overbroad, its enforcement is
"totally forbidden." Carandola I, 303 F.3d at 512 (citing
Broadrick, 413 U.S. at 613, for the proposition that if a statute
is overbroad and cannot be rendered constitutional through a
limiting construction or partial invalidation, "any enforcement" thereof is "totally forbidden"). We therefore do not
need to address this exemption.
IV.
In conclusion, we affirm the district court’s permanent
injunction against the enforcement of Md. Code Art. 2B,
§ 10-405 as amended by H.B. 1133.
AFFIRMED
HAMILTON, Senior Circuit Judge, concurring in part and
dissenting in part:
The majority is correct in holding that the intermediate
level of scrutiny applies to test the constitutionality of Maryland Code, Article 2B, § 10-405(c)-(d), as amended by 2005
Md. Laws ch. 262, (the Challenged Statute) under the First
Amendment to the United States Constitution, U.S. Const.
amend I. Applying the intermediate level of scrutiny, subsection (d) of the Challenged Statute reaches a substantial number of impermissible applications. However, because
subsection (d) is severable from the remaining provisions of

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the Challenged Statute, the Challenged Statute should be partially invalidated, rather than facially invalidated, leaving its
remaining provisions intact. Also, I would reach the Equal
Protection Clause challenge against the grandfather clause,
2005 Md. Laws ch. 262, § 2 (the Grandfather Clause), hold
the Grandfather Clause unconstitutional as a violation of the
Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution, U.S. Const. amend. XIV, § 1, and
sever the Grandfather Clause from the Challenged Statute.
Accordingly, I concur in part and dissent in part.
I
A
"Article 2B of the Maryland Code ("Article 2B") comprehensively regulates the manufacture, sale, distribution, transportation and storage of alcoholic beverages in [Maryland]."
Paek v. Prince George’s County Bd. of License Comm’rs, 851
A.2d 540, 544 (Md. 2004). "The stated purpose of Article 2B
is ‘to obtain respect and obedience to law and to foster and
promote temperance.’" Id. (quoting Md. Code, Art. 2B, § 1101(a)(1)). Article 2B further states:
It is the legislative intent that the policy will be carried out in the best public interest by empowering
. . . the various local boards of license commissioners and liquor control boards . . . with sufficient
authority to administer and enforce the provisions of
this article . . . . The restrictions, regulations, provisions and penalties contained in this article are for
the protection, health, welfare and safety of the people of this State.
Md. Code, Art. 2B, § 1-101(a)(2)-(3). In relevant part, Article
2B, § 10-405(b), provides that an establishment’s liquor
license shall be revoked if any of the activities listed in subsection (c) of the Challenged Statute, pertaining to restrictions

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on attire and conduct, or subsection (d) of the Challenged
Statute, pertaining to restrictions on entertainment, occur on
the licensed premises.
Subsection (c) of the Challenged Statute provides:
With respect to attire and conduct, a person may not:
(1) Be employed or used in the sale or service of
alcoholic beverages in or upon the licensed premises
while the person is unclothed or in attire, costume or
clothing so as to expose to view any portion of the
female breast below the top of the areola or of any
portion of the pubic hair, anus, cleft of the buttocks,
vulva or genitals;
(2) Be employed or act as a hostess or act in a
similar-type capacity to mingle with the patrons
while the hostess or person acting in a similar-type
capacity is unclothed or in attire, costume or clothing
as described in paragraph (1) of this subsection;
(3) Encourage or permit any person on the licensed
premises to touch, caress or fondle the breasts, buttocks, anus or genitals of any other person; or
(4) Permit any employee or person to wear or use
any device or covering exposed to view, which simulates the breast, genitals, anus, pubic hair or any
portion of it.
Md. Code, Art. 2B, § 10-405(c).
Subsection (d) of the Challenged Statute provides:
With respect to entertainment provided, a person
may not:

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(1) Permit any person to perform acts of or acts
which simulate:
(i) The act of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any
sexual acts which are prohibited by law;
(ii) The touching, caressing or fondling of the breast,
buttocks, anus or genitals; or
(iii) The display of the pubic hair, anus, vulva or
genitals;
(2) Permit any entertainer whose breasts or buttocks
are exposed (subject to the restrictions of paragraph
(1) of this subsection) to perform closer than six feet
from the nearest patron; or
(3) Permit any person to use artificial devices or
inanimate objects to depict, perform or simulate any
activity prohibited by paragraph (1) of this subsection.
Md. Code, Art. 2B, § 10-405(d).
B
"Pursuant to the overbreadth doctrine, a party may challenge a statute on its face because it also threatens others not
before the court—those who desire to engage in legally protected expression but who may refrain from doing so rather
than risk prosecution or undertake to have the law declared
partially invalid." Giovani Carandola, Ltd. v. Fox (Carandola
II), 470 F.3d 1074, 1081 (4th Cir. 2006) (internal quotation
marks omitted). Where, as here, "conduct and not merely
speech is involved[,] the overbreadth of a statute must not
only be real, but substantial as well, judged in relation to the
statute’s plainly legitimate sweep." Id. (internal quotation

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marks, alteration marks, and ellipses omitted). "A law should
not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications," and "[a] court
should invoke a limiting construction or employ partial invalidation before resorting to a finding of facial overbreadth." Id.
(ellipses, internal quotation marks, and alteration marks omitted). As the Supreme Court has explained:
Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution
to the problem, severing any problematic portions
while leaving the remainder intact. Because the
unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining
provisions, the normal rule is that partial, rather than
facial, invalidation is the required course.
Free Enter. Fund v. Public Co. Accounting Oversight Bd.,
130 S. Ct. 3138, 3161 (2010) (internal quotation marks, citations, and alteration marks omitted).
The intermediate level of scrutiny applies to content-neutral
restrictions on speech or other forms of expression protected
by the First Amendment aimed at ameliorating the harmful
secondary effects of such speech or expression. Giovani Carandola, Ltd. v. Bason (Carandola I), 303 F.3d 507, 514 (4th
Cir. 2002). The majority correctly concludes that at least one
purpose of the Challenged Statute is to address the secondary
effects resulting from the combination of alcohol and nude
dancing, which purpose is sufficient for us to treat the Challenged Statute as content-neutral, triggering application of the
intermediate level of scrutiny. Ante at 11. To pass muster
under the intermediate level of scrutiny, "a law must be narrowly tailored to serve substantial governmental interests."
Am. Life League Inc. v. Reno, 47 F.3d 642, 648-49 (4th Cir.
1995).
Beginning with the substantial-governmental-interests
prong, even without considering any evidence, the conclusion

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is inescapable that Maryland has a substantial interest in regulating nude and topless dancing and has a substantial interest
in regulating simulated sexual activity and fondling of sexual
organs in establishments holding liquor licenses. See Carandola II, 470 F.3d at 1082 (concluding that, "even without considering any evidence," North Carolina "has a substantial
interest in regulating nude and topless dancing, because such
entertainment has a long history of spawning deleterious
effects," and "a substantial interest in regulating simulated
sexual activity and fondling of sexual organs" in establishments holding liquor licenses, because North Carolina "may
rely on evidentiary foundation set forth in [City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41 (1986) and Young v.
American Mini Theatres, Inc., 427 U.S. 50 (1976)], to the
effect that harmful secondary effects are caused by the presence of even one adult entertainment establishment in a given
neighborhood," (internal quotation marks and alteration marks
omitted)).
This brings us to the narrowly tailored prong of intermediate scrutiny. In my view, the entirety of subsection (c) of the
Challenged Statute passes muster under this prong. Subsections (c)(1) and (c)(2) of the Challenged Statute, unlike the
old and new versions of North Carolina’s adult entertainment
statute at issue in Carandola I and Carandola II, respectively,
specifically tie their restrictions pertaining to persons "unclothed or in attire, costume or clothing so as to expose to
view any portion of the female breast below the top of the areola or of any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals" to those selling or serving alcoholic
beverages or to those acting as a hostess mingling with the
patrons or in a similar-type capacity, and thus do not burden
First Amendment protected artistic expression such as a ballet, a Shakespearian play, or other mainstream productions.
Md. Code, Art. 2B, § 10-405(c)(1). Additionally, the Challenged Statute’s structural division of "Attire and conduct"
restrictions in subsection (c) from "Entertainment restrictions," in subsection (d) strongly supports this conclusion.

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Under this division, the prohibitions set forth in subsection (c)
are reasonably construed as not pertaining to entertainment at
all, but to patrons of the licensed establishment and to those
employees not engaged in the entertainment of patrons. See
Carandola II, 470 F.3d at 1084 ("On a facial challenge, we
must apply a reasonable limiting construction where one is
available.").
Similarly, subsections (c)(3) and (c)(4) of the Challenged
Statute, do not burden First Amendment protected artistic
expression, because they are reasonably read as not pertaining
to entertainment at all, but to patrons of the licensed establishment and to those employees not engaged in the entertainment
of patrons.1 Moreover, at least with respect to subsection
(c)(3)’s prohibition on fondling of the breasts, buttocks, anus,
etc., the language is reasonably interpreted "to prohibit only
[actual] manipulation of specified erogenous zones," Carandola II, 470 F.3d at 1084, which prohibition "has no prohibitory effect on non-erotic dance and would not apply to other
mainstream entertainment, including popular and awardwinning musicals such as Cabaret, Chicago, Contact, and The
Full Monty," id. at 1083 (internal quotation marks omitted).
In my view, the constitutional problems with the Challenged Statute arise under subsection (d). I agree with the
majority opinion to the extent that it holds that the prohibitions in subsection (d) of the Challenged Statute reach a substantial number of impermissible applications to First
Amendment protected expression, including, for example, the
ballet or a drama depicting the horrors of rape. Ante at 12-13.
The language of the old version of North Carolina’s adult
entertainment statute that we found in Carandola I to substantially burden First Amendment protected expression is contained in subsection (d) of the Challenged Statute. Carandola
I, 303 F.3d at 516. Not surprisingly, the majority’s holding in
1

The "Entertainment restrictions" are specifically addressed in subsection (d) of the Challenged Statute. Md. Code, Art. 2B, § 10-405(d).

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the present case that the Challenged Statute is unconstitutionally overbroad focuses upon this same language. While we
know based upon our decision in Carandola II, 470 F.3d at
1083-84, (1) with respect to entertainment provided on
licensed premises, the Challenged Statute’s prohibition on "simulate[d]" sexual acts is readily susceptible to the construction that it only applies to performances that give the realistic
impression or illusion that sexual intercourse or masturbation,
etc., is being performed for the audience, Md. Code, Art. 2B,
§ 10-405(d)(1)(i), (2) with respect to entertainment provided
on licensed premises, the Challenged Statute’s prohibition on
"fondling of the breast, buttocks, anus or genitals," id. at § 10405(d)(1)(ii), is readily susceptible to the construction that it
"only bars a performer from actually manipulating specified
erogenous zones," Carandola II, 470 F.3d at 1083 (internal
quotation marks omitted), and (3) while these limiting constructions cure much of subsection (d)’s overbreadth problems, such constructions are inadequate to cure those
problems completely. Critically, the Carandola II court
upheld against a facial overbreadth challenge the new version
of North Carolina’s adult entertainment statute based upon the
combination of the limited constructions just mentioned and
the then newly enacted carve-out provision for "persons operating theaters, concert halls, art centers, museums, or similar
establishments that are primarily devoted to the arts or theatrical performances, when the performances that are presented
are expressing matters of serious literary, artistic, scientific, or
political value," N.C. Gen. Stat. § 18B-1005.1 (2005), which
the court determined "shelter[ed] most protected activity,"
Carandola II, 470 F.3d at 1085. See also id. (holding that the
new version of North Carolina’s adult entertainment statute,
with the limited constructions of the language at issue proffered by North Carolina’s Alcohol Beverage Control Commission and the carve-out provision, does not reach a
substantial number of impermissible applications, and therefore, reversing the portions of the district court’s order holding subsections (a)(2) and (a)(3) of the statute unconstitutional
as facially overbroad). Accordingly, subsection (d) of the
Challenged Statute applies to a substantial amount of protected expression such as ballet performances, theatrical productions, and comedy routines at comedy clubs. Thus, to the
extent the majority opinion affirms the district court’s striking
down of subsection (d) of the Challenged Statute and its cor-

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responding permanent injunction against the enforcement of
subsection (d), I concur in the proposed opinion and the judgment.
However, I disagree with the majority’s holding that the
Challenged Statute is not readily susceptible to a limiting construction, and its implicit holding that the Challenged Statute
is not susceptible to partial invalidation. First, the Challenged
Statute is readily susceptible to the limiting construction that
subsection (c) does not pertain to performers or persons otherwise engaged in protected expression.2 Second, with the
excise of subsection (d) from the Challenged Statute, the
Challenged Statute, including subsection (c), remains "‘fully
operative as a law.’" Free Enter. Fund, 130 S. Ct. at 3161
(one set of internal quotation marks omitted). Third, it is not
evident that Maryland’s legislature would not have enacted
the attire and conduct restrictions contained in subsection (c)
of the Challenged Statute in the absence of an ability to enact
the entertainment restrictions contained in subsection (d) of
the Challenged Statute, and therefore, we must sustain the
Challenged Statute’s remaining provisions. Id. (upholding
Sarbanes-Oxley Act with unconstitutional tenure restrictions
excised, because remaining provisions were capable of func2
The majority broadly asserts that recognizing and applying this reasonable limiting construction of subsection (c) usurps the role of the Maryland legislature and rewrites the Challenged Statute. Ante at 16. This
assertion is without merit. First, such limiting construction does not read
subsection (c) as meaning something else than what it actually states, and
therefore, rewrites nothing. Second, the "principle that statutes will be
interpreted to avoid constitutional difficulties," is "well-established,"
Frisby v. Schultz, 487 U.S. 474, 483 (1988), and "[t]hus, where an unconstitutionally broad statute is ‘readily subject to a narrowing construction’
that would eliminate its constitutional deficiencies, we accept that construction," Berger v. City of Seattle, 569 F.3d 1029, 1046 (9th Cir. 2009)
(quoting Frisby, 487 U.S. at 482). See also Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988) ("It has long been a tenet of First
Amendment law that in determining a facial challenge to a statute, if it be
readily susceptible to a narrowing construction that would make it constitutional, it will be upheld." (internal quotation marks omitted)).

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tioning independently and no evidence that Congress would
not have enacted remaining provisions independently of
unconstitutional tenure restrictions). The result limits the solution to the problem in accordance with Supreme Court precedent. Id. ("Generally speaking, when confronting a
constitutional flaw in a statute, we try to limit the solution to
the problem, severing any problematic portions while leaving
the remainder intact." (internal quotation marks omitted)).
Thus, to the extent the majority opinion affirms the district
court’s striking down of subsection (c) of the Challenged Statute and its corresponding permanent injunction against the
enforcement of subsection (c), I dissent from the majority
opinion and the judgment. I would reverse in such regard.
II
Plaintiffs also sought a declaration and corresponding
injunctive relief that the Grandfather Clause, 2005 Md. Laws
ch. 262, § 2, violates the Equal Protection Clause of the Fourteenth Amendment.3 The Fourteenth Amendment’s Equal
Protection Clause states, in relevant part, that "[n]o State shall
. . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Equal
Protection Clause "limits all state action, prohibiting any state
from denying a person equal protection through the enactment, administration, or enforcement of its laws and regulations." Front Royal & Warren County Indus. Park Corp. v.
Town of Front Royal, 135 F.3d 275, 289 (4th Cir. 1998)
(internal quotation marks & emphasis omitted).
The Grandfather Clause, effective October 1, 2005,
exempts the following from being subject to Article 2B, § 10405 in Prince George’s County:
3

Prince George’s County first became subject to Article 2B, § 10-405
on October 1, 2005, pursuant to 2005 Md. Laws ch. 262 § 1.

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a current alcoholic beverages license holder that currently conducts an activity that is made unlawful by
this Act only if the license holder:
(a) received approval from [Prince George’s County
Board of License Commissioners] to conduct the
activity on or before August 15, 1981; and
(b) has owned the licensed premises continuously
since September 1, 1981.
2005 Md. Laws ch. 262 § 2. Thus, the Grandfather Clause
exempts from Article 2B, § 10-405 any then current alcoholic
beverages license holder that had received approval to conduct adult entertainment more than exactly twenty-four years,
one month, and sixteen days prior to the effective date of Article 2B, § 10-405 on October 1, 2005, and had owned the
licensed premises continuously since September 1, 1981.
2005 Md. Laws ch. 262, § 2.
Below, the district court held that the Grandfather Clause
was unrelated to any legitimate community interest and found
that it was enacted solely to favor a politically connected business establishment, and therefore, violated the Equal Protection Clause of the Fourteenth Amendment. The Legend Night
Club v. Prince George’s County Bd. Of License Comm’rs,
2009 WL 926989 at *6 (D. Md. April 1, 2009). The district
court also rejected Defendants’ contention that it should sever
the Grandfather Clause so as to cure the Equal Protection
defect. Id.
On appeal, Defendants argue that the district court erred in
holding that the Grandfather Clause violates the Equal Protection Clause, because the district court improperly relied upon
the testimony of former Senator Broadwater in finding that
the Maryland legislature enacted the Grandfather Clause to
specifically favor the Ebony Club.4 Defendants contend that
4

There is debate among the parties as to whether the Grandfather Clause
actually exempts the Ebony Club, because Senator Broadwater apparently

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the district court should have determined that the Grandfather
Clause serves typical, legitimate reliance interests. Alternatively, Defendants contend that the district court should have
severed the Grandfather Clause instead of striking down Article 2B, § 10-405(c)-(d), as amended by 2005 Md. Laws ch.
262, in toto as violative of the Equal Protection Clause.
I agree with the district court that no reasonably conceivable state of facts exists that could provide a rational basis for
the classification in the Grandfather Clause. Legend Night
Club, 2009 WL 926989 at *5. ("Where an Equal Protection
challenge is brought against a statute that does not draw a distinction based on a suspect class, the statute is presumed constitutional, so long as the challenged classification rationally
relates to a legitimate state interest."). When the Maryland
Legislature enacted 2005 Md. Laws ch. 262, the Legend
Night Club had been in business four days short of twentythree years. Given the relatively little difference in time
between adult night clubs in business twenty four years versus
adult night clubs in business twenty-three years, Defendants’
proffered rationale of typical, legitimate reliance interests, is
farfetched. Accordingly, I would hold that the district court
was correct in holding that the Grandfather Clause violates
the Equal Protection Clause.
In my opinion, however, the district court erred in not severing the Grandfather Clause. State law governs questions
pertaining to the severability of a state statute’s provisions,
Sons of Confederate Veterans, Inc., ex rel. Griffin v. Comm’r
of Va. Dep’t of Motor Vehicles, 288 F.3d 610, 627 (4th Cir.
2002), and Maryland law provides that Maryland statutes are
severable unless a statute specifically provides otherwise or a
statute is "incomplete and incapable of being executed in
accordance with legislative intent," Md. Code, Art. 1, § 23.
transferred ownership of the club to his wife and son at some point. This
matter is irrelevant to the current analysis on appeal.

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Here, Article 2B, § 10-405(c)-(d) is readily executable absent
the Grandfather Clause. Accordingly, although the district
court correctly held that the Grandfather Clause violated the
Equal Protection Clause, it erred in relying on such violation
to strike down the entirety of Article 2B, § 10-405(c)-(d), as
amended by 2005 Md. Laws ch. 262, instead of severing the
Grandfather Clause.
III
For the reasons stated, I would reverse the district court’s
declaration that subsection (c) of the Challenged Statute is
violative of the First Amendment and its corresponding permanent injunction. I would affirm the district court’s declaration that subsection (d) of the Challenged Statute is violative
of the First Amendment and its corresponding permanent
injunction based upon such violation. Finally, I would affirm
the district court’s declaration that the Grandfather Clause
violates the Equal Protection Clause of the Fourteenth
Amendment, sever the Grandfather Clause from the Challenged Statute, and reverse the corresponding permanent
injunction to the extent that it enjoins enforcement of the
Challenged Statute based upon the district court’s holding that
the Grandfather Clause violates the Equal Protection Clause.