Nico Enterprises, Inc. et al v. Prince George's County, Maryland
Filing
14
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 5/13/2016. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
NICO ENTERPRISES, INC., et al.
:
v.
:
Civil Action No. DKC 15-2832
:
PRINCE GEORGE’S COUNTY, MARYLAND
:
MEMORANDUM OPINION
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”).
No. 7).
order
(ECF
Also pending is a motion for a temporary restraining
and
preliminary
injunction
Enterprises, Inc. (“Plaintiff”).
filed
by
Plaintiff
(ECF No. 10).1
Nico
The relevant
issues have been briefed, and the court now rules, no hearing
being deemed necessary.
1
Local Rule 105.6.
For the following
Plaintiff purports to bring this action on behalf of
itself and John and Jane Doe, who are “representative patron[s]
of Plaintiff[‘s] businesses, and all those similarly situated
whose rights have been violated by the vague and overbroad
statute.”
(ECF No. 1 ¶¶ 7-8).
Plaintiff may not, however,
assert a vagueness claim on behalf of a Doe plaintiff.
See
Maages Auditorium v. Prince George’s County, Md. (Maages I), 4
F.Supp.3d 752, 762 (D.Md. 2014). As discussed below, Plaintiff
has standing to bring an overbreadth claim, and may do so
without the Doe plaintiffs. Accordingly, John and Jane Doe will
be dismissed as plaintiffs.
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-562011)
restricting
“ordinances”).
A
adult
recent
entertainment
opinion
summarized
businesses
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.
§ 47506.06.
Establishments “providing adultoriented 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
2
(the
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
Specifically, the complaint alleges:
a.
abridges
The
ordinance
unconstitutionally
freedom of speech and expression
3
No.
1).
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
terms and differ as to their application;
i.
The
ordinance
deprives
the
Plaintiffs
of
their
right
to
equal
protection of the laws;
j. The ordinance does not define the
word “premises” in paragraph “A”;
k. The ordinance contains terms that
are unconstitutionally vague and do not
provide adequate guidance to law enforcement
officers, board members or any other agent
of the County who themselves would have to
necessarily guess as to the meanings of the
terms and differ as to their applications
thus leading to differential application of
the law; [and]
l.
The
subject
legislations
are
unconstitutionally vague and [are] thus null
and void ab initio.
4
(Id. at 9-10).
On October 30, the county filed the pending
motion to dismiss.
(ECF No. 7).
Plaintiff responded (ECF No.
8), and the County replied (ECF No. 9).
On April 1, 2016, the County issued a cease and desist
letter to Plaintiff and other nonconforming adult entertainment
businesses within the County.
letter
ordered
that
(ECF No. 10-1, at 3-15).
Plaintiff
“cease
and
desist
all
The
adult
entertainment activities no later than 5:00 p.m. Friday, April
8, 2016.”
motion
(Id. at 3).
for
injunction.
a
On April 27, Plaintiff filed the pending
temporary
restraining
(ECF No. 10).
order
and
preliminary
To date, the County has not taken
enforcement action against Plaintiff beyond sending the cease
and desist letter and has represented that “it would take no
action to disturb the status quo pending this Court’s resolution
of
all
outstanding
motions
for
and/or preliminary injunctions.”
II.
temporary
restraining
orders
(ECF No. 12 ¶ 2).
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.2
2
Presley v. City of
The County moves to dismiss or, in the alternative, for
summary judgment.
A court may, without converting a motion to
dismiss into a motion for summary judgment properly “take
judicial notice of matters of public record” and “consider
documents attached to the complaint . . . as well as those
attached to the motion to dismiss, so long as they are integral
to the complaint and authentic.” Philips v. Pitt Cnty. Memorial
Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citations omitted).
5
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.”
8(a)(2).
Fed.R.Civ.P.
“Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n.3 (2007).
Bell Atl. Corp.
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
(2009) (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 (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
not
need
be
accepted.
Revene
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
v.
Charles
Cnty.
Legal conclusions
couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
Accordingly, the County’s motion will be analyzed as a motion to
dismiss.
6
reference to actual events, United Black Firefighters v. Hirst,
604
F.2d
844,
847
(4th
Cir.
1979);
see
also
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Francis
v.
Ultimately, a
complaint must “‘permit[] the court to infer more than the mere
possibility of misconduct’ based upon ‘its judicial experience
and common sense.’”
Coleman v. Md. Court of Appeals, 626 F.3d
187, 190 (4th Cir. 2010) (quoting Iqbal, 556 U.S. at 679).
III. Analysis
A.
Claims Addressed in Maages
The County argues that this court’s reasoning in Maages is
dispositive here and warrants dismissal of all of Plaintiff’s
claims other than its claims of overbreadth and vagueness.
No. 7-1, at 4-6).
(ECF
In its response, Plaintiff concedes that its
Equal Protection claim should be dismissed in light of Maages.
(ECF
No.
8,
at
9-10).
The
plaintiffs
in
Maages
brought
challenges to the ordinances that were similar to Plaintiff’s
claims here.
County
on
In Maages I, the court granted judgment for the
the
following
claims:
violation
of
the
Equal
Protection Clause, lack of required evidentiary support for the
ordinances,
special
lack
of
exception
adequate
procedural
process,
administrative discretion.
vagueness,
safeguards
and
in
the
unbridled
Maages I, 4 F.Supp.3d at 760, 779.
In Maages v. Prince George’s County (Maages II), No. DKC-131722, 2016 WL 827385, at *2-4 (D.Md. Mar. 3, 2016), the court
7
held that the ordinances left open the constitutionally-required
alternative
avenues
of
communication
and
did
not
violate
Maryland’s amortization doctrine.
Here, Plaintiff puts forth multiple constitutional claims
in twelve paragraphs within one count.
Some paragraphs assert
duplicative claims, and others assert one theory or portions of
a claim.
judgment
It is clear, however, that Maages I and II granted
for
the
County
on
claims
identical
to
the
ones
Plaintiff brings, other than its assertion of overbreadth and
vagueness.3
Accordingly, for the reasons articulated in Maages I
and II, the County’s motion to dismiss will be granted on all
claims in the complaint other than overbreadth and vagueness,
which require more detailed discussion.
B.
Overbreadth
Plaintiff
asserts
that
the
definition
of
“adult
entertainment” in CB-56 is overbroad because it “will burden a
multitude of mainstream musical, theatrical, dance productions,
art work and even activities in private homes.”
17).
(ECF No. 8, at
The County argues that Plaintiff does not have standing to
challenge
CB-56’s
overbreadth
because
“the
challenged
ordinances are clearly applicable” to Plaintiff.
3
zoning
(ECF No. 7-1,
Although the court in Maages I entered judgment for the
County on a claim of vagueness, Plaintiff here appears to allege
a different aspect of the ordinances is vague.
Accordingly, a
more thorough analysis of the vagueness challenge is warranted.
8
at 6-7).
The County also contends that the definition of “adult
entertainment”
is
not
overbroad
because
it
is
limited
to
activity that is done “with the intent to sexually arouse or
excite another person” (the “intent clause”).
County
notes
that
it
“interprets
this
(Id. at 9).
language
to
mean
The
the
primary purpose of the entertainment act [must be] to sexually
arouse
or
excite
incidental
person.”
effect
another
of
person,
sexually
not
arousing
[merely
or
have]
exciting
the
another
(Id. at 11).
Plaintiff has standing to bring its overbreadth claim even
though it does not argue that CB-56 is overbroad as applied to
its
business.
departure
“The
from
overbreadth
traditional
rules
doctrine
of
constitutes
standing.’”
‘a
Giovani
Carandola, Ltd. v. Bason (Carandola I), 303 F.3d 507, 512 (4th
Cir. 2002) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613
(1973)).
‘challenge
Under
a
the
statute
overbreadth
on
its
face
doctrine,
because
it
a
party
also
“may
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
declared partially invalid.’”
undertake
to
have
the
law
Id. (quoting Board of Airport
Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987)).
Accordingly, Plaintiff has standing to challenge the overbreadth
of CB-56.
9
The United States Court of Appeals for the Fourth Circuit
addressed
similar
overbreadth
challenges
to
adult entertainment in the Carandola cases.
laws
restricting
The Fourth Circuit
explained:
“[W]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.”
Broadrick, 413
U.S. at 615.
“[A] law should not be
invalidated
for
overbreadth
unless
it
reaches
a
substantial
number
of
impermissible applications.
. . .”
[New
York v.] Ferber, 458 U.S. [747,] 771
[(1982)].
If an overbreadth challenge
succeeds,
“any
enforcement”
of
the
regulation at issue is “totally forbidding.”
Broadrick, 413 U.S. at 613.
Thus, the
Supreme Court has famously cautioned that
the overbreadth doctrine “is, manifestly,
strong
medicine”
and
should
be
used
“sparingly and only as a last resort.”
Id.
A
court
should
invoke
a
“limiting
construction”
or
employ
“partial
invalidation” before resorting to a finding
of facial overbreadth. Id.
Giovani Carandola, Ltd. v. Fox (Carandola II), 470 F.3d 1074,
1081
(4th
scrutiny
Cir.
2006).
applies,
and
The
the
parties
court
has
agree
that
previously
intermediate
applied
such
scrutiny when assessing the ordinances’ constitutionality.
See
Maages I, 4 F.Supp.3d at 762-63; see also Legend Night Club v.
Miller, 637 F.3d 291, 299 (4th Cir. 2011) (applying intermediate
scrutiny to Maryland statute restricting adult entertainment);
10
Carandola I, 303 F.3d at 515 (applying intermediate scrutiny to
North Carolina statute restricting adult entertainment).
“To
withstand
intermediate
scrutiny,
[the
County]
must
demonstrate that a statute ‘materially advances an important or
substantial
future
interest
ones.’”
by
redressing
Carandola
II,
past
470
harms
F.3d
at
or
1082
preventing
(quoting
Satellite Broad. & Commc’ns Ass’n v. FCC, 275 F.3d 337, 356 (4th
Cir. 2001)).
“[E]ven in the absence of evidence adduced at a
hearing or in the submissions, Fourth Circuit jurisprudence has
held that appeals to ‘common sense’ and ‘common experience’ are
sufficient for the County to meet its burden in demonstrating a
substantial interest.”
Maages I, 4 F.Supp.3d at 764 (citing
Legend Night Club, 637 F.3d at 299; Imaginary Images v. Evans,
612 F.3d 736, 742 (4th Cir. 2010); Carandola II, 470 F.3d at
1082.
Indeed, in Carandola II, the Fourth Circuit determined
that “even without considering any evidence, we can conclude
that the State has a substantial interest in regulating nude and
topless dancing, because such entertainment has a long history
of spawning deleterious effects.”
1082
(citation
and
internal
Carandola II, 470 F.3d at
quotation
marks
omitted).
Accordingly, the County has a substantial interest in regulating
adult entertainment.
A law is overbroad if it reaches a “substantial number” of
impermissible applications such as artistic theater, dance, and
11
musical productions.
See id. at 1081 (citing Ferber, 458 U.S.
at
question
771).
The
key
in
this
case
is
whether
the
definition of “adult entertainment” in CB-56 is more similar to
the definition in Carandola I, which the Fourth Circuit found to
be overbroad, or the amended definition at issue in Carandola
II, which the Fourth Circuit upheld.
Of particular importance
is whether the intent clause sufficiently limits the scope of
CB-56.
The statute at issue in Carandola I prohibited, inter alia,
the following from taking place at establishments permitted to
sell alcoholic drinks:
(4) Any conduct or entertainment by any
person whose private parts are exposed or
who is wearing transparent clothing that
reveals the private parts;
(5) Any entertainment that includes or
simulates sexual intercourse or any other
sexual act; or
(6)
Any
other
lewd
or
obscene
entertainment or conduct, as defined by the
rules of the [North Carolina Alcoholic
Beverage
Control]
Commission
[(the
“Commission”)].
Carandola I, 303 F.3d at 510.
Pursuant to the statute, the
Commission promulgated a rule that provided, in relevant part:
(a) No permittee or his employee shall allow
any person to perform acts of or acts that
simulate:
(1) sexual intercourse, masturbation,
sodomy,
bestiality,
oral
copulation,
flagellation, or any sexual acts that are
prohibited by law;
12
(2) the touching, caressing or fondling
of the breasts, buttocks, anus, vulva or
genitals;
(3) the display of the pubic hair,
anus, vulva or genitals.
Id.
The
Fourth
Circuit,
in
upholding
the
district
court’s
preliminary injunction, held: “The restrictions challenged here
. . . sweep far beyond bars and nude dancing establishments.
They reach a great deal of expression in the heartland of [the
First
Amendment’s]
protection.”
Id.
at
516
(alteration
original) (citation and internal quotation marks omitted).
in
The
Fourth Circuit continued:
As the Commission has conceded, the plain
language of the restrictions prohibit[ed] on
licensed premises any entertainment that
simulates
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.
The Commission has further conceded
that
the
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.
Thus,
the
impermissibly
entertainment.”
Fourth
burdened
Circuit
a
agreed
substantial
Id. at 520.
13
that
amount
North
of
Carolina
“mainstream
In response to Carandola I, the North Carolina legislature
amended the statute restricting adult entertainment.
The new
statute prohibited:
(1) Any conduct or entertainment by any
person whose genitals are exposed or who is
wearing transparent clothing that reveals
the genitals;
(2) Any conduct or entertainment that
includes or simulates sexual intercourse,
masturbation,
sodomy,
bestiality,
oral
copulation, flagellation, or any act that
includes
or
simulates
the
penetration,
however slight, by any object into the
genital or anal opening of a person’s body;
or
(3) Any conduct or entertainment that
includes
the
fondling
of
the
breast,
buttocks, anus, vulva, or genitals.
Carandola
II,
470
excepted
“persons
F.3d
at
1078.
operating
Importantly,
theaters,
concert
the
statute
halls,
art
centers, museums, or similar establishments that are primarily
devoted
to
the
performances
serious
that
literary,
arts
are
or
theatrical
presented
artistic,
performances,
are
expressing
scientific,
or
when
matters
political
the
of
value.”
Id. at 1079.
The Fourth Circuit upheld the amended statute against an
overbreadth challenge for two reasons.
First, the Commission
acknowledged that the “prohibition on simulated sexual acts only
applies to performances that give the realistic impression or
illusion
that
sexual
intercourse
being performed for the audience.”
14
[or
masturbation,
etc.]
is
Id. at 1083 (alteration in
original) (internal quotation marks omitted).
the
Commission’s
interpretation,
the
new
Thus, “[u]nder
statute
[had]
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. (quoting Carandola I, 303 F.3d at 516).
The court
noted that it “must apply a reasonable limiting construction
where one is available” and determined that “the statute is
‘readily
susceptible’
to
the
construction
offered
by
the
Commission, and [the court had] no reason to doubt that the
Commission
will
enforce
the
limited interpretation.”
statute
in
accordance
Circuit
establishments
artistic,
was
persuaded
presenting
scientific,
or
this
Id. at 1084 (citing Virginia v. Am.
Booksellers Ass’n, 484 U.S. 383, 397 (1988)).
Fourth
with
that
matters
political
“shelter most protected activity.”
the
of
value”
Moreover, the
language
“serious
was
excepting
literary,
sufficient
to
Id. at 1084-85.
The language at issue here falls between the two provisions
in Carandola I and II.
CB-56 does not contain the explicit
exception that existed in Carandola II, nor does it limit its
scope to conduct that “simulates” sexual activity.
On the other
hand, the intent clause provides a certain amount of restraint
that was not present in Carandola I.
The County asserts that
the intent clause effectively “limits the application of the
15
definition
of
adult
entertainment
to
certain
specifically those known colloquially as strip clubs.”
7-1,
at
9).
Like
in
Carandola
II,
CB-56
does
premises,
(ECF No.
not
reach
mainstream entertainment, the County argues, because the primary
purpose of such entertainment is not for the sexual arousal of
others.
For example, the County contends that any mainstream
entertainment (such as a dancer lifting another dancer by her
buttocks or an artistic depiction of nudity) that may appear to
fall under CB-56 would not be prohibited because the intent
behind such mainstream entertainment is artistic or musical and
not an intent to arouse or excite another person sexually.
ECF No. 7-1, at 11-12).
CB-56
can
lead
a
(See
Plaintiff counters that “[n]othing in
reasonable
person
definition only applies to strip clubs.”
4
to
believe
that
this
(ECF No. 8, at 22).4
Plaintiff’s discussion of Massachusetts v. Oakes, 491 U.S.
576 (1989) is unclear and of little use.
Plaintiff appears to
argue that the Supreme Court of the United States found a
criminal statute prohibiting the display of underage nudity with
a “lascivious intent” to be overbroad. In reality, there is no
majority opinion in Oakes. The most that can be read from the
three opinions is a suggestion that the “lascivious intent”
language may have saved the statute from being facially
overbroad,
which
cuts
against
Plaintiff
here.
Justice
O’Connor’s plurality opinion determined that the legislature’s
amendment of the statute to add the intent clause mooted the
criminal defendant’s facial overbreadth challenge.
Id. at 58384 (plurality opinion). Justice Scalia, writing for himself and
Justice Blackmun, said that the original statute was not
facially overbroad.
Id. at 588 (Scalia, J., concurring in the
judgment in part and dissenting in part).
Finally, Justice
Brennan, dissenting on behalf of himself and two other Justices,
believed that the original statute was facially overbroad, but
16
It argues that CB-56 applies to “any exhibition, performance or
dance of any type.”
(Id.).
Plaintiff’s analysis of CB-56 ignores the function of the
intent
clause
and
fails
to
understand
its
limiting
effect.
Plaintiff provides many examples of physical contact and nudity
within the context of mainstream entertainment and art, but it
does not argue that there is a “realistic danger” that CB-56
reaches such conduct.
behind
such
Plaintiff fails to show how the intent
mainstream
entertainment
could
be
considered
sexually to arouse or excite as opposed to further musical,
artistic,
or
entertainment.
theatrical
goals,
or
otherwise
provide
See MJJG Rest. LLC v. Horry Cnty., 102 F.Supp.3d
770, 791 (D.S.C. 2015) (“[I]t is not enough that the challenged
regulation could be interpreted and applied in ways that would
be impermissible; there has to be a ‘realistic danger’ that the
First
Amendment
rights
will
be
infringed.”).
Although
the
“venture[d] no views as to the constitutionality” of the amended
statute and noted that the intent clause may have “lessen[ed]
its threat to protected conduct.” Id. at 597, and n.6 (Brennan,
J., dissenting).
The Supreme Court remanded the case to the Supreme Judicial
Court of Massachusetts for further proceedings to determine
whether the original version of the statute, without the intent
clause, was constitutional as applied to the defendant. Id. at
585 (plurality opinion). On remand, the Supreme Judicial Court
upheld the defendant’s conviction because “under Federal
constitutional law, the Commonwealth’s interest in protecting
children permits the application of [the statute] to the
defendant’s conduct.”
Commonwealth v. Oakes, 407 Mass. 92, 98
(1990).
17
Fourth Circuit has not ruled on precisely the same language, the
Sixth Circuit has held that a statute with a similar intent
clause was not overbroad.
See J.L. Spoons, Inc. v. Dragani, 538
F.3d 379, 384 (6th Cir. 2008).
The Sixth Circuit held:
The
prohibition
against
sexual
contact
applies only if the purpose of the contact
is to arouse sexually or to gratify the
other person.
By its own terms, [the
prohibition] does not apply to contact done
in furtherance of legitimate works of art
for
the
purpose
of
conveying
artistic
meaning, such as the touching of an actor’s
thigh in a play. Thus, mainstream works of
art that merely suggest sexual activity will
not be burdened.
Id.
(emphasis
added).
Therefore,
the
intent
clause,
in
a
practical sense, performs a similar function as the exception in
Carandola
II
and
prevents
CB-56
from
reaching
a
substantial
number of impermissible applications.
Moreover,
the
County’s
proposed
reading
of
the
intent
clause to require that the “primary purpose of the entertainment
act
was
to
sexually
arouse
or
excite
another
person”
is
a
“readily susceptible” limiting construction that further reduces
any
fear
of
CB-56
reaching
impermissible
Carandola II, 470 F.3d at 1084.
applications.
See
Unlike in Legend Night Club or
Carandola I, where the text of the restrictions had no limiting
language, see Legend Night Club, 637 F.3d at 301; Carandola I,
303 F.3d at 517, CB-56’s intent clause is readily susceptible to
the County’s proposed construction.
18
Accordingly, the County’s
motion to dismiss will be granted as to Plaintiff’s overbreadth
claim.
C.
Vagueness
As a threshold matter, the County is correct that Plaintiff
lacks standing to bring a claim asserting that the ordinances
are unconstitutionally vague.
Although a plaintiff may assert
an overbreadth claim on behalf of others, “[a] plaintiff who
engages
in
some
conduct
that
is
clearly
proscribed
cannot
complain of the vagueness of the law as applied to the conduct
of others.”
Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 495 (1982); see MJJG Rest., 102
F.Supp.3d
at
793;
Bigg
Wolf
Discount
Movie
Sales,
Inc.
v.
Montgomery Cnty., Md., 256 F.Supp.2d 385, 398-99 (D.Md. 2003)
(citing Hart Book Stores v. Edmisten, 612 F.2d 821 (4th Cir.
1979)).
Here, Plaintiff admits that it is a provider of adult
entertainment
“within
the
definitions
now
County’s Adult Entertainment provisions.”
contained
in
the
(ECF No. 1 ¶ 11).
Accordingly, Plaintiff lacks standing to allege the ordinances
are vague.
Even
if
Plaintiff
had
standing,
however,
would still survive its vagueness challenge.
the
ordinances
“In assessing a
vagueness challenge, a court must ask whether the government’s
policy is ‘set out in terms that the ordinary person exercising
ordinary
common
sense
can
sufficiently
19
understand
and
comply
with.’”
Imaginary Images, 612 F.3d at 749 (quoting Carandola
II, 470 F.3d at 1079).
It is not entirely clear what terms
Plaintiff alleges are unconstitutionally vague.
Plaintiff may
not state a general claim of vagueness with broad, conclusory
assertions in its complaint that “[t]he vagueness and subjective
definitions of the ordinance would lead human beings of common
intelligence to necessarily guess as to the meaning of these
terms and differ as to their application.”
(ECF No. 1 ¶ 31(h)).
Such assertions are no more than “labels and conclusions” and a
“formulaic recitation of the elements of a cause of action,” and
thus
are
insufficient
to
survive
a
motion
Iqbal, 556 U.S. at 679 (citation omitted).
to
dismiss.
See
Moreover, Plaintiff
may not amend the complaint in its opposition by asserting, for
the
first
vague.
time,
that
specific
language
its
unconstitutionally
The only term the complaint identifies or even alludes
to as being vague is the term “premise.”
In
is
response,
Plaintiff
elaborates
(ECF No. 1 ¶ 31(j)).
that
CB-56
“fails
to
explain what venue the prohibited conduct is allowed, if there
are any exceptions, and even if such conduct is prohibited in
the
privacy
of
a
resident’s
home.”
(ECF
No.
8,
at
25).
Accordingly, Plaintiff’s vagueness claim is limited to the term
“premise.”
Plaintiff
has
failed
to
allege
plausibly
that
the
term
“premise” is unconstitutionally vague, and it is clear that the
20
ordinances do not regulate private conduct within a home.
The
restrictions in CB-46 and CB-56 were placed in the section of
the County Code relating to commercial and industrial zoning,
and it is apparent that the ordinances apply only to businesses
or “establishments” offering adult entertainment.
Perhaps the
County could have been more precise in its definition of the
term “premise,” but “unavoidable imprecision is not fatal and
celestial precision is not necessary.”
Bigg Wolf, 256 F.Supp.2d
at 399 (citing Hart Book Stores, 612 F.2d at 821).
Although not
as
referred
clear
“licensed
as
the
statute
premises,”
an
in
Carandola
ordinary
II,
person
which
exercising
to
ordinary
common sense would understand that the ordinances here apply to
businesses exhibiting adult entertainment, as defined in CB-56.
Accordingly, the County’s motion to dismiss will be granted as
to Plaintiff’s vagueness claims.
IV.
Conclusion
For the foregoing reasons, the County’s motion to dismiss
will be granted.
Plaintiff’s motion will be denied as moot.
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
21
A
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