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