KO-ME, LLC et al v. Prince George's County, Maryland
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 7/26/2016. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
d/b/a Mile High Club
Civil Action No. DKC 16-1174
PRINCE GEORGE’S COUNTY, MARYLAND
Presently pending and ready for resolution in this case
motion to dismiss or, in the alternative, for summary judgment
filed by Defendant Prince George’s County (the “County”).
The issues have been fully briefed, and the court now
rules, no hearing being deemed necessary.
Local Rule 105.6.
For the following reasons, the County’s motion will be granted.
This action is one of a series of cases brought by adult
challenging two recent County ordinances (CB-46-2010 and CB-562011)
An earlier opinion summarized the ordinances’
[CB-46] banned “adult entertainment”
businesses from being located anywhere in
the County but Zone I-2, an industrial zone.
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 purposes in any zone.
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.
. . .
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
provided they obtain a Special Exception.
Applications for such an exception were due
by June 1, 2012.
CB-56 eliminated the May
1, 2013 deadline to conform.
Plaintiffs’ business locations, they were
each rendered nonconforming by CB-56 and
must obtain a Special Exception to remain in
their present locations.
F.Supp.3d 752, 759 (D.Md. 2014) (citations omitted).
(ECF No. 1-3, at 16).
The letter ordered that
Mile High “cease and desist all adult entertainment activities
no later than 5:00 p.m. Friday, April 8, 2016.”
On April 20, 2016, Mile High filed a complaint seeking a
declaratory judgment that CB-46 and CB-56 are unconstitutional.
(ECF No. 1).
Mile High purported to file the complaint on
behalf of itself; “John Doe,” a representative patron of Mile
High; and “Jane Doe,” a representative performer at Mile High.
On May 24, an amended complaint was filed, which replaced as a
plaintiff Jane Doe with Fantasia Hopkins, an “exotic dancer, who
(collectively, the “Plaintiffs”).
(ECF No. 5 ¶ 9).
complaint asserts five counts: violation of the Equal Protection
Clause (Count I); violation of “constitutional rights” under the
unconstitutional taking of property (Count IV); and a “failure
to provide for adequate alternative avenues of communication as
it relates to theatres and/or playhouses” (Count V).
alternative, for summary judgment.
(ECF No. 6).
On June 7,
responded in opposition (ECF No. 7), and the County replied (ECF
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.1
Presley v. City of
The County moves to dismiss or, in the alternative, for
A court may, without converting a motion to
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.”
“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
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
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
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).
Accordingly, the County’s motion will be analyzed as a motion to
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
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).
A brief review of recent decisions in cases analyzing the
ordinances’ constitutionality is prudent before addressing the
First, in Maages I, the court granted judgment
for the County on the following claims: violation of the Equal
Protection Clause; lack of required evidentiary support for the
Maages I, 4 F.Supp.3d at 760, 779.
In Maages v. Prince George’s Cty. (Maages II), No. DKC-13-1722,
2016 WL 827385, at *2-4 (D.Md. Mar. 3, 2016), the court held
Maryland’s amortization doctrine.
Then, in Nico Enters., Inc.
v. Prince George’s Cty., No. DKC-15-2832, 2016 WL 2770519, *3-7
Maages I and II, and rejected the plaintiff’s argument that the
ordinances were unconstitutionally overbroad.
The court also
held that the plaintiff did not have standing to bring a claim
of vagueness, but noted that the plaintiff “failed to allege
plausibly that the term ‘premise’ is unconstitutionally vague.”
Id. at *7-8.
Here, the individual allegations in the amended complaint
are not entirely clear.
Some “counts” assert multiple claims or
theories of a constitutional violation, including those beyond
what is included in the heading identifying the count.
assert only portions of a claim that is included across multiple
Regardless, Plaintiffs fail to articulate how the facts
and theories it puts forth warrant a different decision than
that in Maages and Nico.
Plaintiffs’ references to artistic
works and its conclusory assertion that the primary purpose of
the entertainment at Mile High, including the dancing of Ms.
Hopkins, “is to convey exotic messages and make money [and] not
to sexually arouse or excite another person” are insufficient to
state a claim that the ordinances run afoul of the constitution,
as discussed at length in Maages and Nico.
emphasize that dancers at Mile High do not perform lap dances,
they fail to articulate how this distinction is relevant to the
Clause because “the legislation allows other adult entertainment
business[es] to apply for a ‘special exception’ but denies Mile
High and other establishment[s] not listed as an ‘auditorium,
(ECF No. 5 ¶ 60).
Specifically, the ordinances
provided that an establishment in certain zones “with a valid
use and occupancy permit for an auditorium, private club or
lodge that included activity that meets the definition of ‘adult
Exception,” an application for which must have been filed and
accepted by June 1, 2012.
(ECF No. 1-3, at 11).
argue that Mile High was prohibited from applying for a Special
(Id. at 15).
As discussed in Maages I:
Plaintiffs do not contend that they are
rational basis review. Rational basis review
requires that legislative action, “[a]t a
minimum, . . . be rationally related to a
legitimate governmental purpose.”
Jeter, 486 U.S. 456, 461 (1988). There is a
examining a statute under rational basis
review, and the burden is on the party
challenging the validity of the legislative
action to establish that the statute is
FCC v. Beach Commc'ns,
Inc., 508 U.S. 307, 314-15 (1993). Finally,
when undertaking rational basis review, the
party defending the constitutionality of the
action need not introduce evidence or prove
the actual motivation behind passage, but
need only demonstrate that there is some
legitimate justification that could have
motivated the action. Id. at 315.
As discussed above, Plaintiffs have
ordinances are motivated by unconstitutional
While Defendant has not
either, in an Equal Protection challenge
under rational basis review, the government
legitimate justification that could have
motivated the action.
Defendant has made
advances a substantial governmental interest
and consequently has met Equal Protection’s
rational basis standard.
See [City of]
Renton [v. Playtime Theaters, Inc.], 475
U.S. [41,] 55 n.4 [(1986)].
Maages I, 4 F.Supp.3d at 776.
The analysis in Maages I is
persuasive here, and Plaintiffs have not put forth any facts
stating a plausible Equal Protection claim.2
The County argues that Mile High does not have standing to
bring this Equal Protection claim because it did not apply for a
Special Exception and therefore did not suffer a concrete
In support, the County cites to Doe v. Virginia
Department of State Police, 713 F.3d 745 (4th Cir. 2013), in
which the United States Court of Appeals for the Fourth Circuit
assessed the standing of a plaintiff challenging a state statute
limiting sex offenders’ access to certain public properties.
The Fourth Circuit held that the plaintiff did not have standing
because she did not petition the state authorities for access,
For the foregoing reasons, the motion to dismiss or, in the
alternative, for summary judgment filed by the County will be
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
as was allowed under the statute. Here, on the other hand, Mile
High contends that it was not allowed to apply for a Special
Exception under the plain terms of the ordinances. Accordingly,
Doe is inapposite, and Mile High has standing to challenge the
Special Exception provision of the ordinances.
Because the amended complaint will be dismissed for
failure to state a claim, it is not necessary to reach the
County’s statute of limitations or laches arguments.
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