KO-ME, LLC et al v. Prince George's County, Maryland

Filing 9

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
:
KO-ME, LLC
d/b/a Mile High Club

:

v.

:

Civil Action No. DKC 16-1174

:
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. 6).

(ECF

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.
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)

that

“ordinances”).

restrict

adult

entertainment

businesses

(the

An earlier opinion summarized 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
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

Auditorium

v.

Prince

George’s

Cty.

(Maages

F.Supp.3d 752, 759 (D.Md. 2014) (citations omitted).
1,

2016,

Plaintiff

the

County

KO-ME,

(“Mile High”).

LLC,

issued
doing

a

cease

business

(ECF No. 1-3, at 16).

and
as

desist

the

I),

4

On April
letter

Mile

High

to

Club

The letter ordered that

Mile High “cease and desist all adult entertainment activities
no later than 5:00 p.m. Friday, April 8, 2016.”

2

(Id.).

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
has

danced

at

Mile

High

for

approximately

(collectively, the “Plaintiffs”).

eight

(8)

(ECF No. 5 ¶ 9).

years”

The amended

complaint asserts five counts: violation of the Equal Protection
Clause (Count I); violation of “constitutional rights” under the
First

and

Fourteenth

Amendments

(Counts

II

and

III);

an

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).
the

County

filed

the

pending

motion

alternative, for summary judgment.

to

dismiss

(ECF No. 6).

On June 7,
or,

in

the

Plaintiffs

responded in opposition (ECF No. 7), and the County replied (ECF
No. 8).
II.

Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is

to test the sufficiency of the complaint.1

1

Presley v. City of

The County moves to dismiss or, in the alternative, for
summary judgment.
A court may, without converting a motion to
3

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

v.

Charles

Cnty.

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
dismiss.
4

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

Legal conclusions

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,
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 brief review of recent decisions in cases analyzing the
ordinances’ constitutionality is prudent before addressing the
instant case.

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
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 Cty. (Maages II), No. DKC-13-1722,
2016 WL 827385, at *2-4 (D.Md. Mar. 3, 2016), the court held
that

the

ordinances

alternative

avenues

left
of

open

the

communication

Maryland’s amortization doctrine.
5

constitutionally-required
and

did

not

violate

Then, in Nico Enters., Inc.

v. Prince George’s Cty., No. DKC-15-2832, 2016 WL 2770519, *3-7
(D.Md.

May

13,

2016),

the

court

reaffirmed

the

analysis

in

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.

Others

assert only portions of a claim that is included across multiple
counts.

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.

Although Plaintiffs

emphasize that dancers at Mile High do not perform lap dances,
they fail to articulate how this distinction is relevant to the
6

constitutional

questions

at

hand

or

the

language

of

the

ordinances.
Plaintiffs
asserting

also

that

the

attempt

to

ordinances

distinguish

violate

the

this

Equal

case

by

Protection

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,
private

club

exception.”

or

lodge,”

to

apply

(ECF No. 5 ¶ 60).

for

the

same

special

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
entertainment’

may

continue

upon

approval

of

a

Special

Exception,” an application for which must have been filed and
accepted by June 1, 2012.

(ECF No. 1-3, at 11).

Plaintiffs

argue that Mile High was prohibited from applying for a Special
Exception

because

occupancy permit.

it

has

a

(Id. at 15).

“restaurant/night

club”

use

As discussed in Maages I:

Plaintiffs do not contend that they are
members
of
any
suspect
class,
and
consequently,
the
claim
is
subject
to
rational basis review. Rational basis review
requires that legislative action, “[a]t a
minimum, . . . be rationally related to a
legitimate governmental purpose.”
Clark v.
Jeter, 486 U.S. 456, 461 (1988). There is a
“strong
presumption
of
validity”
when
examining a statute under rational basis
review, and the burden is on the party
7

and

challenging the validity of the legislative
action to establish that the statute is
unconstitutional.
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
made
no
demonstration
that
the
zoning
ordinances are motivated by unconstitutional
considerations.
While Defendant has not
presented
evidence
of
its
motivations
either, in an Equal Protection challenge
under rational basis review, the government
need
only
demonstrate
there
is
some
legitimate justification that could have
motivated the action.
Defendant has made
its
showing
under
Fourth
Circuit
jurisprudence
to
satisfy
the
First
Amendment’s
requirement
that
the
law
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

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
injury.
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,
8

IV.

Conclusion
For the foregoing reasons, the motion to dismiss or, in the

alternative, for summary judgment filed by the County will be
granted.3

A separate order will follow.

/s/
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.
3

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.
9