186 F. Supp. 3d 489
D. Maryland2016Background
- Plaintiff Nico Enterprises, an adult-entertainment business in Prince George’s County, challenged two County zoning ordinances (CB-46-2010 and CB-56-2011) that restrict locations and operations of "adult entertainment."
- CB-56 defines "adult entertainment" to include performances that expose certain body parts or involve touching with the intent to sexually arouse or excite another person; it confines adult-entertainment uses largely to an industrial zone and makes others nonconforming requiring Special Exceptions.
- Plaintiff sought declaratory relief under the First and Fourteenth Amendments, alleging overbreadth, vagueness, denial of equal protection, lack of tailoring, lack of evidentiary support for secondary-effects findings, and related claims.
- The County moved to dismiss (or for summary judgment); Plaintiff later moved for a TRO/PI after receiving a cease-and-desist letter; the County has held enforcement in abeyance pending litigation.
- The court treated the County’s motion as a Rule 12(b)(6) dismissal motion, relied on prior decisions addressing identical ordinances (Maages I and II), and limited the live issues to overbreadth and vagueness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Overbreadth of CB-56 definition of "adult entertainment" | The definition sweeps in mainstream theater, dance, music, art, and even private activity, chilling protected expression | The definition is narrowed by an "intent" clause (acts must be intended to sexually arouse) and should be read to require primary purpose to arouse; thus it does not reach mainstream expression | Court: Plaintiff has standing to bring an overbreadth claim but the intent clause supplies a limiting construction; claim dismissed |
| Vagueness of terms (e.g., "premise") | Ordinance language is vague, leads to arbitrary enforcement, and does not define key terms like "premise" | Ordinances regulate commercial/industrial uses (business establishments), not private homes; ordinary person can understand application; plaintiff who admits to clearly proscribed conduct lacks standing to raise vagueness as-applied to others | Court: Plaintiff lacks standing to bring vagueness claim and, alternatively, the terms are not unconstitutionally vague; claim dismissed |
| Claims resolved by prior case law (e.g., evidentiary support, equal protection) | Ordinance lacks empirical support, is arbitrary, violates equal protection, and affords unbridled discretion | Prior decisions (Maages I & II) already rejected these challenges to the same ordinances | Court: All claims identical to those decided in Maages I & II are dismissed (Plaintiff concedes Equal Protection claim) |
| Request for TRO / Preliminary Injunction | Cease-and-desist harms business and requires immediate relief | County represented it would preserve the status quo and deferred enforcement pending resolution | Court: County’s motion granted; Plaintiff’s TRO/PI motion denied as moot |
Key Cases Cited
- Maages Auditorium v. Prince George’s County, Md., 4 F. Supp. 3d 752 (D. Md. 2014) (district court decision addressing constitutionality of same ordinances and resolving evidentiary, vagueness, and discretion claims)
- Giovanni Carandola, Ltd. v. Fox, 470 F.3d 1074 (4th Cir. 2006) (interpreting overbreadth doctrine for adult-entertainment restrictions and upholding a narrowed statute)
- Giovanni Carandola, Ltd. v. Barone, 303 F.3d 507 (4th Cir. 2002) (finding an overbroad adult-entertainment restriction that swept in mainstream expression)
- Legend Night Club v. Miller, 637 F.3d 291 (4th Cir. 2011) (applying intermediate scrutiny to adult-entertainment regulation)
- Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine is "strong medicine"; facial invalidation disfavored)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standards and dismissal under Rule 12(b)(6))