The Plaintiff is a self-described “spiritual counselor” who opened a psychic services business in Chesterfield County (herein County) in an office building in a C-3 zone. For purposes of its licensing ordinances, the County classified her as a fortune teller. Under the County’s zoning ordinances, fortune tellers are not allowed to practice in a C-3 zone and must obtain a conditional use permit from the County Director of Planning to practice in allowed zones. Under the County’s business license requirement, the Plaintiff was also required to pay a business license flat-fee tax. While fortune tellers are not the only businesses required to pay the flat-fee tax, they are the only ones penalized for failing to do so.
Plaintiff sued the County in District Court. She alleged that the County’s zoning ordinance and business license requirement violated her First and Fourteenth Amendment rights as well as her statutory rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA).
The County moved to dismiss, alleging that Plaintiff’s complaint was not ripe for judicial consideration because she had not attempted to seek a remedy through the relevant agencies. However, the Court denied the motion stating that Plaintiff could not avail herself of any of the procedures because the County ordinances allow only the property owner to apply for a zone change and she is a tenant in the office building in which she practices.
Addressing Plaintiff’s claim that the business licensing and zoning regulations violated her free speech, the Court pointed out that the ordinances do not ban her from providing advice to her customers. They merely pose a de minimus regulation. The Court noted that every zoning regulation imposes some kind of minimal restriction on speech, but this incidental effect does not violate the right to free speech so long as it is reasonable. The Court the briefly discussed Plaintiff’s free exercise claims. They defined a religious exercise for purposes of the free exercise clause as “whether the faith ‘occupies a place in the lives of its members ‘parallel to that filled by the orthodox belief in God’ in religions more widely accepted in the United States.’” The court points out that Plaintiff expressly disavows a belief in any particular religion on her website. They also note that her practices seem to be rooted in all religions as well as several secular pursuits. That, combined with other factors, counseled against finding that Plainitff is engaged in a religious exercise, and the court therefore did not consider any of her other free exercise claims. The Court then addressed her RLUIPA claims. The court pointed out that the sine que non of the RLUIPA is that you must be engaged in a religious exercise in order to avail yourself of its protections and, as they noted in their analysis of her free exercise claims, she was not engaged in the practice of a religion.
The Court also opines that Plaintiff’s Equal Protection claim was similarly unsupported. The Plaintiff attempted to put fortune tellers in the same class as stage actors, spiritual leaders of other faiths, and other office uses. However, the Court summarily rejected this classification, noting that “[z]oning inherently involves some line drawing.” The court found that the line drawing was reasonable and that Plaintiff was not similarly situated to stage actors or spiritual leaders of other faiths. The Court granted summary judgment to the County on all claims.
Moore-King v. County of Chesterfield, 2011 WL 4589995 (E.D. Va. Sept. 30, 2011)
