Posted by: Patricia Salkin | July 27, 2016

Fed. Dist. Court in MD Dismisses Adult Entertainment Club’s Equal Protection Claim

On April 1, 2016, the County issued a cease and desist letter to Plaintiff KO-ME, LLC, doing business as the Mile High Club (“Mile High”). The letter ordered that Mile High “cease and desist all adult entertainment activities no later than 5:00 p.m. Friday, April 8, 2016.” Mile High filed a complaint seeking a declaratory judgment  two recent County ordinances (CB-46-2010 and CB-56-2011) that restrict adult entertainment businesses were unconstitutional. 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 eight (8) years”.

Here, beyond conclusory statements, Plaintiffs made no demonstration that the zoning ordinances are motivated by unconstitutional considerations. Even though Defendant did not present 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. The court determined that Defendant made its showing under Fourth Circuit jurisprudence to satisfy the First Amendment’s requirement that the law advances a substantial governmental interest and consequently met the Equal Protection’s rational basis standard.

Ko-Me, LLC v Price George’s County, 2016 WL 3997317 (D. MD. 7/26/2016)

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