Posted by: Patricia Salkin | January 31, 2017

Fed. Dist. Court in MD Finds Ordinance Restricting Adult Entertainment Business was not Overbroad

In April 2016, the Prince George’s County issued a cease and desist letter to Plaintiff and other nonconforming adult entertainment businesses within the County. Plaintiff brought action challenging two county zoning ordinances that restricted adult entertainment businesses, seeking a declaratory judgment that the ordinances violated the First and Fourteenth Amendments. In its Complaint, Plaintiff set forth multiple constitutional claims in twelve paragraphs within one count; some paragraphs asserted duplicative claims, and others asserted one theory or portions of a claim. However, the court noted at the outset that a recent case, granted judgment for the County on claims identical to the ones Plaintiff brought, other than its assertion of overbreadth and vagueness. As such, only those two claims were not dismissed outright by the court.

Plaintiff first asserted that the definition of “adult entertainment” in CB-56 was overbroad because it “will burden a multitude of mainstream musical, theatrical, dance productions, art work and even activities in private homes.” Plaintiff provided many examples of physical contact and nudity within the context of mainstream entertainment and art, but did not argue that there was a “realistic danger” that CB-56 reached such conduct. Plaintiff also failed to show how the intent behind such mainstream entertainment could be considered sexually to arouse or excite as opposed to further musical, artistic, or theatrical goals, or otherwise provide entertainment. The court also found that the County’s proposed reading of the intent clause to require that the “primary purpose of the entertainment act was to sexually arouse or excite another person” was a “readily susceptible” limiting construction that further reduced any fear of CB-56 reaching impermissible applications.

As to Plaintiff’s vagueness claim, the court found that although a plaintiff may assert an overbreadth claim on behalf of others, “a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Even if Plaintiff had standing, however, the ordinances would still survive its vagueness challenge, as it was not clear what terms Plaintiff alleged were unconstitutionally vague. The court believed that Plaintiff could have referred to the term “premise”, but even so Plaintiff failed to allege plausibly that the term “premise” was unconstitutionally vague, and it was clear that the ordinances did not regulate private conduct within a home. The court held that because the restrictions in CB-46 and CB-56 were placed in the section of the County Code relating to commercial and industrial zoning, it was apparent that the ordinances applied only to businesses or “establishments” offering adult entertainment.

Nico Enterprises, Inc. v. Prince George’s County, Maryland, 186 F.Supp.3d 489 (D MD. 2016)

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