Auditorium v. Prince George's Cnty.

MAAGES AUDITORIUM; CD15CL2001, INC., d/b/a Bazz and Crue,d/b/a X4B Lounge; JOHN DOE; JANE DOE,for all those similarly situated; D2, Plaintiffs - Appellants, v. PRINCE GEORGE'S COUNTY, MARYLAND, Defendant - Appellee.

NICO ENTERPRISES, INC., d/b/a Nico Banquet Hall; JOHN DOE;

JANE DOE, On Behalf of Themselves and All Others Similar Situated, Plaintiffs - Appellants, v. PRINCE GEORGE'S COUNTY, MARYLAND, Defendant - Appellee.

No. 16-1321

No. 16-1699

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: January 24, 2017

March 15, 2017

UNPUBLISHED

Appeals from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District Judge. (8:13-cv-01722-DKC; 8:15-cv-02832-DKC)

Before NIEMEYER, TRAXLER, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael Lloyd Smith, SMITH, GRAHAM & CRUMP, LLC, Largo, Maryland, for Appellants. Jared Michael McCarthy, Deputy County Attorney, PRINCE GEORGE'S COUNTY OFFICE OF LAW, Upper Marlboro, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Maages Auditorium and Nico Enterprises, two adult entertainment establishments in Prince George's County, Maryland, appeal the district court's denial of their constitutional challenges to a county zoning ordinance. Maages also appeals the district court's decision to dismiss its claims on behalf of two other plaintiffs for lack of standing. Finding no error in the district court's reasoning, we affirm.

I.

A.

This case arises from a series of constitutional challenges to a zoning ordinance in Prince George's County. Starting in 2010, the County's zoning council passed a series of ordinances regulating areas where adult entertainment businesses could operate.

The first ordinance, CB-46-2010, regulated the zones in which these businesses could locate and imposed various other rules restricting their operation. It defined "adult entertainment" as:

[A]ny exhibition, performance or dance of any type conducted in a premise where such exhibition, performance or dance involves a person who:

(A) Is unclothed or in such attire, costume or clothing as to expose to view any portion of the breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals; or

(B) Touches, caresses or fondles the breasts, buttocks, anus, genitals or pubic region of another person, or permits the touching, caressing or fondling of his/her own breasts, buttocks, anus, genitals or pubic region by another person, with the intent to sexually arouse or excite another person.

Prince George's Cty. Code § 27-107.01 (2010).

The ordinance also banned such businesses from operating anywhere in the County except for in an "I-2" industrial zone, and limited their hours of operation to 5 p.m. to 3 a.m. Prince George's Cty. Code §§ 27-461, 473, 475.06.06. Finally, the ordinance required these businesses to be more than a thousand feet from any school, residential zone, land used for residential purposes, or other adult entertainment building. Id. § 27-475.06.06.

The second ordinance, CB-56-2011, amended the definition of "adult entertainment" in subsection (A) above by adding the italicized language below:

Is unclothed or in such attire, costume or clothing as to expose to view any portion of the breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals with the intent to sexually arouse or excite another person

Prince George's Cty. Code § 27-107.01 (2011) (emphasis added).

The ordinance also provided existing adult entertainment businesses in certain non I-2 zones with an option to apply for a "special exception," which allows existing businesses to remain in non-conforming locations. Section 27-317 of the County Code lists a series of criteria that zoning officials use when deciding whether to grant such an exemption.

B.

Maages Auditorium, an adult entertainment business located outside an I-2 zone in the County, and John and Jane Doe—a representative customer and employee of the establishment—filed an eight-count complaint challenging the ordinances in the UnitedStates District Court for the District of Maryland. Of those counts, only the following are relevant to this appeal:

• Count I, alleging that the ordinances violate the Equal Protection Clause of the Fourteenth Amendment, by burdening only adult entertainment businesses;

• Counts II, III, and VI, alleging that the ordinances and the "special exception" provision violate the First Amendment by operating as a prior restraint on speech, lacking adequate procedural safeguards, and allowing for unbridled administrative discretion;

• Count V, alleging that the ordinances and special exception are unconstitutionally vague; and

• Count VII, alleging that the ordinances fail to provide adequate alternative avenues of communication for adult entertainment.¹

The district court dismissed John and Jane Doe as parties for a lack of standing, and dismissed Count IV as unripe. Maages Auditorium v. Prince George's Cty., Md., 4 F. Supp. 3d 752, 762 (D. Md. 2014) ("Maages I"). The court also granted summary judgment in favor of the County on Counts I, II, III, V, and VI. Id. at 779. Following discovery, the district court granted summary judgment in the County's favor on Counts VII and VIII. Maages Auditorium v. Prince George's Cty., Md., No. 13-1722, 2016 WL 827385, at *1 (D. Md. Mar. 3, 2016) ("Maages II"). Maages appeals the district court's decisions on Counts I, II, III, V, VI, and VII.

Another adult entertainment business, Nico Enterprises, filed a similar complaint against the County, arguing that the zoning laws violated Nico's rights under the First, Fourth, Fifth, and Fourteenth Amendments, in part because the laws were vague, overbroad, and unconstitutional on their face and as applied. The County filed a motion to dismiss, which the court granted. Nico Enters., Inc. v. Prince George's Cty., Md., 186 F. Supp. 3d 489, 492 (D. Md. 2016). Regarding the overbreadth claim, the district court found that the ordinance's language could be interpreted in a limited way to avoid impermissibly applying to protected speech. Id. at 498-99. As for the vagueness claim, the district court ruled that Nico lacked standing to bring the claim, and even if it had standing, the ordinance's terms were sufficiently well-defined to give an average person a reasonable understanding of the regulations. Id. at 499-500. Nico challenges the district court's ruling on its overbreadth and vagueness claims.

II.

We review de novo a district court's grant of a motion to dismiss under Rule 12(b)(6). Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 179-80 (4th Cir. 2009). "In considering such a motion, we accept as true all well-pleaded allegations and view the complaint in the light most favorable to the plaintiff." Id. at 180. To survive such a motion, "'[f]actual allegations must be enough to raise a right to relief above the speculative level' and have 'enough facts to state a claim to relief that is plausible on its face.'" Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).

We also review a district court's grant of summary judgment de novo, viewing the facts and reasonable inferences in a light most favorable to the non-moving party. EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). Once the moving party has satisfied the initial burden that no material facts are in dispute, the non-moving party bears the burden of demonstrating that a genuine dispute of material fact exists. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). In meeting this burden, the non-moving party cannot rely on conclusory or speculative statements based on "[a] mere 'scintilla of evidence' . . . . Rather, the evidence must be such that the jury reasonably could find for the nonmoving party." Phillips v. CSX Transp., Inc., 190 F.3d 285, 287-88 (4th Cir. 1999).

III.

A.

Maages first challenges the district court's ruling dismissing John Doe and Jane Doe for lack of standing. Maages argues that both John and Jane Doe wish to remain anonymous, and that a plaintiff has "absolute standing to raise First Amendment arguments" on behalf of others. Maages's Br. at 25 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)). As the district court correctly recognized, however, Maages did not allege in its complaint that John and Jane Doe wished to "keep their identities private," nor did Maages make "an overbreadth challenge to the zoning regulations," which would enlarge the class of plaintiffs with standing. Maages I, 4 F. Supp. 3d at 762. While district courts have discretion to permit parties to proceed anonymously, James v.Jacobson, 6 F.3d 233, 238 (4th Cir. 1993), Maages cannot advance a new argument on appeal that it failed to preserve in the district court, Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).

Maages next challenges the district court's decision to grant summary judgment in favor of the County on Maages's equal protection claim (Count I). Maages made two equal protection challenges in the district court: that the County was discriminating against adult entertainment businesses by applying different regulations to them, and that County officials were singling out Maages in particular for differential treatment. The district court properly granted summary judgment to the County on both challenges.

"Special regulation of one commercial enterprise with particular externalities but not of other enterprises lacking those secondary effects has long been recognized not to violate equal protection." Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 831 (4th Cir. 1979). The district court correctly recognized that Maages did not claim to be a "member[] of any suspect class, and consequently, the claim [was] subject to rational basis review." Maages I, 4 F. Supp. 3d at 776. Citing the Supreme Court's decision in FCC v. Beach Communications, Inc., the district...