Baddock v. Balt. Cnty.

239 Md.App. 467

197 A.3d 546

Irvin M. BADDOCK, et al.

v.BALTIMORE COUNTY, Maryland

No. 1271, Sept. Term, 2017

Court of Special Appeals of Maryland.

November 28, 2018

Argued by: Peter A. Prevas (Prevas and Prevas, on the brief), Baltimore, MD, for Appellant.

Argued by: Peter M. Zimmerman, People's Counsel (Carole S. Demilio, Deputy People's Counsel, on the brief), Towson, MD, for Appellee.

Panel: Meredith, Berger, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ.

Zarnoch, J.

In Alice in Wonderland , the blue caterpillar appeared content to smoke a hookah by day. Here, we primarily consider whether legislation requiring hookah lounges to close at midnight violates due process and equal protection guaranteed by the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. Finding no Constitutional or other legal infirmity, we uphold the restriction as a valid exercise of Baltimore County's police power.

BACKGROUND & PROCEDURAL HISTORY

In May 2014, the Baltimore County Council passed a bill that requires hookah lounges in the County to close between midnight and 6:00 a.m. every day. Specifically, the bill amended the Baltimore County Zoning Regulations ("BCZR") to include a definition of "Hookah Lounge" that restricts hookah lounges' hours of operation. The definition of "Hookah Lounge," codified at Article 1, § 101.1 of the BCZR, is as follows:

HOOKAH LOUNGE—Any facility, establishment, or location whose business operation, whether as its primary use or as an ancillary use, includes the smoking of tobacco or other substances through one or more hookah pipes (also commonly referred to as a hookah, waterpipe, shisha or nareghile), including but not limited to establishments known variously as hookah bars, hookah lounges or hookah cafes. A hookah lounge may only operate from 6:00 a.m. to 12:00 midnight.

This restriction on hours of operation prompted the corporation that operates the Towson Nights hookah lounge ("Towson Nights"), along with the landlord of the Towson Nights premises (collectively, "Appellants"), to challenge the bill on constitutional and other grounds.

Towson Nights contends that, absent the County ordinance, approximately 90% of its business would take place between 11:00 p.m. and 2:00 a.m.¹ (Before the bill went into effect, Towson Nights stayed open until 2:00 a.m. Sunday through Thursday, and until 3:00 a.m. on Fridays and Saturdays.) Thus, Appellants claim that the restriction on business hours was tantamount to a cessation of the business's lawful use, which should have entitled Towson Nights to an "amortization" period longer than the 45 days given to comply with the act.² Appellants further argue: (1) the County's placement of time restrictions in a zoning ordinance is ultra vires ; (2) the requirement to close at midnight violates substantive due process; and (3) singling out hookah lounges, but not similar businesses, violates equal protection.

The bill's constitutionality was first upheld by an administrative law judge, and then, upon a de novo appeal, by the Board of Appeals of Baltimore County.³ The Circuit Court for Baltimore County affirmed the Board's decision. Appellants timely appealed.

DISCUSSION

I. Restricting Hookah Lounges' Hours of Operation Was an Exercise of the County's Police Power.

Contrary to Appellants' position, Baltimore County did not act ultra vires by enacting time restrictions in a zoning regulation. Here, the provision restricting hours of operation is an exercise of the County's police power and not a zoning law, regardless of whether the restriction is encompassed within the BCZR definition of "hookah lounge." See Piscatelli v. Bd. of Liquor License Comm'rs , 378 Md. 623, 639, 837 A.2d 931 (2003) (expressly holding that an act by the General Assembly requiring certain liquor licensees in Baltimore City to cease operations at 2:00 a.m. was "not a zoning law"); id. ("Simply because an enactment ... affects the activities which are otherwise allowed or disallowed under local zoning regulations, does not make the [ ] enactment a ‘zoning law.’ "); see also, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius , 567 U.S. 519, 564, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012) (A legislature's choice of label does not control whether a provision falls within the legislature's constitutional power); Shaarei Tfiloh Congregation v. Mayor and City Council of Balt ., 237 Md. App. 102, 137, 183 A.3d 845 (2018) ("[I]n evaluating whether a development fee is a regulatory charge or a tax, the purpose of the enactment governs rather than the legislative label.") (Internal quotation marks omitted) (quoting E. Diversified Props., Inc. v. Montgomery County, 319 Md. 45, 53, 570 A.2d 850 (1990) ).

Elsewhere in its ordinance, the Baltimore County Council generally authorized hookah lounges as a permitted use.⁴ The partial restriction on hours of operation contained within the definition of "hookah lounge"—bearing all the hallmarks of traditional police power legislation—does not affect whether any particular site within Baltimore County may or may not be operated as a hookah lounge, and is not a zoning law. For this same reason, Appellants' amortization claim is inapplicable: the requirement to close at midnight does not prohibit use as a hookah lounge, and therefore does not render Towson Nights a nonconforming use.⁵ Instead, our inquiry hinges on whether requiring hookah lounges to close at midnight is an otherwise valid exercise of the County's police power.

"The power of a political subdivision of this State to enact laws depends on the extent to which the General Assembly has delegated to it its legislative powers which are plenary, except as limited by constitutional provisions." Montgomery Citizens League v. Greenhalgh , 253 Md. 151, 158, 252 A.2d 242 (1969) (Internal quotation omitted). As a charter county, Baltimore County received a grant of express powers from the General Assembly. See id. at 159, 252 A.2d 242 (explaining how, pursuant to Article XI-A of the Maryland Constitution, the General Assembly "provide[s] a grant of express powers for such County or Counties as may thereafter form a charter"). Accordingly, Baltimore County has the authority to pass local laws upon all matters covered by its grant of express powers from the General Assembly. Those express powers specify that, as a charter county, Baltimore County may "pass any ordinance, resolution, or bylaw not inconsistent with State law that ... may aid in maintaining the peace, good government, health, and welfare of the county." Md. Code (2013), Local Government Article, § 10-206(a)(2). In short, Baltimore County has the express power to pass ordinances to protect the public's health and safety. For the reasons discussed in greater detail below, the County's restriction on hookah lounges' hours of operation falls squarely within this ambit.

II. Requiring Hookah Lounges to Close at Midnight Does Not Violate Due Process.

Appellants contend that requiring hookah lounges to close at midnight is an irrational and arbitrary violation of substantive due process as guaranteed by the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights.

Economic regulation is valid under the United States Constitution when it "rests upon some rational basis within the knowledge and experience of the legislators." United States v. Carolene Prods. Co ., 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Likewise, when determining whether an ordinance satisfies Article 24 of the Maryland Declaration of Rights, "we ask rhetorically whether the legislative enactment, as an exercise of the legislature's police power, bears a real and substantial relation to the public health, morals, safety, and welfare of the citizens of the State or municipality." Tyler v. City of College Park , 415 Md. 475, 500, 3 A.3d 421 (2010). "The rational basis test is highly deferential; it presumes a statute is constitutional and should be struck down only if the reviewing court concludes that the Legislature enacted the statute irrationally or interferes with a fundamental right." DRD Pool Serv., Inc. v. Freed , 416 Md. 46, 67, 5 A.3d 45 (2010). Courts thus "perform a very limited function" when determining whether an economic regulation pursues legitimate governmental ends through rational means: a legislative enactment "will not be held void if there are any considerations relating to the public welfare by which it may be supported." Tyler , 415 Md. at 500, 3 A.3d 421. "Where there are plausible reasons for the legislative action, the court's inquiry is at an end." Id. at 502, 3 A.3d 421.

In attempting to argue that the time restrictions are not rationally related to either the public's health or safety, Appellants claim: (1) mere concerns about potential late-night criminal activity are not a rational justification for the bill; (2) isolated instances of rowdiness by hookah lounge patrons must be dealt with on a case-by-case basis of enforcement, rather than through a categorical regulation aimed at all hookah lounges in the County; and (3) potentially valid health concerns about exposure to tobacco smoke are not rationally addressed by simply requiring hookah lounges to close at midnight. We are not persuaded. To the contrary, the County's regulation is plainly a rational attempt at protecting the public's safety and welfare.

Preventive measures aimed at shielding the public from potential exposure to criminal activity can be a valid exercise of the police power. See Dawson v. State , 329 Md. 275, 285-86, 619 A.2d 111 (1993) (establishment of "preventative" and "prophylactic" 24-hour drug-free zones around schools was a "reasonable way for the General Assembly to limit the potential exposure of children to [ ] activities" such as drug dealing). And here, the record amply demonstrates reasonable grounds for public safety concerns. In the executive summary of the bill...