Legend Night Club v. Miller

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEGEND NIGHT CLUB, 

Plaintiff-Appellee,

and

INTERNATIONAL NITE LIFE

ENTERPRISES, INCORPORATED, trading

as The Classic III Supper Club,

a/k/a The Classics,

Plaintiff,

v.

DENNIS B. MILLER; EARL J.  No. 09-1540

HOWARD; FRANKLIN D. JACKSON;

NAM K. KIM; SHAIHI MWALIMU;

STATE OF MARYLAND,

Defendants-Appellants,

and

ROBERT EHRLICH; PRINCE GEORGE’S

COUNTY GOVERNMENT; PRINCE

GEORGE’S COUNTY, MARYLAND;

NORMA LINDSAY,

Defendants.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, Senior District Judge.

(1:05-cv-02138-MJG)

Argued: September 21, 2010

Decided: February 17, 2011

2 LEGEND NIGHT CLUB v. MILLER

Before WYNN, Circuit Judge, HAMILTON, Senior Circuit

Judge, and Mark S. DAVIS, United States District Judge

for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Wynn wrote the major-

ity opinion, in which Judge Davis joined. Senior Judge Ham-

ilton wrote a separate opinion concurring in part and

dissenting in part.

COUNSEL

ARGUED: Matthew John Fader, OFFICE OF THE ATTOR-

NEY GENERAL OF MARYLAND, Baltimore, Maryland,

for Appellants. Jimmy A. Bell, LAW OFFICE OF JIMMY A.

BELL, PC, Bowie, Maryland, for Appellee. ON BRIEF:

Douglas F. Gansler, Attorney General of Maryland, Charles

J. Butler, Assistant Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF MARYLAND, Baltimore,

Maryland, for Appellants.

OPINION

WYNN, Circuit Judge:

"Under the doctrine of overbreadth, a statute violates the

First Amendment it if prohibits a substantial amount of pro-

tected expression." PSINet, Inc. v. Chapman, 362 F.3d 227,

234 (4th Cir. 2004). Defendants appeal a permanent injunc-

tion prohibiting the enforcement of a Maryland statute due to

its overbreadth. We conclude that the statute—which limits

the range of permissible conduct, attire, and entertainment at

establishments licensed to serve alcoholic bever-

ages—prohibits a broad swath of expression protected by the

LEGEND NIGHT CLUB v. MILLER 3

First Amendment and is not susceptible to a limiting construc-

tion. Accordingly, we affirm the permanent injunction prohib-

iting enforcement of the statute.

I.

Plaintiffs The Legend Night Club ("The Legend") and

International Nite Life Enterprises, Inc. ("The Classics") oper-

ate adult entertainment establishments in Prince George’s

County, Maryland. Plaintiffs are licensed by the Prince

George’s County Board of License Commissioners to serve

alcoholic beverages at these establishments.

In 2005, Plaintiffs filed separate complaints challenging the

constitutionality of statutory amendments, which, if enforced,

would prohibit them from providing both alcoholic beverages

and adult entertainment. The complaint filed by The Legend

named as defendants the State of Maryland, Prince George’s

County, the Prince George’s County Board of License Com-

missioners, Governor Robert Ehrlich, and the individual

members of the Prince George’s County Board of License

Commissioners (Franklin D. Jackson, Earl J. Howard, Nam

K. Kim, Dennis B. Miller, and Shaihi Mwalimu). The Clas-

sics’ complaint included the same entities and individuals as

defendants, with the exception of Governor Ehrlich. The Clas-

sics’ complaint also added as a defendant Norma Lindsay, the

Chief Liquor Inspector for the Board of License Commission-

ers. In October 2005, based on the joint stipulations of the

parties, the district court dismissed the claims against Gover-

nor Ehrlich and the State of Maryland. The State later inter-

vened to defend the statute’s constitutionality under 28 U.S.C.

§ 2403(b).

At issue in both cases was a statutory amendment that

added Prince George’s County to a list of jurisdictions in

which certain attire and conduct is prohibited in establish-

ments licensed to sell alcoholic beverages. Specifically, the

statute—effective on October 1, 2005—forbids a person from:

4 LEGEND NIGHT CLUB v. MILLER

(1) Be[ing] employed or used in the sale or service

of alcoholic beverages in or upon the licensed prem-

ises while the person is unclothed or in attire, cos-

tume or clothing so as to expose to view any portion

of the female breast below the top of the areola or of

any portion of the pubic hair, anus, cleft of the but-

tocks, vulva or genitals;

(2) Be[ing] employed or act[ing] as a hostess or act[-

ing] in a similar-type capacity to mingle with the

patrons while the hostess or person acting in a

similar-type capacity is unclothed or in attire, cos-

tume or clothing as described in paragraph (1) of this

subsection;

(3) Encourag[ing] or permit[ting] any person on the

licensed premises to touch, caress or fondle the

breasts, buttocks, anus or genitals of any other per-

son; or

(4) Permit[ting] any employee or person to wear or

use any device or covering exposed to view, which

simulates the breast, genitals, anus, pubic hair or any

portion of it.

Md. Code, Art. 2B § 10-405(c) (2005). The statute also

restricts certain entertainment, specifically prohibiting a per-

son from:

(1) Permit[ting] any person to perform acts of or acts

which simulate:

(i) The act of sexual intercourse, masturbation,

sodomy, bestiality, oral copulation, flagellation or

any sexual acts which are prohibited by law;

(ii) The touching, caressing or fondling of the

breast, buttocks, anus or genitals; or

LEGEND NIGHT CLUB v. MILLER 5

(iii) The display of the pubic hair, anus, vulva or

genitals;

(2) Permit[ting] any entertainer whose breasts or but-

tocks are exposed (subject to the restrictions of para-

graph (1) of this subsection) to perform closer than

six feet from the nearest patron; or

(3) Permit[ting] any person to use artificial devices

or inanimate objects to depict, perform or simulate

any activity prohibited by paragraph (1) of this sub-

section.

Id. § 10-405(d).

Under the statute, an establishment found engaging in pro-

hibited activities would have its license to sell alcoholic bev-

erages revoked. Id. § 10-405(b) (2005) ("Any license issued

under the provisions of this article shall be revoked if . . . any

of the activities listed in this section are found to occur on any

premises or location for which the license was issued.").

The statute also exempts, under a grandfather clause, cer-

tain long-term license holders from potential license revoca-

tion. That clause provides an exemption for:

a current alcoholic beverages license holder that cur-

rently conducts an activity that is made unlawful by

this Act only if the license holder:

(a) received approval from the Board to conduct the

activity on or before August 15, 1981; and

(b) has owned the licensed premises continuously

since September 1, 1981.

2005 Md. Laws 262 § 2.

6 LEGEND NIGHT CLUB v. MILLER

Plaintiffs contend that the statute as amended is overbroad

in violation of the First Amendment. Plaintiffs also contend

that the grandfather clause under the statute was intentionally

drafted to provide an exemption for the Ebony Inn, an estab-

lishment owned by a former state senator. As such, Plaintiffs

argue that the grandfather clause violated the Equal Protection

Clause of the Fourteenth Amendment and Article 24 of the

Maryland Declaration of Rights.

Plaintiffs sought a prohibitory injunction and a declaration

that the statute as amended was unconstitutional. On Septem-

ber 30, 2005, the district court entered a temporary restraining

order enjoining Defendants from enforcing the statute as

amended. On March 27, 2006, the district court issued a pre-

liminary injunction forbidding enforcement of the statute. The

district court then stayed and administratively closed the cases

on July 17, 2006, recognizing that they "may be affected, and

possibly mooted, by action in the next session of the Mary-

land Legislature." By letter of December 20, 2007, the State

of Maryland advised the district court that although "[t]he

Court issued the stay to provide the General Assembly an

opportunity to amend the statute at issue in this litigation, . . .

[d]uring the 2007 Legislative Session, the General Assembly

declined to take action on this statute." The State of Maryland

also moved to reopen the cases as expressly allowed by the

district court’s orders. The district court granted the State’s

motion on April 2, 2008 and, in the same order, consolidated

The Legend’s and The Classics’ cases.

After a bench trial, the district court issued a written opin-

ion on April 1, 2009. The court held that the statute as

amended was unconstitutionally overbroad and not readily

susceptible to a limiting construction. The court further held

that the grandfather clause violated the Equal Protection

Clause and declined to sever the grandfather clause from the

statute. Accordingly, on April 30, 2009, the district court

entered a permanent injunction stating that "[n]either Defen-

dant Prince George’s County Board of License Commission-

LEGEND NIGHT CLUB v. MILLER 7

ers nor any other person or entity shall take action to close

Plaintiffs’ premises, or to suspend or revoke their licenses,

based upon any alleged violation of Md. Ann. Code, Article

2B, Section 10-405, as amended by H.B. 1133." The State of

Maryland and individual defendants Franklin D. Jackson, Earl

J. Howard, Nam K. Kim, Dennis B. Miller, and Shaihi

Mwalimu (collectively "Defendants") appealed.

II.

Defendants first argue that the district court erred in finding

the statute overbroad because there was no evidence that the

law would be applied unconstitutionally. They further contend

that even if the statute is facially overbroad, it is susceptible

to a limiting construction capable of ensuring its constitution-

ality.

The district court issued a permanent injunction after con-

cluding that the statute was unconstitutionally overbroad.

Under "well-established principles of equity," a plaintiff seek-

ing a permanent injunction must demonstrate:

(1) that it has suffered an irreparable injury; (2) that

remedies available at law, such as monetary dam-

ages, are inadequate to compensate for that injury;

(3) that, considering the balance of hardships

between the plaintiff and defendant, a remedy in

equity is warranted; and (4) that the public interest

would not be disserved by a permanent injunction.

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

We review the grant of a permanent injunction for an abuse

of discretion. Virginia Soc’y for Human Life, Inc. v. Fed.

Election Comm’n, 263 F.3d 379, 392 (4th Cir. 2001). How-

ever, the "underlying factual findings are reviewed for clear

error, and legal conclusions are reviewed de novo." Id.

Because the district court issued a permanent injunction after

concluding that the statute was unconstitutionally overbroad,

8 LEGEND NIGHT CLUB v. MILLER

we begin our inquiry with a de novo review of the district

court’s holding.

Under the overbreadth doctrine, a plaintiff

whose own speech or expressive conduct may val-

idly be prohibited or sanctioned is permitted to chal-

lenge a statute on its face because it also threatens

others not before the court—those who desire to

engage in legally protected expression but who may

refrain from doing so rather than risk prosecution or

undertake to have the law declared partially invalid.

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985).

Consequently, even if Plaintiffs have no intention of offering

artistic performances at their establishments, they are entitled

to mount the instant facial challenge to the statute to protect

the rights of those who wish to do so. Giovani Carandola,

Ltd. v. Bason, 303 F.3d 507, 512 (4th Cir. 2002) ("Carandola

I")("[T]he overbreadth doctrine allows Carandola to assert the

First Amendment rights of those who do wish to ‘present or

act’ in a ballet or other theatrical production, even if Caran-

dola does not.").

Plaintiffs argue that the statute is unconstitutionally over-

broad because it "limits activity which can include a ballet, a

Shakespearian play, and other mainstream productions" of

artistic merit. Brief of Appellee at 18. Because the prohibition

against statutory enforcement that accompanies a finding of

overbreadth constitutes "strong medicine," the Supreme Court

has counseled lower courts to declare statutes facially over-

broad "sparingly and only as a last resort." Broadrick v. Okla-

homa, 413 U.S. 601, 613 (1973). Accordingly, "where

conduct and not merely speech is involved, . . . the over-

breadth of a statute must not only be real, but substantial as

well, judged in relation to the statute’s plainly legitimate

sweep." Id. at 615; see also New York v. Ferber, 458 U.S.

747, 771 (1982) ("[A] law should not be invalidated for over-

LEGEND NIGHT CLUB v. MILLER 9

breadth unless it reaches a substantial number of impermissi-

ble applications . . . .").

The purpose for which legislation is adopted dictates the

level of scrutiny applied to ascertain whether the law exceeds

its "plainly legitimate sweep." "If the regulation was adopted

to burden disfavored viewpoints or modes of expression, a

court applies strict scrutiny." Carandola I, 303 F.3d at 512. In

contrast, content-neutral statutes receive intermediate scru-

tiny. See City of Los Angeles v. Alameda Books, Inc., 535 U.S.

425, 434 (2002). We have previously noted that

measures to regulate sexually explicit entertainment

outside the home receive intermediate scrutiny if

they are not premised on a desire to suppress the

content of such entertainment, but rather to address

the harmful secondary effects of such entertainment:

higher crime rates and lower property values, and

unwanted interactions between patrons and enter-

tainers, such as public sexual conduct, sexual assault,

and prostitution.

Carandola I, 303 F.3d at 513 (citations omitted).

Defendants contend that the statute was amended to address

the secondary effects of presenting nude dancing in establish-

ments that serve alcohol. Brief of Appellant at 8. Nothing in

the amendment itself, however, indicates the motivation for

its adoption. Cf. City of Erie v. Pap’s A.M., 529 U.S. 277, 290

(2000) (plurality opinion) (noting that the preamble to the

ordinance at issue stated purpose of prohibiting entertainment

that "provid[es] an atmosphere conducive to violence, sexual

harassment, public intoxication, prostitution, the spread of

sexually transmitted diseases and other deleterious effects").

Nor did Defendants, for example, present any studies relied

upon by the Maryland General Assembly to establish the sec-

ondary effects supposedly targeted by the amendment.

10 LEGEND NIGHT CLUB v. MILLER

Instead, Defendants ask this Court to infer legislative pur-

pose from the fact that letters from various municipalities in

support of the amendment indicated a general concern for cer-

tain secondary effects. However, we will not impute the

motives of entities lobbying for legislation to the General

Assembly itself. See Circuit City Stores, Inc. v. Adams, 532

U.S. 105, 120 (2001) (stating that the Court "ought not attri-

bute to Congress an official purpose based on the motives of

a particular group that lobbied for or against a certain pro-

posal"). We also decline Defendants’ invitation to infer that

because a triple-homicide occurred near a strip club before the

adoption of the amendment, the General Assembly intended,

with the amendment, to reduce such violence—particularly

when Defendants offered no evidence that the legislature even

considered this particular incident in conjunction with the

amendment.

When considering a substantially similar statute that also

lacked evidence of legislative intent in Carandola I, this

Court applied intermediate scrutiny. See Carandola I, 303

F.3d at 514 ("Even though the Commission has submitted no

direct evidence of legislative motive, we believe that prece-

dent requires us to evaluate the challenged restrictions as

content-neutral provisions aimed at secondary effects."). In

doing so, we noted that the challenged statute was part of a

larger body of alcohol control law "enacted to prevent illegal

and disorderly conduct that may arise where alcohol is served

to the public." Id. at 514-15 (citation omitted).

The statute at issue here is similarly part of a broad article

in the Maryland Code regulating the sale of alcohol "for the

protection, health, welfare and safety" of the people of Mary-

land. See Md. Code, Art. 2B § 1-101 (2005); see also State v.

Petrushansky, 183 Md. 67, 71, 36 A.2d 533, 535 (1944) (stat-

ing that statutory interpretation of a provision in Article 2B

requires the court to consider all parts of the Article together,

"as they form part of a general system"). Moreover, Article

2B specifically contemplates license revocation when "neces-

LEGEND NIGHT CLUB v. MILLER 11

sary to promote the peace or safety of the community in

which the place of business is situated." Md. Code, Art. 2B,

§ 10-401 (2005). Thus, as in Carandola I, we conclude that

at least one purpose of the statute was to address the second-

ary effects resulting from the combination of alcohol and

nude dancing. "Within the limited field of regulations on pub-

lic exhibitions of adult entertainment, this suffices for us to

treat the [statute] as content-neutral and so subject only to

intermediate scrutiny." Carandola I, 303 F.3d at 515 (citation

omitted).

To withstand intermediate scrutiny, the challenged regula-

tion must "materially advance[ ] an important or substantial

interest by redressing past harms or preventing future ones."

Satellite Broad. & Commc’ns Ass’n v. FCC, 275 F.3d 337,

356 (4th Cir. 2001). Again, Defendants contend that the stat-

ute was amended to address the secondary effects arising

from the combination of adult entertainment and alcohol con-

sumption. As noted by the district court, however, "Defen-

dants have not produced evidence of harmful secondary

effects in Prince George’s County, Maryland."

"This failure might not pose a problem if the challenged

restrictions applied only to bars and clubs that present nude or

topless dancing." Carandola I, 303 F.3d at 516. "Such enter-

tainment has ‘a long history of spawning deleterious effects,’

including ‘prostitution and the criminal abuse and exploitation

of young women,’ and in most cases a city or state need carry

only a minimal burden to demonstrate its interest in regulation

of such activity." Id. (quoting Steakhouse, Inc. v. City of

Raleigh, 166 F.3d 634, 637 (4th Cir. 1999)). However, even

assuming arguendo that the statute materially advances an

important and current governmental interest, the nature of

Plaintiffs’ overbreadth challenge compels us to consider

whether the statute adversely affects a substantial amount of

protected speech beyond that restricted under the statute’s

"plainly legitimate sweep." Id. at 515; see also Satellite

Broad. & Commc’ns Ass’n, 275 F.3d at 356 ("If the regulation

12 LEGEND NIGHT CLUB v. MILLER

materially advances some important or substantial interest, we

then . . . ask whether the regulation is narrowly tailored to

serve that interest."); Shelton v. Tucker, 364 U.S. 479, 488

(1960) ("[E]ven though the governmental purpose be legiti-

mate and substantial, that purpose cannot be pursued by

means that broadly stifle fundamental personal liberties when

the end can be more narrowly achieved.").

The statute imposes restrictions that extend well beyond

strip clubs and other establishments primarily offering adult

entertainment. Like the regulation at issue in Carandola I,

"the plain language of the restrictions prohibits on licensed

premises any entertainment that ‘simulate[s]’ sexual behavior,

even if performers are fully clothed or covered, and even if

the conduct is integral to the production—for example, a

political satire, a Shakespeare play depicting young love, or

a drama depicting the horrors of rape." Carandola I, 303 F.3d

at 516. These restrictions "have the same prohibitory effect on

much non-erotic dance—such as a ballet in which one dancer

touches another’s buttock during a lift—and all nudity or sim-

ulated nudity, however brief, in productions with clear artistic

merit—such as the Pulitzer Prize winning play, Wit." Id. We

recognize that "[e]xpressive conduct enjoys less protection

than does pure speech and restrictions on its exercise are more

likely to be constitutionally permissible." Steakhouse, 166

F.3d at 637 (citation omitted). However, a statute prohibiting

such a broad swath of expressive conduct cannot pass consti-

tutional muster.

Defendants do not argue that restricted artistic perfor-

mances produce the secondary effects purportedly targeted by

the statute. Instead, they argue that the statute is immune from

this overbreadth challenge because no establishment licensed

to serve alcohol in Prince George’s County presents produc-

tions of artistic merit that would fall within the statute’s

ambit. "However, where the statute unquestionably attaches

sanctions to protected conduct, the likelihood that the statute

will deter that conduct is ordinarily sufficiently great to justify

LEGEND NIGHT CLUB v. MILLER 13

an overbreadth attack." City Council of Los Angeles v. Tax-

payers for Vincent, 466 U.S. 789, 800 n.19 (1984) (citation

omitted). The Constitution provides protection "from over-

broad laws that chill speech within the First Amendment’s

vast and privileged sphere." Ashcroft v. Free Speech Coali-

tion, 535 U.S. 234, 244 (2002). As noted by the district court,

the statute "would prohibit any existing, or new, liquor

licensee from starting to present serious artistic performers

that would violate the restrictions." Thus, as in Carandola I,

we conclude that the statute at issue reaches a substantial

number of impermissible applications.

Defendants attempt to distinguish our holding in Carandola

I on the basis that, in that case, the Commission charged with

enforcing the challenged regulation conceded that the law

would reach artistic productions at a number of venues

licensed to serve alcohol. In contrast, Defendants made no

such concessions here and instead argue, based on the history

of the statute’s enforcement, that the statute would be applied

only to adult entertainment establishments. Essentially,

Defendants implore this Court to ignore the plain language of

the statute and rely instead on the government’s assurances

that the statute would not be unconstitutionally enforced. In

support of this plea, Defendants submitted affidavits from

enforcement authorities in nine counties where the statute cur-

rently applies, each stating that in the relevant jurisdiction,

§ 10-405 has never been enforced against an establishment

offering productions of clear artistic merit. Nevertheless, no

limitation on the scope of the sweeping prohibitions exists in

the statute.

Generally, however, we will not strike down a statute as

facially overbroad if its constitutionality can be preserved

through a "limiting construction" or "partial invalidation"

capable of "remov[ing] the seeming threat or deterrence to

constitutionally protected expression." Broadrick, 413 U.S. at

613; see also Carandola I, 303 F.3d at 512. Indeed, as a gen-

eral principle "every reasonable construction must be resorted

14 LEGEND NIGHT CLUB v. MILLER

to, in order to save a statute from unconstitutionality."

Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. &

Constr. Trades Council, 485 U.S. 568, 575 (1988)(quoting

Hooper v. California, 155 U.S. 648, 657 (1895)). That said,

we will not alter a state statute unless the regulation is "read-

ily susceptible" to the proffered construction. Giovani Caran-

dola, Ltd. v. Fox, 470 F.3d 1074, 1084 (4th Cir. 2006)

("Carandola II"); see also Va. Soc. for Human Life, Inc. v.

Caldwell, 152 F.3d 268, 270 (4th Cir. 1998) (explaining that

"federal courts are without power to adopt a narrowing con-

struction of a state statute unless such a construction is rea-

sonable and readily apparent" (quoting Boos v. Barry, 485

U.S. 312, 330-31 (1988)(emphasis added)). Indeed, we must

be careful not to encroach upon the domain of a state legisla-

ture by "rewrit[ing] a law to conform it to constitutional

requirements." PSINet, 362 F.3d at 236 (quoting Reno v. Am.

Civil Liberties Union, 521 U.S. 844, 884-85 (1997)). There-

fore "narrowing constructions are only appropriate when ‘the

text or other source of congressional intent’ identifies a clear

line that a court could draw." Id. (quoting Reno, 521 U.S. at

884).

While Defendants argue that the statute has been, and will

be, enforced only against adult entertainment establishments,

they do not propose a way to read the statute such that it

would apply only to those licensees. A history of limited

enforcement is insufficient to establish the susceptibility of a

statute to a limiting construction, particularly when the lan-

guage of the statute itself lacks any limitation on the scope of

enforcement. See Newsom ex rel. Newsom v. Albemarle Cnty.

Sch. Bd., 354 F.3d 249, 260 n.8 (4th Cir. 2003) (noting that

even though school dress code had been enforced only to ban

"images of gunmen aiming high-powered firearms," this was

insufficient to establish a limiting construction when the dress

code did "not even remotely suggest" such a limitation); see

also United States v. Stevens, 130 S. Ct. 1577, 1591 (2010)

("[T]he First Amendment protects against the Government; it

does not leave us at the mercy of the noblesse oblige. We

LEGEND NIGHT CLUB v. MILLER 15

would not uphold an unconstitutional statute merely because

the Government promised to use it responsibly."). Indeed, the

language of the statute here suggests no limit whatsoever to

its enforcement, and the Defendants’ failure to "even suggest

a possible limiting construction" is consistent with this

Court’s conclusion that the statute is not readily susceptible to

a limiting construction. Carandola II, 470 F.3d at 1078 (not-

ing absence of suggested limiting construction in Carandola

I court’s finding that statute was not readily susceptible to

limiting construction).

The Maryland General Assembly could, of course, appro-

priately limit the statute. Notably, to rescue the statute at issue

in Carandola I from unconstitutional overbreadth, the North

Carolina legislature amended it to include a "carve-out" provi-

sion stating that:

[t]his section does not apply to persons operating

theaters, concert halls, art centers, museums, or simi-

lar establishments that are primarily devoted to the

arts or theatrical performances, when the perfor-

mances that are presented are expressing matters of

serious literary, artistic, scientific, or political value.

N.C. Gen. Stat. § 18B-1005.1(c) (2005); see Carandola II,

470 F.3d at 1084; Imaginary Images, Inc. v. Evans, 612 F.3d

736, 751 (4th Cir. 2010) ("Virginia’s prohibition on mixed

beverages at venues like Papermoon is within the statutes’

legitimate sweep. And cultural venues offering ‘matters of

serious literary, artistic, scientific, or political value’ are prop-

erly exempted."). However, where a statute requires an

amendment to pass constitutional muster, we cannot usurp the

legislature’s role and rewrite it. See PSINet, 362 F.3d at 236.

The dissent argues that subsection (d) of the statute may be

excised, leaving the remainder of the statute, including sub-

section (c), fully operative. However, to make it fully opera-

tive, in addition to severing subsection (d), the dissent also

16 LEGEND NIGHT CLUB v. MILLER

imposes a narrowing construction on subsection (c) that, like

excision of subsection (d), was never suggested by Defen-

dants. While it might be argued that the Maryland Code’s

general severability provision and the "[s]eparability" provi-

sion in its alcoholic beverages article suggest that partial

invalidation should be attempted here, Md. Code, Art. 1 § 23,

Md. Code, Art. 2B § 1-104, the dissent relies upon a complex

combination of unsolicited partial invalidation and narrowing

construction in an effort to save the statute. These efforts to

save the statute stand in stark contrast to the inaction of the

Maryland legislature. After the district court issued its Prelim-

inary Injunction Order prohibiting enforcement of the statute

at issue, it stayed the proceedings to give the Maryland legis-

lature an opportunity to amend the statute. However, the leg-

islature "declined" to take action on this statute in the 2007

session, and failed to take any action during the 2008 and

2009 sessions before the district court’s permanent injunction

of April 2009. Like the Supreme Court,

we are wary of legislatures who would rely on our

intervention, for "[i]t would certainly be dangerous

if the legislature could set a net large enough to catch

all possible offenders, and leave it to the courts to

step inside" to announce to whom the statute may be

applied. United States v. Reese, 92 U.S. 214, 221

(1876). "This would, to some extent, substitute the

judicial for the legislative department of the govern-

ment." Ibid.

Ayotte v. Planned Parenthood of Northern New Eng., 546

U.S. 320, 330 (2006).

The dissent’s efforts to save the statute would usurp the

legislature’s role, rewrite the statute, and leave it without the

important carve-out provision for matters of literary, artistic,

scientific, or political value relied upon by this Court in Car-

andola II, 470 F.3d at 1084-85, and Imaginary Images, 612

F.3d at 751.

LEGEND NIGHT CLUB v. MILLER 17

In summary, because we hold that the statute as amended

(1) prohibits a substantial amount of expression that is pro-

tected by the First Amendment and (2) is not readily suscepti-

ble to a limiting construction, we conclude that the district

court did not err in its determination that the statute was

unconstitutionally overbroad.

Given that conclusion, while the district court did not dis-

cuss the test for granting a permanent injunction, we discern

no abuse of discretion in the court’s decision to issue the

injunction. As to irreparable injury, it is well established that

"[t]he loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable

injury." Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality

opinion) (citation omitted). Further, the threatened injury in

this case (i.e., license revocation) constituted "direct penaliza-

tion, as opposed to incidental inhibition" of First Amendment

rights, thus making it the sort that could not be remedied

absent an injunction. Hohe v. Casey, 868 F.2d 69, 72-73 (3d

Cir. 1989) (quoting Cate v. Oldham, 707 F.2d 1176, 1188

(11th Cir. 1983). Moreover, monetary damages are inadequate

to compensate for the loss of First Amendment freedoms.

Joelner v. Vill. of Wash. Park, 378 F.3d 613, 620 (7th Cir.

2004). Regarding the third requirement for injunctive relief,

the threatened injury to Plaintiffs easily outweighs whatever

burden the injunction may impose. At a minimum, each Plain-

tiff faces a loss of its license coupled with a loss of valuable

business opportunities. Carandola I, 303 F.3d at 521. By con-

trast, the State of Maryland is in no way harmed by issuance

of an injunction that prevents the state from enforcing uncon-

stitutional restrictions. See Joelner, 378 F.3d at 620 (question-

ing the "harm to a municipality when it is prevented from

enforcing an unconstitutional statute because it is always in

the public interest to protect First Amendment liberties")

(quotation omitted). And fourth, upholding constitutional

rights is in the public interest. Carandola I, 303 F.3d at 521.

Because each of the factors that we consider when deciding

whether to grant injunctive relief weighs in favor of Plaintiffs,

18 LEGEND NIGHT CLUB v. MILLER

we conclude that the district court did not abuse its discretion

by issuing a permanent injunction against the enforcement of

the statute.

III.

Defendants also argue that the district court erred in con-

cluding that the statute’s grandfather clause, exempting cer-

tain long-term licensees from the statute’s ambit, violated the

Equal Protection Clause of the Fourteenth Amendment.

Because the statute is facially overbroad, its enforcement is

"totally forbidden." Carandola I, 303 F.3d at 512 (citing

Broadrick, 413 U.S. at 613, for the proposition that if a statute

is overbroad and cannot be rendered constitutional through a

limiting construction or partial invalidation, "any enforce-

ment" thereof is "totally forbidden"). We therefore do not

need to address this exemption.

IV.

In conclusion, we affirm the district court’s permanent

injunction against the enforcement of Md. Code Art. 2B,

§ 10-405 as amended by H.B. 1133.

AFFIRMED

HAMILTON, Senior Circuit Judge, concurring in part and

dissenting in part:

The majority is correct in holding that the intermediate

level of scrutiny applies to test the constitutionality of Mary-

land Code, Article 2B, § 10-405(c)-(d), as amended by 2005

Md. Laws ch. 262, (the Challenged Statute) under the First

Amendment to the United States Constitution, U.S. Const.

amend I. Applying the intermediate level of scrutiny, subsec-

tion (d) of the Challenged Statute reaches a substantial num-

ber of impermissible applications. However, because

subsection (d) is severable from the remaining provisions of

LEGEND NIGHT CLUB v. MILLER 19

the Challenged Statute, the Challenged Statute should be par-

tially invalidated, rather than facially invalidated, leaving its

remaining provisions intact. Also, I would reach the Equal

Protection Clause challenge against the grandfather clause,

2005 Md. Laws ch. 262, § 2 (the Grandfather Clause), hold

the Grandfather Clause unconstitutional as a violation of the

Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution, U.S. Const. amend. XIV, § 1, and

sever the Grandfather Clause from the Challenged Statute.

Accordingly, I concur in part and dissent in part.

I

A

"Article 2B of the Maryland Code ("Article 2B") compre-

hensively regulates the manufacture, sale, distribution, trans-

portation and storage of alcoholic beverages in [Maryland]."

Paek v. Prince George’s County Bd. of License Comm’rs, 851

A.2d 540, 544 (Md. 2004). "The stated purpose of Article 2B

is ‘to obtain respect and obedience to law and to foster and

promote temperance.’" Id. (quoting Md. Code, Art. 2B, § 1-

101(a)(1)). Article 2B further states:

It is the legislative intent that the policy will be car-

ried out in the best public interest by empowering

. . . the various local boards of license commission-

ers and liquor control boards . . . with sufficient

authority to administer and enforce the provisions of

this article . . . . The restrictions, regulations, provi-

sions and penalties contained in this article are for

the protection, health, welfare and safety of the peo-

ple of this State.

Md. Code, Art. 2B, § 1-101(a)(2)-(3). In relevant part, Article

2B, § 10-405(b), provides that an establishment’s liquor

license shall be revoked if any of the activities listed in sub-

section (c) of the Challenged Statute, pertaining to restrictions

20 LEGEND NIGHT CLUB v. MILLER

on attire and conduct, or subsection (d) of the Challenged

Statute, pertaining to restrictions on entertainment, occur on

the licensed premises.

Subsection (c) of the Challenged Statute provides:

With respect to attire and conduct, a person may not:

(1) Be employed or used in the sale or service of

alcoholic beverages in or upon the licensed premises

while the person is unclothed or in attire, costume or

clothing so as to expose to view any portion of the

female breast below the top of the areola or of any

portion of the pubic hair, anus, cleft of the buttocks,

vulva or genitals;

(2) Be employed or act as a hostess or act in a

similar-type capacity to mingle with the patrons

while the hostess or person acting in a similar-type

capacity is unclothed or in attire, costume or clothing

as described in paragraph (1) of this subsection;

(3) Encourage or permit any person on the licensed

premises to touch, caress or fondle the breasts, but-

tocks, anus or genitals of any other person; or

(4) Permit any employee or person to wear or use

any device or covering exposed to view, which sim-

ulates the breast, genitals, anus, pubic hair or any

portion of it.

Md. Code, Art. 2B, § 10-405(c).

Subsection (d) of the Challenged Statute provides:

With respect to entertainment provided, a person

may not:

LEGEND NIGHT CLUB v. MILLER 21

(1) Permit any person to perform acts of or acts

which simulate:

(i) The act of sexual intercourse, masturbation, sod-

omy, bestiality, oral copulation, flagellation or any

sexual acts which are prohibited by law;

(ii) The touching, caressing or fondling of the breast,

buttocks, anus or genitals; or

(iii) The display of the pubic hair, anus, vulva or

genitals;

(2) Permit any entertainer whose breasts or buttocks

are exposed (subject to the restrictions of paragraph

(1) of this subsection) to perform closer than six feet

from the nearest patron; or

(3) Permit any person to use artificial devices or

inanimate objects to depict, perform or simulate any

activity prohibited by paragraph (1) of this subsec-

tion.

Md. Code, Art. 2B, § 10-405(d).

B

"Pursuant to the overbreadth doctrine, a party may chal-

lenge a statute on its face because it also threatens others not

before the court—those who desire to engage in legally pro-

tected expression but who may refrain from doing so rather

than risk prosecution or undertake to have the law declared

partially invalid." Giovani Carandola, Ltd. v. Fox (Carandola

II), 470 F.3d 1074, 1081 (4th Cir. 2006) (internal quotation

marks omitted). Where, as here, "conduct and not merely

speech is involved[,] the overbreadth of a statute must not

only be real, but substantial as well, judged in relation to the

statute’s plainly legitimate sweep." Id. (internal quotation

22 LEGEND NIGHT CLUB v. MILLER

marks, alteration marks, and ellipses omitted). "A law should

not be invalidated for overbreadth unless it reaches a substan-

tial number of impermissible applications," and "[a] court

should invoke a limiting construction or employ partial invali-

dation before resorting to a finding of facial overbreadth." Id.

(ellipses, internal quotation marks, and alteration marks omit-

ted). As the Supreme Court has explained:

Generally speaking, when confronting a constitu-

tional flaw in a statute, we try to limit the solution

to the problem, severing any problematic portions

while leaving the remainder intact. Because the

unconstitutionality of a part of an Act does not nec-

essarily defeat or affect the validity of its remaining

provisions, the normal rule is that partial, rather than

facial, invalidation is the required course.

Free Enter. Fund v. Public Co. Accounting Oversight Bd.,

130 S. Ct. 3138, 3161 (2010) (internal quotation marks, cita-

tions, and alteration marks omitted).

The intermediate level of scrutiny applies to content-neutral

restrictions on speech or other forms of expression protected

by the First Amendment aimed at ameliorating the harmful

secondary effects of such speech or expression. Giovani Car-

andola, Ltd. v. Bason (Carandola I), 303 F.3d 507, 514 (4th

Cir. 2002). The majority correctly concludes that at least one

purpose of the Challenged Statute is to address the secondary

effects resulting from the combination of alcohol and nude

dancing, which purpose is sufficient for us to treat the Chal-

lenged Statute as content-neutral, triggering application of the

intermediate level of scrutiny. Ante at 11. To pass muster

under the intermediate level of scrutiny, "a law must be nar-

rowly tailored to serve substantial governmental interests."

Am. Life League Inc. v. Reno, 47 F.3d 642, 648-49 (4th Cir.

1995).

Beginning with the substantial-governmental-interests

prong, even without considering any evidence, the conclusion

LEGEND NIGHT CLUB v. MILLER 23

is inescapable that Maryland has a substantial interest in regu-

lating nude and topless dancing and has a substantial interest

in regulating simulated sexual activity and fondling of sexual

organs in establishments holding liquor licenses. See Caran-

dola II, 470 F.3d at 1082 (concluding that, "even without con-

sidering any evidence," North Carolina "has a substantial

interest in regulating nude and topless dancing, because such

entertainment has a long history of spawning deleterious

effects," and "a substantial interest in regulating simulated

sexual activity and fondling of sexual organs" in establish-

ments holding liquor licenses, because North Carolina "may

rely on evidentiary foundation set forth in [City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41 (1986) and Young v.

American Mini Theatres, Inc., 427 U.S. 50 (1976)], to the

effect that harmful secondary effects are caused by the pres-

ence of even one adult entertainment establishment in a given

neighborhood," (internal quotation marks and alteration marks

omitted)).

This brings us to the narrowly tailored prong of intermedi-

ate scrutiny. In my view, the entirety of subsection (c) of the

Challenged Statute passes muster under this prong. Subsec-

tions (c)(1) and (c)(2) of the Challenged Statute, unlike the

old and new versions of North Carolina’s adult entertainment

statute at issue in Carandola I and Carandola II, respectively,

specifically tie their restrictions pertaining to persons "un-

clothed or in attire, costume or clothing so as to expose to

view any portion of the female breast below the top of the are-

ola or of any portion of the pubic hair, anus, cleft of the but-

tocks, vulva or genitals" to those selling or serving alcoholic

beverages or to those acting as a hostess mingling with the

patrons or in a similar-type capacity, and thus do not burden

First Amendment protected artistic expression such as a bal-

let, a Shakespearian play, or other mainstream productions.

Md. Code, Art. 2B, § 10-405(c)(1). Additionally, the Chal-

lenged Statute’s structural division of "Attire and conduct"

restrictions in subsection (c) from "Entertainment restric-

tions," in subsection (d) strongly supports this conclusion.

24 LEGEND NIGHT CLUB v. MILLER

Under this division, the prohibitions set forth in subsection (c)

are reasonably construed as not pertaining to entertainment at

all, but to patrons of the licensed establishment and to those

employees not engaged in the entertainment of patrons. See

Carandola II, 470 F.3d at 1084 ("On a facial challenge, we

must apply a reasonable limiting construction where one is

available.").

Similarly, subsections (c)(3) and (c)(4) of the Challenged

Statute, do not burden First Amendment protected artistic

expression, because they are reasonably read as not pertaining

to entertainment at all, but to patrons of the licensed establish-

ment and to those employees not engaged in the entertainment

of patrons.1 Moreover, at least with respect to subsection

(c)(3)’s prohibition on fondling of the breasts, buttocks, anus,

etc., the language is reasonably interpreted "to prohibit only

[actual] manipulation of specified erogenous zones," Caran-

dola II, 470 F.3d at 1084, which prohibition "has no prohibi-

tory effect on non-erotic dance and would not apply to other

mainstream entertainment, including popular and award-

winning musicals such as Cabaret, Chicago, Contact, and The

Full Monty," id. at 1083 (internal quotation marks omitted).

In my view, the constitutional problems with the Chal-

lenged Statute arise under subsection (d). I agree with the

majority opinion to the extent that it holds that the prohibi-

tions in subsection (d) of the Challenged Statute reach a sub-

stantial number of impermissible applications to First

Amendment protected expression, including, for example, the

ballet or a drama depicting the horrors of rape. Ante at 12-13.

The language of the old version of North Carolina’s adult

entertainment statute that we found in Carandola I to substan-

tially burden First Amendment protected expression is con-

tained in subsection (d) of the Challenged Statute. Carandola

I, 303 F.3d at 516. Not surprisingly, the majority’s holding in

1

The "Entertainment restrictions" are specifically addressed in subsec-

tion (d) of the Challenged Statute. Md. Code, Art. 2B, § 10-405(d).

LEGEND NIGHT CLUB v. MILLER 25

the present case that the Challenged Statute is unconstitution-

ally overbroad focuses upon this same language. While we

know based upon our decision in Carandola II, 470 F.3d at

1083-84, (1) with respect to entertainment provided on

licensed premises, the Challenged Statute’s prohibition on "si-

mulate[d]" sexual acts is readily susceptible to the construc-

tion that it only applies to performances that give the realistic

impression or illusion that sexual intercourse or masturbation,

etc., is being performed for the audience, Md. Code, Art. 2B,

§ 10-405(d)(1)(i), (2) with respect to entertainment provided

on licensed premises, the Challenged Statute’s prohibition on

"fondling of the breast, buttocks, anus or genitals," id. at § 10-

405(d)(1)(ii), is readily susceptible to the construction that it

"only bars a performer from actually manipulating specified

erogenous zones," Carandola II, 470 F.3d at 1083 (internal

quotation marks omitted), and (3) while these limiting con-

structions cure much of subsection (d)’s overbreadth prob-

lems, such constructions are inadequate to cure those

problems completely. Critically, the Carandola II court

upheld against a facial overbreadth challenge the new version

of North Carolina’s adult entertainment statute based upon the

combination of the limited constructions just mentioned and

the then newly enacted carve-out provision for "persons oper-

ating theaters, concert halls, art centers, museums, or similar

establishments that are primarily devoted to the arts or theatri-

cal performances, when the performances that are presented

are expressing matters of serious literary, artistic, scientific, or

political value," N.C. Gen. Stat. § 18B-1005.1 (2005), which

the court determined "shelter[ed] most protected activity,"

Carandola II, 470 F.3d at 1085. See also id. (holding that the

new version of North Carolina’s adult entertainment statute,

with the limited constructions of the language at issue prof-

fered by North Carolina’s Alcohol Beverage Control Com-

mission and the carve-out provision, does not reach a

substantial number of impermissible applications, and there-

fore, reversing the portions of the district court’s order hold-

ing subsections (a)(2) and (a)(3) of the statute unconstitutional

as facially overbroad). Accordingly, subsection (d) of the

Challenged Statute applies to a substantial amount of pro-

tected expression such as ballet performances, theatrical pro-

ductions, and comedy routines at comedy clubs. Thus, to the

extent the majority opinion affirms the district court’s striking

down of subsection (d) of the Challenged Statute and its cor-

26 LEGEND NIGHT CLUB v. MILLER

responding permanent injunction against the enforcement of

subsection (d), I concur in the proposed opinion and the judg-

ment.

However, I disagree with the majority’s holding that the

Challenged Statute is not readily susceptible to a limiting con-

struction, and its implicit holding that the Challenged Statute

is not susceptible to partial invalidation. First, the Challenged

Statute is readily susceptible to the limiting construction that

subsection (c) does not pertain to performers or persons other-

wise engaged in protected expression.2 Second, with the

excise of subsection (d) from the Challenged Statute, the

Challenged Statute, including subsection (c), remains "‘fully

operative as a law.’" Free Enter. Fund, 130 S. Ct. at 3161

(one set of internal quotation marks omitted). Third, it is not

evident that Maryland’s legislature would not have enacted

the attire and conduct restrictions contained in subsection (c)

of the Challenged Statute in the absence of an ability to enact

the entertainment restrictions contained in subsection (d) of

the Challenged Statute, and therefore, we must sustain the

Challenged Statute’s remaining provisions. Id. (upholding

Sarbanes-Oxley Act with unconstitutional tenure restrictions

excised, because remaining provisions were capable of func-

2

The majority broadly asserts that recognizing and applying this reason-

able limiting construction of subsection (c) usurps the role of the Mary-

land legislature and rewrites the Challenged Statute. Ante at 16. This

assertion is without merit. First, such limiting construction does not read

subsection (c) as meaning something else than what it actually states, and

therefore, rewrites nothing. Second, the "principle that statutes will be

interpreted to avoid constitutional difficulties," is "well-established,"

Frisby v. Schultz, 487 U.S. 474, 483 (1988), and "[t]hus, where an uncon-

stitutionally broad statute is ‘readily subject to a narrowing construction’

that would eliminate its constitutional deficiencies, we accept that con-

struction," Berger v. City of Seattle, 569 F.3d 1029, 1046 (9th Cir. 2009)

(quoting Frisby, 487 U.S. at 482). See also Virginia v. American Booksell-

ers Ass’n, Inc., 484 U.S. 383, 397 (1988) ("It has long been a tenet of First

Amendment law that in determining a facial challenge to a statute, if it be

readily susceptible to a narrowing construction that would make it consti-

tutional, it will be upheld." (internal quotation marks omitted)).

LEGEND NIGHT CLUB v. MILLER 27

tioning independently and no evidence that Congress would

not have enacted remaining provisions independently of

unconstitutional tenure restrictions). The result limits the solu-

tion to the problem in accordance with Supreme Court prece-

dent. Id. ("Generally speaking, when confronting a

constitutional flaw in a statute, we try to limit the solution to

the problem, severing any problematic portions while leaving

the remainder intact." (internal quotation marks omitted)).

Thus, to the extent the majority opinion affirms the district

court’s striking down of subsection (c) of the Challenged Stat-

ute and its corresponding permanent injunction against the

enforcement of subsection (c), I dissent from the majority

opinion and the judgment. I would reverse in such regard.

II

Plaintiffs also sought a declaration and corresponding

injunctive relief that the Grandfather Clause, 2005 Md. Laws

ch. 262, § 2, violates the Equal Protection Clause of the Four-

teenth Amendment.3 The Fourteenth Amendment’s Equal

Protection Clause states, in relevant part, that "[n]o State shall

. . . deny to any person within its jurisdiction the equal protec-

tion of the laws." U.S. Const. amend. XIV, § 1. The Equal

Protection Clause "limits all state action, prohibiting any state

from denying a person equal protection through the enact-

ment, administration, or enforcement of its laws and regula-

tions." Front Royal & Warren County Indus. Park Corp. v.

Town of Front Royal, 135 F.3d 275, 289 (4th Cir. 1998)

(internal quotation marks & emphasis omitted).

The Grandfather Clause, effective October 1, 2005,

exempts the following from being subject to Article 2B, § 10-

405 in Prince George’s County:

3

Prince George’s County first became subject to Article 2B, § 10-405

on October 1, 2005, pursuant to 2005 Md. Laws ch. 262 § 1.

28 LEGEND NIGHT CLUB v. MILLER

a current alcoholic beverages license holder that cur-

rently conducts an activity that is made unlawful by

this Act only if the license holder:

(a) received approval from [Prince George’s County

Board of License Commissioners] to conduct the

activity on or before August 15, 1981; and

(b) has owned the licensed premises continuously

since September 1, 1981.

2005 Md. Laws ch. 262 § 2. Thus, the Grandfather Clause

exempts from Article 2B, § 10-405 any then current alcoholic

beverages license holder that had received approval to con-

duct adult entertainment more than exactly twenty-four years,

one month, and sixteen days prior to the effective date of Arti-

cle 2B, § 10-405 on October 1, 2005, and had owned the

licensed premises continuously since September 1, 1981.

2005 Md. Laws ch. 262, § 2.

Below, the district court held that the Grandfather Clause

was unrelated to any legitimate community interest and found

that it was enacted solely to favor a politically connected busi-

ness establishment, and therefore, violated the Equal Protec-

tion Clause of the Fourteenth Amendment. The Legend Night

Club v. Prince George’s County Bd. Of License Comm’rs,

2009 WL 926989 at *6 (D. Md. April 1, 2009). The district

court also rejected Defendants’ contention that it should sever

the Grandfather Clause so as to cure the Equal Protection

defect. Id.

On appeal, Defendants argue that the district court erred in

holding that the Grandfather Clause violates the Equal Protec-

tion Clause, because the district court improperly relied upon

the testimony of former Senator Broadwater in finding that

the Maryland legislature enacted the Grandfather Clause to

specifically favor the Ebony Club.4 Defendants contend that

4

There is debate among the parties as to whether the Grandfather Clause

actually exempts the Ebony Club, because Senator Broadwater apparently

LEGEND NIGHT CLUB v. MILLER 29

the district court should have determined that the Grandfather

Clause serves typical, legitimate reliance interests. Alterna-

tively, Defendants contend that the district court should have

severed the Grandfather Clause instead of striking down Arti-

cle 2B, § 10-405(c)-(d), as amended by 2005 Md. Laws ch.

262, in toto as violative of the Equal Protection Clause.

I agree with the district court that no reasonably conceiv-

able state of facts exists that could provide a rational basis for

the classification in the Grandfather Clause. Legend Night

Club, 2009 WL 926989 at *5. ("Where an Equal Protection

challenge is brought against a statute that does not draw a dis-

tinction based on a suspect class, the statute is presumed con-

stitutional, so long as the challenged classification rationally

relates to a legitimate state interest."). When the Maryland

Legislature enacted 2005 Md. Laws ch. 262, the Legend

Night Club had been in business four days short of twenty-

three years. Given the relatively little difference in time

between adult night clubs in business twenty four years versus

adult night clubs in business twenty-three years, Defendants’

proffered rationale of typical, legitimate reliance interests, is

farfetched. Accordingly, I would hold that the district court

was correct in holding that the Grandfather Clause violates

the Equal Protection Clause.

In my opinion, however, the district court erred in not sev-

ering the Grandfather Clause. State law governs questions

pertaining to the severability of a state statute’s provisions,

Sons of Confederate Veterans, Inc., ex rel. Griffin v. Comm’r

of Va. Dep’t of Motor Vehicles, 288 F.3d 610, 627 (4th Cir.

2002), and Maryland law provides that Maryland statutes are

severable unless a statute specifically provides otherwise or a

statute is "incomplete and incapable of being executed in

accordance with legislative intent," Md. Code, Art. 1, § 23.

transferred ownership of the club to his wife and son at some point. This

matter is irrelevant to the current analysis on appeal.

30 LEGEND NIGHT CLUB v. MILLER

Here, Article 2B, § 10-405(c)-(d) is readily executable absent

the Grandfather Clause. Accordingly, although the district

court correctly held that the Grandfather Clause violated the

Equal Protection Clause, it erred in relying on such violation

to strike down the entirety of Article 2B, § 10-405(c)-(d), as

amended by 2005 Md. Laws ch. 262, instead of severing the

Grandfather Clause.

III

For the reasons stated, I would reverse the district court’s

declaration that subsection (c) of the Challenged Statute is

violative of the First Amendment and its corresponding per-

manent injunction. I would affirm the district court’s declara-

tion that subsection (d) of the Challenged Statute is violative

of the First Amendment and its corresponding permanent

injunction based upon such violation. Finally, I would affirm

the district court’s declaration that the Grandfather Clause

violates the Equal Protection Clause of the Fourteenth

Amendment, sever the Grandfather Clause from the Chal-

lenged Statute, and reverse the corresponding permanent

injunction to the extent that it enjoins enforcement of the

Challenged Statute based upon the district court’s holding that

the Grandfather Clause violates the Equal Protection Clause.