Pack Shack, Inc. v. Howard County

HARRELL, J.,

concurring in part and dissenting in part.

I agree that certain parts of § 128.H of the Zoning Regulations of Howard County exceed the bounds permitted by the Maryland and United States Constitutions, though not all of the parts found so by the majority opinion, and certainly not the entirety of § 128.h. Thus, I write separately to explain which specific portions of the zoning ordinance I believe to be unconstitutional. This is necessary because the Zoning Regulations of Howard County contain a severability provision, 11 so it is inappropriate in this case to declare § 128.H unconstitutional in sum.

*86 The majority presents three separate rationales for its general unconstitutionality result: (1) § 128.H invests too much discretion in Howard County officials; (2) the disclosure requirements of § 128.H “impose an onerous burden on the applicant,” (Majority slip op. at 21); and (3) the “time, place and manner” location requirements establishing the minimum distances between adult entertainment businesses and between adult entertainment businesses and other buildings or uses are excessive. I respectfully disagree with the majority opinion on the discretion issue. Moreover, I conclude that Pack Shack failed to challenge adequately the disclosure regulations. Finally, I agree with the majority’s analysis of the location requirements.

I. Discretion of Local Officials

I do not see the “considerable room for exercise of judgment by the official” (Majority slip op. at 19) found by the majority as a result of the County’s use of the words “distance” and “financial interest.” According to the majority, all of § 128.H is unconstitutional because it provides no standard as to how its respective spatial distance requirements are to be measured. For example, the majority theorizes “[distance could [be] measured ... door-to-door, or boundary line to boundary line.” Id. Section 128.H.2.f, which reads “[mjeasurements shall be made in a straight line between the building containing the adult entertainment business and the building, zoning district, land use area, or lot,” makes the standard more than clear enough. 12 The only arguable ambiguity seems to be as to where on the building, zoning district, land use area or lot to measure from or to, but in no case can the *87 distance be less than the distance between the nearest point on the building containing the adult entertainment business and the nearest point on the adjacent building, zoning district, land use area or lot. This limited discretion is not “unbridled” — it is strictly confined to the physical distance between the relevant points. 13

Neither the “ambiguity” of selecting what part of the building to use for measurement, nor the ambiguity created by the undefined term “financial interest” in § 128.H.6.a (requiring that the name of every person with a financial interest in the property or business be disclosed on the licensing application), is the kind that creates “unbridled discretion” as the U.S. Supreme Court uses that term. See Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757 , 108 S.Ct. 2138, 2144 , 100 L.Ed.2d 771, 782 (1988) (“a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship”). When the Supreme Court has struck down a statute for giving too much discretion to local officials, that statute either has provided no standards at all, see Lakewood, or has called for a totally subjective judgment, see Shuttlesworth v. Birmingham, 394 U.S. 147, 149-150 , 89 S.Ct. 935, 938 , 22 L.Ed.2d 162, 166 (1969) (“The commission shall grant a written permit for such parade, procession or other public demonstration, ... unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.”). The hallmark of “unbridled discretion” is a subjective decision that is left to a government *88 official and is not amenable to judicial review. That hallmark is not present in the ordinance in the present case.

Even were I to find that the two provisions selected by the majority grant an impermissible level of discretion to local officials, I would “save” the statute by adopting a narrowing construction. This Court could choose, where reasonable and possible to do so, a “constitutional” interpretation. For example, I would construe the proper measure of distance to be from the nearest point on the building containing the adult entertainment business to the nearest point on the relevant other building, zoning district, land use area or lot, and “financial interests” to mean ownership interests. Such constructions would eliminate the discretion that so concerns the majority. See Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 347-48 , 106 S.Ct. 2968, 2980 , 92 L.Ed.2d 266, 285 (1986) (“with respect to the bare statutory language ... we are bound by the Superior Court’s narrowing construction of the statute. Viewed in light of that construction ... we do not find the statute unconstitutionally vague”). Imposing a “constitutional” construction through judicial gloss is preferable, in my view, to the drastic measure of declaring unconstitutional an entire legislative enactment.

II. Disclosure

Were it properly before us and not salvageable through judicial construction of the term “financial interests,” I would tend to agree with the majority that, with respect to the disclosure requirements of the licensing scheme, § 128.H.6.a, “there is little or no relationship between the alleged government interest of combating the adverse secondary effects of adult businesses and the extensive disclosure of all parties with a ‘financial interest,’ ” (Majority op. 377 Md. at 79, 832 A.2d at 184). I do not join the majority, however, for the additional reason that Petitioner did not raise this issue in the trial court or on appeal. 14 Consequently, neither the trial court nor the Court of Special Appeals addressed this issue.

*89 III. Location

I agree with the majority that certain of the spatial location or separation requirements of § 128.H.2 violate the First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights. The trial court found that there were between four and twelve potential sites in Howard County that fit the requirements of § 128.H.2. Pack Shack argues that if each site were an acre in size, this would amount to between .00249 and .00747 percent of the County’s total acreage. A set of locations comprising less than one hundredth of one percent of the total area of the County and less than one tenth of one percent of the area open to regular bookstores and other commercial enterprises, (see Majority *90 op. 377 Md. at 83-84, 832 A.2d at 187-88), is neither “a reasonable opportunity to open and operate” an adult entertainment business within Howard County, Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54 , 106 S.Ct. 925, 932 , 89 L.Ed.2d 29, 42 (1986), nor does it allow “alternative avenues of communication” to persist. 475 U.S. at 47 , 106 S.Ct. at 928, 89 L.Ed.2d at 37 .

As noted supra at n. 1, “there is a strong presumption that a legislative body generally intends its enactments to be severed if possible.” Gudis, 319 Md. at 574, 573 A.2d at 1333. While § 128.H.2 may be severed from the rest of § 128.H, it is impossible to sever particular clauses of § 128.H.2 from each other. Legislative intent is our touchstone on severability questions, Id. at 573-574, 573 A.2d at 1333, but the § 128.H.2 spatial location regulations function as a coordinated whole. Therefore, I would find that § 128.H.2 is invalid in its entirety, and leave the rest of § 128.H intact.

The Court, however, ought to provide some additional guidance for the County should it choose to enact new spatial location regulations. The North Ave. Novelties v. City of Chicago, 88 F.3d 441 (7th Cir.1996) court addressed, a Chicago statute similar to that of Howard County, in that it set a minimum distance between adult uses and also set a minimum distance between any adult use and any school, place of worship, or district zoned for residential use. Id. at 443 (“adult uses are only permitted if they are located at least 1,000 feet from (a) any existing adult use; (b) any existing school or place of worship; and (c) any district zoned for residential use.”) (quoting Chicago, 111. Municipal Code §§ 17-9.3-2(B)(6) & 17-9.3-3(A)(4) (1992)). In this way, the Chicago statute combined the provisions of two zoning schemes that the Supreme Court previously upheld:

One which dispersed adult uses by requiring that they be 1,000 feet from each other, see Young v. American Mini Theatres, 427 U.S. 50 , 96 S.Ct. 2440 , 49 L.Ed.2d 310 [(1976)], and one that concentrated them by requiring that they be 1,000 feet from residential areas, schools, and places of worship, see [Renton v. Playtime Theatres, 475 U.S. 41 , 106 S.Ct. 925 , 89 L.Ed.2d 29 ]. Novelties contends, however, *91 that while both of these schemes may have been constitutional in their respective cities, the Chicago Zoning Ordinance violates the First Amendment by merging the strategies and applying them to Chicago. We agree that the holdings of Young and Renton cannot merely be “combined” to conclude that the Chicago zoning scheme is necessarily constitutional; instead the scheme, as it is applied to Chicago’s geographic area, must be considered----[I]n analyzing

Chicago’s scheme, it is necessary to focus both on the ability of producers as a group to provide sexually explicit expression, as well as on the ability of the public as a whole to receive it.

Id. at 444. 15 Like the Chicago ordinance, Howard County’s future, if any, zoning regulations limiting access to adult entertainment businesses will require particularized analysis *92 based on the total effect of the regulations, the county’s geography, and its market for this type of commerce. Howard County may choose to consolidate its adult entertainment businesses or to separate them. It may even do both. No matter what policy the County Council adopts, it must provide a reasonable opportunity for adult entertainment businesses to operate and it cannot unduly limit alternative avenues of communication.

In the present case, I would affirm in part and reverse in part the judgments below.

. "Whether a provision ... is severable from the remaining portions of the statute of which it is a part is a question of legislative intent." Sugarloaf Citizens Assoc., Inc. v. Gudis, 319 Md. 558, 573-74 , 573 A.2d 1325, 1333 (1990). The County Council of Howard County has indicated its intent that these regulations be severable under the circumstances. See Zoning Regulations of Howard County, § 100.D ("Should any section or provision of these regulations ... be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the regulations ..., or any part thereof, other than the part declared to be unconstitutional or invalid.”). Even without a severability clause, we ordinarily would consider the provisions to be severable, where reasonably possible to treat them so, because "there is a strong presumption that a legislative body generally intends its enactments to be severed if possible.” 319 Md. at 574 , 573 A.2d at 1333 .

. Though the majority suggests that the distance could be measured from boundary line to boundary line, this can never be a proper measurement. According to § 128.H.2.f, the building containing the adult entertainment business must always be the starting point. In the case of another building (for example when measuring the distance to another adult entertainment business as described in § 128.H.2.a), the proper measurement is building to building. In the case of a zoning district, land use area, or lot (for example when measuring the distance to a residential zoning district as described in § 128.H.2.b), the proper *87 measurement is from the building housing the adult entertainment business to the boundary line of the zoning district, land use area, or lot. Section 128.H.2.e makes a special exception for certain buildings. Under that section, the proper measurement is from a building containing the adult entertainment business to the "boundary of a parcel occupied by an academic school (nursery through high school level), child day care center, religious facility as the principal use, public library, public park, or public recreational facility!.]”

. As made plain by the majority opinion elsewhere, however, with regard to the alternative argument as to the constitutionality of the particular spatial standards themselves, § 128.H.2 has other problems.

. The majority opinion gives extensive attention in its analysis to the disclosure requirements of the Howard County ordinance. (Majority *89 op. 377 Md. at 74-79, 832 A.2d at 181-84). Yet, Pack Shack, in its brief and reply brief to this Court, barely mentions the disclosure requirements as a basis for its arguments. The only mention in either brief appears in Pack Shack’s initial brief (at 28) where, in passing, it states:

Using a cumulative approach, the ordinance restrictions are greater than essential to the furtherance of the government interest. It has imposed buffers from protected uses, restrictions to particular commercial zones, a 2,500-foot separator between adult businesses, operational restrictions and a licensing scheme with disclosure requirements not imposed on other book and video stores in the County. (emphasis added)

Pack Shack thereafter advances authorities purporting to support its argument as to the spatial, locational, and operational restrictions, but not once endeavors to particularize or support its mere passing mention of the disclosure requirements. Failure to discuss or specifically argue an issue in briefs or oral argument, or to set forth the authority for a proposition, properly is viewed as a waiver of that issue. See Foster v. State, 305 Md. 306, 315 , 503 A.2d 1326, 1331 (1986) (citing Health Serv. Cost Rev. Comm. v. Lutheran Hosp., 298 Md. 651, 664 , 472 A.2d 55, 61 (1984); Logan v. Town of Somerset, 271 Md. 42, 67 , 314 A.2d 436 449-450 (1974); Ricker v. Abrams, 263 Md. 509, 516 , 283 A.2d 583, 587 (1971); Wooddy v. Wooddy, 256 Md. 440, 450-451 , 261 A.2d 486, 491 (1970); Harmon v. State Roads Comm., 242 Md. 24, 30-32 , 217 A.2d 513, 516-518 (1966)).

The clearest statement of this issue is located in the Amicus brief filed by Free Speech Coalition of the District of Columbia, Maryland and Virginia. Ordinarily, this Court will not decide an issue "unless it plainly appears by the record to have been raised in or decided by the trial court.” Maryland Rule 8-131(a). The rationale behind the normal effect of this rule particularly should be vindicated here where an issue is presented only by an amicus.

. The North Ave. Novelties court found that even with the 1000 foot exclusion zones that both concentrated and dispersed adult uses, there was a reasonable opportunity for adult-oriented businesses to operate in Chicago and reasonable public access to them. The 1000 foot zones in that case are considerably larger than the 500 foot zones in §§ 128.-H.2.b-e in the present case. One thousand foot zones have been upheld by many courts. See Los Angeles v. Alameda Books, Inc., 535 U.S. 425 , 122 S.Ct. 1728 , 152 L.Ed.2d 670 (2002) (upholding a statute that provided for set-offs of 500 feet from residential areas, schools and religious facilities as well as 1000 feet from other adult businesses), Renton v. Playtime Theatres, 475 U.S. 41 , 106 S.Ct. 925 , 89 L.Ed.2d 29 , (adult businesses must be 1000 feet from schools, religious establishments, and residential areas), Young v. American Mini Theatres, 427 U.S. 50 , 96 S.Ct. 2440 , 49 L.Ed.2d 310 (1976) (adult businesses must be 1000 feet from one another). On the other hand, the Supreme Court never has upheld a regulation providing for a 2500 foot exclusion zone like that in § 128.H.2.a, nor has such a large exclusion zone been upheld in any Maryland case. A provision like § 128.H.2.a creates a circle around any existing adult entertainment business within which no new adult entertainment business may be established. A circle with a radius of 2500 feet is twenty-five times larger in area than one with a radius of 500 feet and more than six times larger than one with a radius of 1000 feet. Such a large expansion from previously sanctioned standards is not unconstitutional per se, but given that a 1000 foot standard was found sufficient in such diverse places as Los Angeles, see Alameda, Chicago, see North Ave. Novelties, and the city of Renton, Washington, see Playtime Theatres, Howard County would need to present special justification why a 2500 foot exclusion zone, rather than a smaller one, is necessary if it chooses to re-enact that provision.