Tuesday, April 3, 2007

104 West Washington Street II Corporation v. Hagerstown (Ct. of Special Appeals)

Filed April 3, 2007. Opinion by Judge Peter B. Krauser.

On appeal from the grant of Hagerstown's motion for summary judgment in a case involving a challenge to Hagerstown's Adult Businesses Ordinance, the Court AFFIRMED the decision below.

Appellant ("104") owns and operates Hagerstown's only "adult" establishment, selling books, magazines, videos, lingerie and novelties and providing booths for customers to view adult videos. Reports of drug and sexual activities prompted the police and health departments to take action against the facility, and in 2002 the Mayor and City Council of Hagerstown passed an Adult Business Ordinance (the "ABO"), to regulate the time, place and manner in which Hagerstown's adult businesses could operate.

In 2003, 104 filed a complaint against Hagerstown and its police chief, seeking declaratory and injunctive relief. After a brief removal to the United States District Court, the case was heard by the Circuit Court for Washington County. Several amendments were made to the ABO during the pendency of the case to conform with developing case law, and the trial court eventually granted Hagerstown's motion for summary judgment.

On appeal, 104 claimed the ABO violated the First Amendment to the federal constitution, and Article 40 of the Maryland Declaration of Rights, arguing that the ABO was not "narrowly tailored to serve a significant government function", since there was no "pre-enactment evidence" in the legislative record, and thus the supplemental materials submitted in support cannot sustain the regulation.

The Court, in applying the Renton test, found neither the federal nor the state constitutions require pre-enaction evidence, and that indications of the "negative secondary effects" were before the legislators when the ABO was being enacted. Further, the Court noted that there is no constitutional requirement that the least restrictive means be employed in addressing the problem and 104's objections to the form and timing of certain affidavits submitted to the trial judge in support of Hagerstown's summary judgment motion were found to not be well grounded.

The Court also found little merit in 104's argument that, because the ABO does not contain provisions allowing for judicial review, it constitutes an unconstitutional prior restraint on free speech, since the issue was not raised below, and in any event, ordinary judicial review would be adequate in this case. Finally, the Court found that the ABO did not permit arbitrarily withholding a license, but only for the violation of the statute.

The opinion is available in PDF format.

1 comment:

Anonymous said...

The decision purports to apply the Renton test which it characterizes as allowing a city to pass a time place manner ordinance limiting exercise of First Amendment rights to distribute adult speech based on evidence it reasonably believes shows a problem to be addressed by the limits.

But the appellant is arguing Hagerstown provided no admissible evidence that it had ANY basis - reasonable or not - for passing the ordinance.

It is no answer to say Renton does not require specific evidence, or to say Hagerstown could "reasonably believe". If there was no showing that there was any basis (i.e., all the health and safety reports, witness testimony, etc was not before the City) then there is nothing to be tested against the fairly liberal "reasonably believed" standard.

Probably the City could easily establish this low threshold showing; but as far as I can tell the opinion does not seem to require ANY on the record basis to approve the TPM restriction. This is an erroneous extension of the precedents it cites.