Allno Enterprises v. Baltimore County MD, 4th Cir. (2001)
Allno Enterprises v. Baltimore County MD, 4th Cir. (2001)
SOUTHWEST ENTERPRISES,
INCORPORATED, d/b/a Southwest
Video,
Plaintiff-Appellant,
v.
BALTIMORE COUNTY, MARYLAND,
Defendant-Appellee.
No. 00-1921
No. 00-1922
No. 00-1923
COUNSEL
ARGUED: Howard J. Schulman, SCHULMAN & KAUFMAN,
L.L.C., Baltimore, Maryland, for Appellants. John Edward Beverungen, OFFICE OF LAW, Towson, Maryland, for Appellee. ON
BRIEF: Virginia W. Barnhart, County Attorney, Amanda Stakem
Conn, OFFICE OF LAW, Towson, Maryland, for Appellee.
OPINION
PER CURIAM:
Allno Enterprises, Inc., et al., ("Allno") petitions this court to
review the lower courts grant of summary judgment to Baltimore
County, Maryland ("Baltimore County" or "the County").
I. BACKGROUND
Baltimore County enacted its Adult Entertainment Business Law
("the Ordinance") in February 1998. The Ordinance applies to adult
stores, adult movie theaters, massage establishments, and tattoo or
body piercing establishments ("adult business"). "Adult stores," as the
term is defined in the ordinance, includes any business which devotes
We are asked to review the district courts grant of summary judgment to Baltimore County on each of these issues, and the courts
refusal to order formal discovery. Though we do not travel the path
taken by the district court below, we reach the same conclusions and,
therefore, affirm.1
II. STANDARD OF REVIEW
We review a district courts grant of summary judgment de novo.
See Jakubiak v. Perry, 101 F.3d 23, 26 (4th Cir. 1996). Summary
judgment should only be granted if a partys submissions to the court
"show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). "[A]t the summary judgment stage, the judges function is not
himself to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (quoted in United
States v. Leak, 123 F.3d 787, 794 (4th Cir. 1997)). In evaluating the
evidence, the court must construe "the facts and inferences in the light
most favorable to the non-moving party." Id.
III. DISCUSSION
A. Reasonable Alternative Avenues of Communication
Although neither party has raised the question of standing on
appeal, "we are required to address the issue. . . . The federal courts
are under an independent obligation to examine their own jurisdiction,
and standing is perhaps the most important of [the jurisdictional]
doctrines." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31
(1990) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)). To establish standing, a plaintiff must meet three requirements; "[f]irst, he
must demonstrate injury in fact a harm that is both concrete and
actual or imminent, not conjectural or hypothetical;" "[s]econd, he
must establish causation a fairly . . . trace[able] connection
1
"[W]e may affirm a grant of summary judgment on any ground adequately supported by the record[.]" Z.J. Gifts D-2, L.L.C. v. City of
Aurora, 136 F.3d 683, 685 (10th Cir. 1998); Brown v. Trans World Airlines, 127 F.3d 337, 342 (4th Cir. 1997) (same).
between the alleged injury in fact and the alleged conduct of the
defendant[;]" "[a]nd third, he must demonstrate redressability a
substantial likelihood that the requested relief will remedy the
alleged injury in fact." Vermont Agency of Natural Resources v.
United States, 120 S. Ct. 1858, 1861-62 (2000) (citations omitted).
Here, Allno alleges, and Baltimore County does not contest, that
they have been cited by the County for violating the 20 percent limit
on adult stock in stores not located in the MH zone. Thus, Allno has
satisfied the first prong of the standing requirement. The citation, of
course, is "caused" by the Ordinances limit on the sale of adult materials within those portions of the County which are not zoned MH;
thus causation has been established. Similarly, it is clear that if we
found the Ordinance unconstitutional, Allno would be free to peddle
its wares ad infinitum outside the MH zone without fear of citation
from the city; the redressability requirement is met. Hence, Allno has
established its standing to challenge the Ordinance.
We turn now to the gravamen of the appeal. In evaluating the
impact of an ordinance on the avenues of communication available to
an adult business, the courts have taken two approaches. Some courts
have focused on the acreage available to adult businesses as a proportion of the total acreage within the locality, while others have considered the number of sites in proportion to the number of adult
businesses in operation within a locality. See Diamond v. City of Taft,
215 F.3d 1052, 1056-57 (9th Cir. 2000), cert. denied, 121 S. Ct. 763
(2001). Because we agree with the Seventh Circuit that "[t]he constitution does not mandate that any minimum percentage of land be
made available for certain types of speech[,]" we will not address
Allnos contention that the Ordinance sets aside only .16 percent of
the total acres in the County. See North Ave. Novelties, Inc. v. City
of Chicago, 88 F.3d 441, 445 (7th Cir. 1996). Rather, we will focus
our review on whether the Ordinance allows Allno an adequate number of sites to which it can relocate if it so chooses. As Allno is
mounting an as-applied challenge to the Ordinance, we need determine only whether there are an adequate number of available sites to
satisfy the the three adult business-Appellants potential need to relocate.
Determining the number of sites which are "available" after the
enactment of the Ordinance is the core of this dispute. Local govern-
ments are not required to ensure that adult businesses obtain sites at
bargain prices; rather, these businesses must fend for themselves, like
any other business, in the real estate market. Renton, 475 U.S. at 54;
D.G. Restaurant, 953 F.2d at 147. In deciding whether a site is available, our sister Circuits have considered a number of factors. For
instance, they have refused to count the site if the land has physical
characteristics which render it unavailable for any kind of development, see Woodall v. City of El Paso, 49 F.3d 1120, 1124 (5th Cir.
1995), or if the site could not reasonably be expected ever to become
available for any commercial enterprise. See Topanga Press, Inc. v.
City of Los Angeles, 989 F.2d 1524, 1532 (9th Cir. 1993). Other considerations include "the accessibility to the general public, the surrounding infrastructure, . . . [and whether] the sites are suitable for
some generic commercial enterprise." Hickerson v. City of New York,
146 F.3d 99, 106 (2nd Cir. 1998), cert. denied, 525 U.S. 1067 (1999)
(internal quotations and citation omitted).
As the Eleventh Circuit observed, "[t]he ideal lot is often not to be
found." David Vincent, Inc. v. Broward County, Fla., 200 F.3d 1325,
1334 (11th Cir. 2000).
[T]he fact that some development is required before a site
can accommodate an adult business does not mean that the
land is, per se, unavailable for First Amendment purposes.
. . . Examples of impediments to the relocation of an adult
business that may not be of constitutional magnitude include
having to build a new facility instead of moving into an
existing building; having to clean up waste or landscape a
site; bearing the costs of generally applicable lighting, parking, or green space requirements; making due with less
space than one desired; or having to purchase a larger lot
than one needs.
Id. at 1334-35.
Turning to the case now before us, we do not hesitate to conclude
that there exists an adequate number of sites to which Allno can relocate, and, hence, adequate alternative avenues of communication. In
defending the constitutionality of the Ordinance, the County submitted a listing ("Costar listing") of available properties within the MH
zone to which Allno could relocate. Cf. Hickerson, 146 F.3d at 107
("[W]e are aware of no federal case, and plaintiffs direct our attention
to none, that requires municipalities to identify the exact locations to
which adult establishments may relocate, as opposed to identifying
the general areas that remain available and proving that such areas
contain enough potential relocation sites that are physically and
legally available to accommodate the adult establishments."). Allno
asserts that none of the properties are available because an owner of
any one of these properties would want to lease it to an industrial,
rather than commercial, user. We disagree. A property is not rendered
"unavailable" by the bald and unsupported conclusions of an adult
business. While the properties identified by the County in the Costar
listings are generally large warehouses, seven properties explicitly
permit interested parties to divide the space offered.2 Thus, while
Allno may have to purchase a larger portion of the building even after
division than what they would consider ideal, the properties are nonetheless available. See Hickerson, 146 F.3d at 108 ("industrial areas,
undeveloped land, and warehouse areas" are not unavailable under
Renton).
In addition to the seven available properties identified in the Costar
listing, Allno itself identified an available property known as parcel
number 1224, bringing the total to eight available properties. Continuing our review of Allnos assessment of properties in the MH zone,
we identify three additional available sites. The first two of these sites
("Quad Avenue sites") were excluded by Allno because they are open
lots which would have to be developed, and because, by virtue of
their proximity to the highway and the Port of Baltimore, they would
be especially attractive to large industrial users. Simply because a particular property is well suited for other commercial or industrial uses
does not render it unavailable. Indeed, the qualities which make these
sites attractive as industrial sites, to wit, the ability to build-to-suit and
2
For purposes of this appeal only, we will assume arguendo that large
warehouses which cannot be divided to create smaller properties are not
part of the general commercial real estate market. Compare Hickerson,
146 F.3d at 108 (warehouses are not "unavailable" under Renton), with
Topanga Press, Inc., 989 F.2d at 1531 ("it is not reasonable to define [a
warehouse] as part of the real estate market that any business would
choose.").
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