COURT OF APPEALS OF MARYLAND

September Term 2001

No. 55

THE PACK SHACK, INC.,

                Appellant

v.

HOWARD COUNTY, MARYLAND,

                Appellee

APPEAL FROM THE COURT OF SPECIAL APPEALS,

138 Md. App. 59 (2001)

BRIEF OF AMICUS FREE SPEECH COALITION OF THE

DISTRICT OF COLUMBIA, MARYLAND AND VIRGINIA

Jonathan L. Katz

Jon Katz, P.C., L.L.C.

8720 Georgia Avenue, Ste. 703

Silver Spring, MD 20910

(301) 495-4300

David A. Wasserman

Law Offices of David A. Wasserman, P.A.

228 Park Avenue North Ste. B

Winter Park, Fl 32789

407 539 1140

(David Wasserman is not admitted in Maryland. Pro hac vice motion has been filed herewith)

Attorneys for amicus Free Speech Coalition of the District of Columbia, Maryland and Virginia.

TABLE OF CONTENTS

TABLE OF CONTENTS........................................                                 i

TABLE OF CITATIONS........................................                                 ii

STATEMENT OF THE CASE ...............................                                 1

A. Nature of the Case ............................                                                     1

B. Course of the Proceedings ................                                                     1

C. Disposition .......................................                                                         2

QUESTION PRESENTED.......................................                                     3

STATEMENT OF MATERIAL FACTS..................                                     3

ARGUMENT ...........................................................                                     4

A. Bill 65 constitutes an unconstitutional prior restraint.                             4

B. Bill 65 unconstitutionally censors adult entertainment                             11

businesses by limiting present and future businesses to an

insufficient number of economically viable locations.

C. The appellate court below conducted a constitutionally flawed                 14 

secondary effects analysis.

D. Bill 65 provides an unconstitutionally overbroad definition of                   16

"adult entertainment business."

CONCLUSION.........................................................                                          20

CERTIFICATE OF SERVICE .............................                                             21

Cases                                                                                                        Page

11126 Baltimore Boulevard, Inc., v. Prince George's County                     8-9, 13

58 F.3d 988 (4th Cir. 1995), cert. denied,  516 U.S. 1010 (1995)

Acorn Investments, Inc. v. City of Seattle, 887 F.2d 219 (9th Cir. 1989)     7-8, 12, 14

Alameda Books, Inc. v. City of Los Angeles, 222 F.3d 719                         15

(9th Cir. 2000), cert. granted, 532 U.S. 902, 121 S.Ct. 1223 (2001)

City of Erie v. Pap's A.M., 529 U.S. 277, 120 S. Ct. 1382 (2000)             14-16

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)                 12, 14, 17-18

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)                     6

Flanagan Enterprises, Inc., of Georgia v. Fulton County, Georgia,         16

242 F.3d 976 (11th Cir. 2001)

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)                            4, 10, 11

Lady J . Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358              5, 7, 9

 (11th Cir. 1999), cert. denied, 529 U.S. 1053 (2000)

Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988)             4

Movie & Video World v. Board of County Commissioners,                     8

723 F.Supp. 695 (S.D. Fla. 1989)

Pack Shack, Inc. v. Howard County, 138 Md. App. 59 (2001)               passim

Redner v. Dean, 29 F.3d 1495 (11th Cir. 1994), cert. denied,                   10

514 U.S. 1066 (1995)

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975)                 4

Wolf v. City of Monticello, 803 F.Supp. 1568 (D. Minn. 1992)                 10

World Wide Video v. City of Tukwila, 117 Wash. 2d 382, 816 P.2d 18    15

(1991) (en banc).

Council Bill No. 65-1997                                                                     passim

U.S. Cons., First Amend.                                                                       1

Article 40, Maryland Declaration of Rights                                         1

Section 101(c), Howard County Zoning Regulations                           10

Section 103, Howard County Zoning Regulations                             passim

Section 128, Howard County Zoning Regulations                             passim

"Stock Focus: Adult Entertainment Companies", Forbes.com         12

(May 23, 2001)

STATEMENT OF THE CASE

A. NATURE OF THE CASE

This amicus brief contends that Howard County Bill No. 65-1997 (hereinafter "Bill 65") violates the First Amendment and the Article 40 of the Maryland Declaration of Rights. Bill 65 adds an "adult entertainment business" definition to § 103.A.5 of Howard County's zoning regulations, and establishes zoning requirements for adult entertainment businesses at § 128.H. of the Howard County zoning regulations.

This brief is filed by the Free Speech Coalition of the District of Columbia, Maryland and Virginia ("DC FSC"), a non-profit Maryland corporation. The outcome of this appeal will directly affect the DC FSC and its current and future members. The DC FSC's mission is to educate, lobby and support litigation to further the understanding and acceptance of the meaning of the First Amendment in general and as it regards adult materials in particular. The DC FSC's membership is primarily comprised of adult entertainment businesses and supporters of the adult entertainment industry, and includes numerous Maryland-based adult entertainment businesses, including adult video stores, adult cabarets, and an adult movie theater.

B. COURSE OF THE PROCEEDINGS

Appellant Pack Shack, Inc., filed a Complaint in Howard County Circuit Court seeking relief from Bill 65. Pack Shack stipulated for purposes of this litigation that it is an adult entertainment business as defined in Bill 65. The Howard County Circuit Court ruled against Pack Shack, and found Bill 65 to be constitutional. Appellant Pack Shack, Inc., then filed an appeal with the Maryland Court of Special Appeals.

C. DISPOSITION

On appeal, the Court of Special Appeals affirmed the Howard County Circuit Court's disposition. See The Pack Shack, Inc. v. Howard County, 138 Md. App. 59 (2001).

QUESTIONS PRESENTED

1. Whether Bill 65 constitutes an unconstitutional prior restraint.

2. Whether Bill 65 unconstitutionally censors adult entertainment businesses by limiting such businesses to an insufficient number of economically viable locations.

3. Whether the appellate court below conducted a constitutionally sufficient secondary effects analysis.

4. Whether Bill 65 provides an unconstitutionally overbroad definition of "adult entertainment business."

Except where otherwise noted in this amicus brief, and strictly for purposes of this appeal, amicus DC FSC adopts the Factual Background from the lower court's opinion in Pack Shack, Inc. v. Howard County, 138 Md. App. 59, 65-68 (2001), and also adopts the Statement of Facts from Appellant Pack Shack's brief to the Court of Special Appeals in these proceedings. Amicus DC FSC also adopts as fact the findings and conclusions of Appellant Pack Shack's expert Shep Tullier, as set forth in Pack Shack v. Howard County, 139 Md. App. at 77. Expert Shep Tullier "concluded that there were four sites economically viable under [Bill 65] and also conceded that there were twelve sites potentially available." Pack Shack, 139 Md. App. at 77. The trial court below agreed that "'as a practical and economic matter, there are less than 23 potential sites.'" Id. at 81.

ARGUMENT

A.. Bill 65 constitutes an unconstitutional prior restraint.

Bill 65 constitutes an unconstitutional prior restraint, even though the lower court found to the contrary (Pack Shack, 138 Md. App. at 85). Unlike the usual presumption of validity afforded most legislative enactments, "'any system of prior restraint ... comes to this Court bearing a heavy presumption against its validity.'" See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990) (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975)). The Supreme Court's cases addressing prior restraints "have identified two evils that will not be tolerated in such schemes. First, a scheme that places 'unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.'" See FW/PBS, 493 U.S. at 226 (quoting Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757 (1988). "Second, a prior restraint that fails to place limits on the time within which the decisionmaker must issue the license is impermissible." FW/PBS, 493 U.S. at 226.

In other words, Bill 65 and many

licensing schemes commonly contain two defects: discretion and the opportunity for delay. An ordinance that gives public officials the power to decide whether to permit expressive activity must contain precise and objective criteria on which they must make their decisions; an ordinance that gives too much discretion to public officials is invalid... Licensing ordinances must also require prompt decisions. An ordinance that permits public officials to effectively deny an application by sitting on it indefinitely is also invalid.

Lady J . Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1361 (11th Cir. 1999)  cert. denied, 529 U.S. 1053 (2000) (citations omitted).

1. Bill 65 places unbridled discretion in the hands of the Director of Planning and Zoning

Contrary to the lower court's decision in this case, the Howard County director of the Department of Planning and Zoning ("Director") is vested with discretion to grant or deny an adult entertainment business zoning permit. Pack Shack, 138 Md. App. at 86, Bill 65 only requires the Director to approve the permit "if the use complies with paragraphs H.2 through H.4." See § 128.H.6.b of the Howard County Zoning Regulations. As shown herein, § 128.H.4 places an unconstitutional ban on the outside visibility of merchandise and material that merely describes or relates to sexual activity or nudity. Moreover, as part of the permit application, the ordinance unconstitutionally requires submission of the name and address of each owner of the business and each owner of the property, as well as the names and addresses of all natural persons who have a financial interest in any entity that owns the business or the property, no matter what percentage of ownership.

a. Bill 65 creates an unconstitutional ban on the outside visibility of merchandise and material that even describes or relates to sexual activity or nudity.

Assuming arguendo that Bill 65 were constitutional as to zoning and distance restrictions on adult entertainment businesses, Bill 65 is clearly unconstitutional in limiting the outside visibility of merchandise and material that merely describe or relate to any sexual activity or nudity. Importantly, even if it were constitutionally permissible, the lower appellate court does not point to any secondary effects studies that Howard County relied upon to limit such visibility.

Bill 65 gives the Director discretion to determine whether the applicant complies with the following provision in § 128.H.4: "No merchandise, material or performance depicting, describing or relating to sexual activity or nudity, as defined in Section 103.A.5.1 shall be visible from outside the adult entertainment business." This prohibition flies in the face of the Supreme Court's holding in Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 (1975). The Court in Erznoznik held that "the limited privacy interest of persons on the public streets cannot justify [the] censorship of otherwise protected speech on the basis of its content." Erznoznik, 422 U.S. at 212.

Section 128.H.4 most egregiously runs afoul of Erznoznik for even banning the outside visibility of material that does not show nudity or sexual conduct. Section 128.H.4 is so vastly overbroad as to give the Director authority to refuse a license to a business that has an outside sign promoting a performance of Hair or the recent acquisition of Debbie Does Dallas on DVD, or even the Playboy bunny logo. Consequently, § 128.H.4 is substantially overbroad and violates the ruling in Erznoznik.

b. Bill 65 unconstitutionally requires an overbroad disclosure of the identity of persons with a financial interest in the business and the property.

Bill 65 unconstitutionally permits the Director to require an overbroad disclosure of the identity of any and all persons with a financial interest in an adult entertainment business and the property where the business will operate. Section 128.H.6.a. requires, in relevant part:

The permit application shall also include the name and address of each owner of the business and each owner of the property on which the business is located. If the owner of the business is not a natural person, the application shall list the names and addresses of all natural persons who have a financial interest in the business and all natural persons who are authorized to act for the owner of the business. In addition, if the owner of the property on which the business is located is not a natural person, the application shall list the names and addresses of all natural persons who have a financial interest in the property and all natural persons who are authorized to act for the owner of the property.

Section 128.H.6.a is unconstitutionally overbroad and potentially chills protected expression. In other words, "a shareholder disclosure statute that potentially chills protected expression cannot stand if the information sought is not reasonably related to the furtherance of a legitimate and substantial government interest in regulating the protected activity." Acorn Investments, Inc. v. City of Seattle, 887 F.2d 219, 226 (9th Cir. 1989); see also Lady J . Lingerie, 176 F.3d at 1366 ("there must be a 'relevant correlation' or a 'substantial relation' between requiring disclosure of principal stockholders' names and a substantial government interest").

The Ninth Circuit in Acorn Investments determined that such broad disclosure requirements do not serve a sufficient legitimate purpose. For instance, minor shareholders should not have to be disclosed by the permit application, because a business's officers and directors -- not its owners -- are legally responsible for the business's management. Acorn Investments, 887 F.2d at 226. Howard County has not demonstrated any need to contact the business's shareholders about any noncompliance by the business. Id; see also Movie & Video World v. Board of County Commissioners, 723 F.Supp. 695 (S.D. Fla. 1989).

2. Bill 65 fails to provide adequate procedural safeguards for new adult businesses.

Bill 65 lacks adequate procedural safeguards by failing to ensure prompt resolution of applications for new adult entertainment businesses. See § 128.H.6.c. Clearly, "without procedural safeguards to ensure a prompt resolution, an applicant [for an adult entertainment permit] may conclude that seeking a determination is too burdensome a task to pursue, impermissibly chilling the exercise of protected speech." See 11126 Baltimore Boulevard, Inc., v. Prince George's County, 58 F.3d 988, 994 (4th Cir. 1995), cert. denied, 516 U.S. 1010 (1995) (citations omitted).

Specifically, Bill 65 permits existing adult entertainment businesses to continue operation after applying for a permit but before the permit is approved, and to continue operating pending the outcome of an appeal of the Director's denial. § 128.H.6.c. However, Bill 65 does not provide sufficient safeguards for prompt resolution of a permit application from a new business seeking a permit before commencing business operations. Some businesses, particularly publicly-held corporations, might require a permit prior to operating, because investors and creditors are more likely to provide operating capital to an adult business that holds an approved permit than to provide operating capital to an adult business that has no permit but might receive one in the future. Since new businesses cannot avail themselves of an automatic stay where an appeal is taken, they would only be allowed to operate at their own risk. See Lady J . Lingerie, 176 F.3d at 1363 ("[a] conditional exception is no exception at all. A business can scarcely afford to operate in limbo, not knowing whether the City will shut it down the next day or not").

3. Bill 65 fails to sufficiently guarantee that an adult entertainment business will be permitted to operate pending permit approval and pending appeal.

Bill 65 provides that "[t]he applicant may ... commence operation of the adult entertainment business after applying for the zoning permit but before the permit is approved." See § 128.H.6.c (emphasis added). Bill 65 further provides that "[i]f the applicant appeals the Director's denial of the permit, the business may continue to operate pending the outcome of the appeal." See id. (emphasis added). However, Bill 65 does not provide sufficient guarantees of continued business operation even for existing businesses pending permit approval and pending appeal, because § 128.H.6.c uses the permissive word may rather than the mandatory word shall. The definitions section of Howard County's Zoning Regulations confirms the critical difference between may and shall thusly: "The words 'shall' or 'may not' are always mandatory and not discretionary. The word 'may' is permissive." Section 101(c), Howard County Zoning Regulations.

Bill 65's use of the word may rather than shall is a critical distinction that amounts to a failure in Bill 65 to impose reasonable time limits on the Director to approve a permit application, and a failure to impose reasonable time limits for the commencement and completion of judicial review of a permit application denial. See Redner v. Dean, 29 F.3d 1495, 1500-01 (11th Cir. 1994), cert denied, 514 U.S. 1066 (1995) (striking an ordinance on the same grounds for using the word may rather than shall). In fact, "'[t]he issue ... is whether the ordinance on its face, meets the requirements of FW/PBS, [493 U.S. 215, 225 (1990)]'". Redner, 29 F.3d at 1501 (quoting Wolf v. City of Monticello, 803 F.Supp. 1568, 1575 (D. Minn. 1992). "We cannot depend on the individuals responsible for enforcing the Ordinance to do so in a manner that cures it of constitutional infirmities." Redner, 29 F.3d at 1501. Similarly, Howard County cannot rely on the Director to cure the constitutional infirmity of the use of the word may rather than shall; we must rely on the language of Bill 65.

4. Bill 65 fails to place sufficient time limits on the Director for issuing permits.

Bill 65's and all other prior restraints must "place limits on the time within which the decisionmaker must issue the license." See FW/PBS, 493 U.S. at 226. However, Bill 65 does not meet this requirement, because Bill 65 is silent as to when the Director must issue a permit and when the Director must inform the applicant of the Director's decision on the permit application. At best, Bill 65 only directs the Director to act on the permit application "within 30 days of receipt of the application," without directing what actions must take place. § 128.H.6.b. Section 128.H.6.b. is constitutionally deficient, because its thirty-day deadline for acting on a permit does not automatically mean that the Director also has a thirty-day deadline to notify the applicant of the Director's decision and to issue the permit within thirty days if the permit application is in fact approved. If the Director fails to inform a permit applicant of a denial, that leaves the applicant in legal limbo by denying the applicant the opportunity to seek timely judicial review.

B. Bill 65 unconstitutionally censors adult entertainment businesses by limiting present and future businesses to an insufficient number of economically viable locations.

The lower appellate court's decision is fatally flawed by limiting present and future adult entertainment businesses to an insufficient number of economically viable locations. It is bad enough that the lower appellate court found that a sufficient number of locations are available to Howard County's current adult entertainment businesses, which number at least two. It is far worse for the lower appellate court to approve that small number of locations when considering that sufficient room will be necessary for future adult entertainment businesses in Howard County.

At best, "'there are less than 23 potential sites'" available for adult entertainment businesses under Bill 65. Pack Shack, 139 Md. App. at 81. However, more realistically, "there [are] four sites economically viable" under Bill 65, and twelve sites potentially available, regardless of economic viability. Id. (referring to findings of Appellant's expert Shep Tullier). In other words, Bill 65 is unconstitutional for offering too few operating locations to Howard County's current and future adult entertainment businesses. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 53 (1986) (requiring an ample number of accessible locations for the operation of new adult entertainment businesses) .

As discussed above, the current number of available locations is insufficient for even two existing adult entertainment businesses, let alone for future adult entertainment businesses. By imposing these limited number of sites, Bill 65 can be expected to discourage and stymie future adult entertainment businesses from amassing the necessary interest, capital and resources to locate in Howard County; banks and investors cannot be expected to line up to finance future proposed Howard County adult entertainment businesses if the County does not even have enough economically viable sites for such businesses. See, e.g., Acorn Investments, Inc. 887 F.2d at 226 (government actions are not allowed to potentially chill protected expression unless the action is sufficiently justified ); see also 11126 Baltimore Boulevard, Inc. v. Prince George's County, 58 F.3d at 994 (4th Cir. 1995) (addressing the chill placed on the exercise of protected speech by an overly burdensome regulatory scheme).

In examining the issue of the number of available sites for adult entertainment businesses, the lower court used the faulty approach of looking solely at businesses' present and past efforts to obtain adult entertainment sites in Howard County. See Pack Shack, 139 Md. App. at 82. This approach is faulty because Bill 65 has not been around long enough to make sufficient conclusions about the demand for new adult entertainment business permits. Further, there is no indication that the lower appellate and trial courts considered the effect on potential locations when and if an existing business relocates. There is huge demand for adult entertainment in the United States that is bound to increase the number of adult entertainment businesses in Howard County, if only such businesses' constitutional rights to open and operate are protected. The demand in the United States, alone, is so high that the adult entertainment industry is recession-resistant. See, e.g., "Stock Focus: Adult Entertainment Companies," Forbes.com (May 23, 2001) (citing a Ladenburg Thalmann equity analyst's confirmation that "U.S. sales of adult entertainment, including magazines, movies, telephone sex and the Internet, amount to about $11 billion").

To allow Bill 65 to remain in effect will force a constitutionally insufficient number of locations for Howard County's existing adult entertainment businesses, will foreclose future adult entertainment businesses after the remaining number of potentially viable and available sites are taken by other adult entertainment businesses, and will chill future adult entertainment businesses from trying to locate to sites in Howard County. See City of Renton 475 U.S. at 53 and Acorn Investments, Inc., 887 F.2d at 226.

C. The appellate court below conducted a constitutionally flawed secondary effects analysis.

The lower appellate court places too much reliance on the trial court and the Howard County Council for determining that Bill 65 is supported by sufficient secondary effects studies. Before Bill 65 is determined to be constitutional as to the secondary effects analysis, a more careful and searching appellate analysis is needed than the analysis provided by the lower appellate court. Pack Shack, 138 Md. App. at 75-77; see also City of Erie v. Pap's A.M., 529 U.S. 277, 120 S. Ct. 1382 (2000).         

Here, the lower appellate court merely allowed the Howard County Council to rely on studies that demonstrate "detrimental effects of adult entertainment uses." See Pack Shack, 138 Md. App. at 76. Clearly, no secondary effects studies can be considered sufficient until they are shown to be more applicable to the challenged zoning legislation. See Erie v. Pap's A.M., 529 U.S. 277, 120 S. Ct. at 1395. The lower appellate court goes no further than to recite the incantation that the Howard County Council was dealing with the general effects of adult entertainment, and not whether the studies had a sufficient relationship to the problems allegedly addressed by Bill 65.

The secondary effects evidence relied upon by the Howard County Council must, at a minimum, be reasonably believed to be relevant to the County's alleged secondary effects problems. Erie v. Pap's A.M., 529 U.S. 277, 120 S. Ct. at 1395. Moreover, the reviewing court's proper province is to determine whether the Howard County Council's secondary effects studies reasonably relate to Bill 65 and the needs for such a bill. See Alameda Books, Inc. v. City of Los Angeles, 222 F.3d 719, 724-25 (9th Cir. 2000), cert. granted, 532 U.S. 902, 121 S.Ct. 1223 (2001) (scheduled for Supreme Court oral argument the first week of December 2001); see also World Wide Video v. City of Tukwila, 117 Wash. 2d 382, 816 P.2d 18 (1991) (en banc). In Alameda Books, the Ninth Circuit quashed an ordinance prohibiting businesses that enabled both the viewing and purchasing of adult videos, where the secondary effects study that Los Angeles relied upon was not directed at the secondary effects of the type of business use being regulated by the Los Angeles ordinance. See Alameda Books, 222 F.3d at 724-25.

Consequently, the lower appellate court in this case clearly overlooked Alameda Books and World Wide Video when asserting that "[w]e are not aware of any case law which mandates that a trial court make further findings identifying the existence of secondary effects in a locality and exactly how the bill will alleviate them." Pack Shack, 138 Md. App. at 76.

More fundamentally, the appellate court decision below does not sufficiently show that the secondary effects studies used by the Howard County government were germane for demonstrating negative secondary effects from adult entertainment businesses in Howard County. This point is particularly important, because of new evidence showing that criminal activity does not necessarily increase in the presence of adult entertainment businesses. See Flanagan Enterprises, Inc., of Georgia v. Fulton County, Georgia, 242 F.3d 976 (11th Cir. 2001) (even government studies show that adult businesses did not create adverse secondary effects).

The lower appellate court refers to eighteen studies and reports from unspecified dates and from unspecified original sources (e.g., whether the studies were performed decades ago, whether they were conducted under exacting and recognized scientific methods, whether they were produced by biased organizations, and whether they were produced by competent authorities). However, quality of studies, rather than quantity of secondary effects studies, is what is sorely needed, and simply was not addressed by the lower appellate court. That is not sufficient to pass constitutional muster. See Erie v. Pap's A.M., 120 S. Ct. at 1395 and Alameda Books, 222 F.3d at 724-25

D. Bill 65 provides an unconstitutionally overbroad definition of "adult entertainment business."

Even though Appellant Pack Shack stipulated below that it is an adult entertainment business under Bill 65, other businesses should not be forced into a similar stipulation. Phrase-by-phrase, Bill 65's definition of Adult Entertainment Business reveals unconstitutionally overbroad and vague definitional language. See Howard County Zoning Regulation § 103.A.5.

For instance, § 103.A.5.a. defines Adult Book or Video Store as a business where "a significant or substantial portion of the stock in trade is characterized by an emphasis on matters depicting, describing or relating to sexual activities." Here, § 103.A.5.a. makes the same mistake as § 128.H.4 (see Argument § A.1.a, supra) by using the overbroad and vague language of depicting, describing or relating to sexual activities, rather than zeroing in on more specific descriptions of the material being defined (e.g. zeroing in on such films as Debbie Does Dallas, rather than on books and films geared towards improved sexual relationships for married couples, or on books documenting the history of adult films or nightclubs).

Section 103.A.5.a. is also overbroad for classifying an Adult Book or Video Store as a business "where a significant or substantial portion of the stock in trade" emphasizes certain sexually-related material. This language is hardly sufficient to alert a business whether it falls within the definition of an adult book or video store, and is unconstitutionally overbroad. See Renton, 475 U.S. at 47.

The vagueness and overbreadth continue in Section 103.A.5.b., which says that an Adult Movie Theater is a "business establishment ... that regularly and routinely offers for viewing on the premises films, videos or similar material characterized by an emphasis on matters depicting, describing or relating to sexual activities." The phrase "regularly and routinely", once again, does not sufficiently alert a business whether it falls within the definition of Adult Movie Theater. Moreover, as with § 103.A.5.a., § 103.A.5.b also makes the mistake of using the vague and overbroad phrase of "characterized by an emphasis on matters depicting, describing or relating to sexual activities." This language is unconstitutionally overbroad. See Renton, 475 U.S. at 47.

Section 103.A.5.c. continues with the vagueness and overbreadth. This section classifies an Adult Live Entertainment Establishment as a "business establishment open to the public or to members that regularly and routinely feature employee or live performers who appear in a state of nudity or presents live entertainment, exhibits, displays or performances characterized by sexual activities, real or simulated, or nudity." Here again, § 103.A.5.c. uses the vague phrase of "regularly and routinely". Moreover, this section's language is vague and overbroad for using the words "characterized by". Finally, this section goes too far by covering even simulated sexual activity. This language is unconstitutionally overbroad.

Finally, § 103.A.5 is impermissibly vague by stating that "'sexual activities' includes 'sexual conduct, 'sexual excitement' or 'sadomasochistic abuse' as these definitions occur in the Criminal Law provisions of the Annotated Code of Maryland." Even assuming for argument's sake that said definitions in the Maryland annotated code are currently sufficient, the Howard County government has no control over future amendments to those state code definitions, or, worse, the future creation of inconsistent and multiple state code definitions that are meant for different subchapters. Moreover, § 103.A.5 fails to put potentially affected businesses on notice of the definitions of these phrases, because § 103.A.5 does not even refer to precise state code sections.

CONCLUSION

Bill 65 fails to meet critical constitutional protections for free expression. For all the foregoing reasons, amicus DC FSC respectfully requests that this Court reverse the lower appellate court's judgment, and that this Court quash Bill 65 as unconstitutional.

Respectfully submitted,

__________________________

Jonathan L. Katz

Jon Katz, P.C., L.L.C.

8720 Georgia Avenue

Suite 703

Silver Spring, MD 20910

(301) 495-4300

David A. Wasserman

Law Offices of David A. Wasserman, P.A.

228 Park Avenue North Ste. B

Winter Park, Fl 32789

407 539 1140

(David Wasserman is not admitted in Maryland. Pro hac vice motion has been filed herewith)

Attorneys for amicus Free Speech Coalition of the District of Columbia, Maryland and Virginia

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that two copies of the foregoing Brief of Appellant were hand-delivered to each of the following parties, this 15th day of October, 2001, to:

Howard J. Schulman

Joseph S. Kaufman

SCHULMAN & KAUFMAN, LLC

100 Light Street, Suite 1330

Baltimore, MD 21202

Attorneys for Appellant, The Pack Shack, Inc.

Barbara M. Cook, Howard County Solicitor

Paul T. Johnson, Deputy County Solicitor

Louis P. Ruzzi, Senior Assistant County Solicitor

Howard County Office of Law

George Howard Building

3430 Courthouse Drive

Ellicott City, MD 21043

Attorneys for Appellee, Howard County

_____________________ 

Jonathan L. Katz

FOR A CONFIDENTIAL CONSULTATION, CONTACT US:

OUR ATTORNEYS

JONATHAN L. KATZ  (Admitted in Maryland, the District of Columbia, and Virginia). On parle francais.