Go4Play, Inc. v. Kent County Board of Adjustment ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
GO4PLAY, INC., d/b/a Bendover, a )
Delaware corporation, and 5455 DUPONT )
HIGHWAY, LLC, a Delaware limited )
liability company, )
Petitioners, )
)
v. ) C.A. No. K21A-01-003 NEP
)
THE KENT COUNTY BOARD OF )
ADJUSTMENT, )
)
Respondent. )
Submitted: April 8, 2022
Decided: July 12, 2022
OPINION AND ORDER
Upon Appeal from the Decision of the Kent County Board of Adjustment
REVERSED
John W. Paradee, Esquire, Stephen A. Spence, Esquire, and Brian V. DeMott,
Esquire, Baird Mandalas Brockstedt, LLC, Dover, Delaware, Attorneys for
Petitioners.
Frederick A. Townsend, III, Esquire, Hudson, Jones, Jaywork & Fisher, LLC,
Dover, Delaware, Attorney for Respondent.
Primos, J.
Before this Court is an appeal from a decision of the Kent County Board of
Adjustment (hereinafter the “Board”), which is also the respondent on appeal. The
petitioners are Go4Play, Inc., d/b/a Bendover (hereinafter “Go4Play”), and 5455
Dupont Highway, LLC (“5455” and, collectively, “Petitioners”). Petitioners are
appealing the Board’s decision upholding the determination of the Kent County
Department of Planning Services (hereinafter the “Department”) that Go4Play’s
business, which is located on the property of 5455, is an adult entertainment
establishment pursuant to Section 205-6 of the Kent County Code (hereinafter the
“Ordinance”), and must therefore obtain conditional use approval from the
governing body of Kent County, the Kent County Levy Court (hereinafter the “Levy
Court”). For the reasons that follow, the Board’s decision is REVERSED.
I. FACTUAL AND PROCEDURAL HISTORY
On June 16, 2020, in response to complaints from the public, mostly related
to a sign constructed at the business location by Go4Play, Department official
Brian Reed visited the business location. At the time of the visit, the store was
being stocked, and the owner, Ofir Bouzaglo, willingly1 allowed the Department to
photograph the store’s merchandise. Following his inspection, Reed issued a stop
work order. 2 On June 22, 2020, Bouzaglo sent an email to Reed indicating
1
Tab 5, Hr’g Tr. 65:2–4.
2
It is unclear from the record why the stop work order was issued. According to Reed, it was
issued because Go4Play had neither a building permit nor a sign permit. Go4Play’s owner
testified at the hearing that he had the required permits and that Sarah Keifer, the Department’s
Director, told him, “We just wanted to get your attention.” Id. at 61:1–3. Keifer stated that she
had sent Reed out “to investigate” because of complaints from the public. Tab 5, Hr’g Tr. at
39:4,11. She further testified that at the time Reed issued the stop work order “it wasn’t clear if
construction was being done” and that the order addressed only the lack of a sign permit, not the
lack of a building permit. Tab 5, Hr’g Tr. at 46:1.
2
Bouzaglo’s opinion that Kent County law was overly restrictive and vague but
offering to remove any item the Department deemed objectionable.3
On June 26, 2020, Reed returned to the store and took pictures of the
merchandise.4 Reed did not determine whether Go4Play’s operation constituted an
adult entertainment establishment pursuant to the Ordinance.5 That determination
was apparently made later by upper-level Department staff and County leadership,
as will be discussed infra. Shortly after the stop work order was issued, Bouzaglo
met with Department Director Sarah Keifer, who informed him, “the County
Administrator, it’s in his hands, you stepped on the wrong foot . . . ” 6 and “even if
[Bouzaglo sold] one sex toy, [Go4Play’s business would be] considered an adult
store.”7
According to Keifer, the determination that Go4Play’s business was an
adult entertainment establishment was made some time before June 19, 2020. The
Department staff came to the “conclusion that it met the definition. [Keifer] took
that to leadership.”8 The decision was “actually discussed among leadership of Kent
County, which would be the President of Levy Court, the Vice President of Levy
Court, as well as the County Administrator. And [Keifer] was part of the
conversation, as well.”9 The conclusion of the conversation was that Go4Play’s
business “met the definition . . . of an Adult Entertainment Establishment.”10
3
Tab 14, Notice of Decision, final page (unnumbered).
4
Tab 5, Hr’g Tr. at 14:8–11.
5
Tab 5, Hr’g Tr. at 15: 3–14.
6
Tab 5, Hr’g Tr. at 61:23–24. See also id. at 64:18–22 (“Again, they said that I stepped on the
wrong foot, on really heavy foot of the man upstairs, and they are going to do anything they can
to shut me down, and they said because of the name of your store.”).
7
Tab 5, Hr’g Tr. at 78:3–5.
8
Tab 5, Hr’g Tr. at 46:18–21.
9
Tab 5, Hr’g Tr. at 40:3–8.
10
Tab 5, Hr’g Tr. at 40:11–13.
3
On August 25, 2020, Go4Play appealed the Department’s decision to the
Board and sent a letter outlining reasons that it should not be considered an adult
entertainment establishment, including the contention that the Ordinance “suffer[s]
from significant constitutional infirmities, in that the Code provisions in question are
impermissibly vague, ambiguous, and overbroad—and therefore—
unenforceable.” 11 On November 19, 2020, Keifer sent a memorandum to the
Board memorializing the finding of the Department.12
A hearing on the appeal was held before the Board on November 19, 2020.
The Board heard testimony from Reed, Bouzaglo, and Keifer. Keifer testified to
the Department’s memorandum and reiterated the Department’s position that the
definition of “adult entertainment establishment” applies to establishments that sell
devices “used for” various sexually related activities, i.e. “sexual stimulation,
masturbation, intercourse, sodomy or sadism,” but she acknowledged that the phrase
“used for” is not found in the Ordinance.13 Near the end of the hearing the Board
heard unsworn14 testimony from the Mayor of the Town of Cheswold and a few of
its residents.15 Those testifying stated that they found Go4Play’s sign and business
name (i.e., “Bendover”) objectionable, but they also agreed that there was no
evidence of secondary effects such as crime or prostitution. One resident
mentioned the possibility that the value of his house could be adversely affected, but
he provided no support for this.16
11
Tab 3, November 19, 2020 Memorandum & Enclosures at 16.
12
Tab 3, November 19, 2020 Memorandum & Enclosures at 1–3.
13
Tab 5, Hr’g Tr. at 47–49: Tab 3, November 19, 2020 Memorandum & Enclosures at 2 (“More
specifically the items shown in Exhibits C,D,E,G, H, I, J, K, L and N are sexually-oriented devices
used for sexual stimulation, masturbation, intercourse, sodomy, and or sadism.”).
14
Tab 5, Hr’g Tr. at 91:20–22.
15
Tab 5, Hr’g Tr. at 91:24–98:11.
16
Tab 5, Hr’g Tr. 97:7–12.
4
At no time during the hearing was any evidence presented of adverse
secondary effects produced by Go4Play’s business. 17 Moreover, as mentioned
supra, complaints raised at the hearing focused primarily on the exterior of the
building (i.e., on the sign and the business name) rather than on the content of the
building.18
At the conclusion of the hearing, the Board voted 5-2 to affirm the
Department’s determination that Go4Play’s business constituted an adult
entertainment establishment as defined by the Ordinance, and that Go4Play was
therefore required to seek conditional use approval from the Levy Court to conduct
its business.19 Go4Play appealed that decision to this Court on January 20, 2021.
The Court heard oral argument on March 18, 2022. The Court has reviewed the full
record below, as well as all subsequent briefings and the transcript of the oral
argument, and this appeal is ripe for decision.
II. STANDARD OF REVIEW
On appeals from the Kent County Board of Adjustment, the Court limits its
scope of review “[t]o a determination of whether the Board's decision is free from
legal errors and whether the Board's finding [sic] of facts and conclusions of law are
17
See Tab 5, Hr’g Tr. 69:7–70:1 (Bouzaglo’s uncontroverted testimony that there had been no
complaints regarding crime, prostitution, or sexual activity, or regarding sexually-oriented
materials, used prophylactics, or drug paraphernalia, either outside the business location or on
neighboring properties).
18
This proposition was mentioned several times during the hearing, but most astutely by Board
Member Brauncy Jenkins: “I’m . . . concerned that the complaints seem to have been generated by
the physical building and not the content. . . . [a]nd the physical building may be suggestive in
nature, but it seemed like most of the testimony was about the exterior and not the content.” Tab
5, Hr’g Tr. at 141:19–21,142:3–6.
19
Tab 14, Notice of Decision at 22–23.
5
supported by substantial evidence in the record.” 20 Substantial evidence means
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”21 The Board must “particularize its findings of fact and conclusions of
law to enable the . . . Court to perform its function of appellate review.”22
After reviewing the Board’s decision, the Court “may reverse or affirm,
wholly or partly, or may modify the decision” of the Board.23 The Court “cannot
remand a case to the Board, upon appeal, for the purpose of making specific factual
findings, or for conducting further hearing or evidence taking.” 24 However, the
Court may hear additional evidence “so that a just decision may be reached, thus
providing the finality desired.”25 Questions of law are reviewed de novo.26
III. DISCUSSION
At the outset, the Court acknowledges that it “is the settled policy of
[Delaware courts] that a constitutional question will not be decided unless its
20
Pizzadili Partners, LLC v. Kent Cnty. Bd. of Adjustment, 2016 WL 4502005, at *3 (Del. Super.
Aug. 26, 2016), aff'd sub nom. LTR Properties, LLC v. Pizzadili Partners, LLC, 157 A.3d 757(Del. 2017) (TABLE).
21
McKinney v. Kent Cnty. Bd. of Adjustment, 2002 WL 1978936, at *4 (Del. Super. July 31,
2002) (quoting Wadkins v. Kent Cnty. Bd. of Adjustment, 1999 WL 167776, at *2 (Del. Super. Feb.
23, 1999)).
22
Pizzadili Partners, 2016 WL 4502005, at *3 (quoting Gilman v. Kent Cnty. Dep't of Plan., 2000
WL 305341, at *4 (Del. Super. Jan. 28, 2000)).
23
9 Del. C. § 4918(f).
24
Mellow v. Bd. of Adjustment of New Castle Cnty., 565 A.2d 947, 950 (Del. Super. 1988), aff'd
sub nom. Mellow v. Bd. of Adjustment of New Castle Cnty., 567 A.2d 422 (Del. 1989) (TABLE)
(citing Auditorium, Inc. v. Bd. of Adjustment, 91 A.2d 528 at 532 (Del. 1952)).
25
Id. at 953. See 9 Del. C. § 4918(e) (“If, upon the hearing, it shall appear to the Court that
testimony is necessary for the proper disposition of the matter, it may take evidence, or appoint a
referee to take such evidence as it may direct and report the same to the Court with the referee’s
findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which
the determination of the Court shall be made.”).
26
Pizzadili Partners, 2016 WL 4502005, at *3 (citing Freeman v. X-Ray Associates, P.A., 3 A.3d
224, 227 (Del. 2010)).
6
determination is essential to the disposition of the case.”27 After a careful review
of the briefings and record, this Court deems the constitutional questions raised at
every stage of this enforcement action by Go4Play “essential” to this case’s
disposition. 28 Specifically, the Court finds that the Board committed reversible
legal error when it rejected Go4Play’s argument 29
that the Ordinance is
27
Downs v. Jacobs, 272 A.2d 706, 708 (Del. 1970) (citations omitted).
28
As to Go4Play’s other legal arguments, the Court finds that none are dispositive.
First, the Court does not find that the Department’s failure to take enforcement action against
the business known as “Desires,” coupled with the subsequent enforcement action against
Go4Play, was arbitrary and capricious and therefore estops the Department from enforcing the
Ordinance. Pet’rs’ Opening Br. at 29. After being made aware of Desires’s merchandise, the
Department cited the store for violating its certificate of use permit. Tab 5, Hr’g Tr. 40:18–41:15,
102:18–19. There is no evidence in the record that the Department ignored its own precedent, as
it was clearly not aware of the type and nature of novelties sold by Desires. The Department
explained that its enforcement process is complaint-driven, thus supporting the conclusion that the
lack of prior enforcement against Desires was not arbitrary or capricious. The Court finds no
evidence that this was an action of selective enforcement, or that it shocks the conscience to such
a degree that the Department is estopped from enforcing the Ordinance against Go4Play. See
County Concrete Corp. v. Twp. of Roxbury, 442 F.3d 159, 169 (3d Cir. 2006) (quoting Nicholas
v. Pa. State Univ., 227 F.3d 133, 139 (3d Cir. 2000)) (holding that “non-legislative state action
violates substantive due process if ‘arbitrary, irrational, or tainted by improper motive,’ or if ‘so
egregious that it “shocks the conscience”’”).
Second, the Board’s Decision did not violate the open meetings requirement of the Freedom of
Information Act (hereinafter “FOIA”) codified in 29 Del. C. § 10004. There were no votes cast
or exchanged during the email exchange. The members, for the most part, affirmed what they
had already stated in the public hearing with the parties present, and the emails show no active
exchange of ideas. See Tab 9, Email Correspondence. Therefore, the email exchange was not a
means of circumventing FOIA. See Op. Att'y Gen. 10-IB17, 2010 WL 5186152 (Del. A.G. Dec.
15, 2010) (holding that emails exchanged between members of the Smyrna Town Council in which
a quorum of the council discussed a matter before that body were not in violation of FOIA, as there
was no “active exchange of ideas,” even though each member was informally polled on his or her
position). See also Tyron v. Brandywine Sch. Dist. Bd. of Educ., 1990 WL 51719, at *3 (Del.
Ch. Apr. 20, 1990) (finding that phone calls to various board members to “gain a general sense of
the Board’s position” did not violate FOIA). The Board did convene on January 21, 2021, and
the members were asked to “simply move the approval of the decision” and sign their names. Tab
12, Tr. of Jan. 21, 2021, Bd. Meeting.
Go4Play’s other arguments, listed at Petitioners’ Opening Brief at 18, are commingled with its
constitutional claims, and the Court cannot parse them out without considering the constitutional
issues.
29
Tab 5, Hr’g Tr. at 10:22–11:5.
7
unconstitutional due to vagueness and overbreadth. In addition, the Court finds that
there is no limiting construction available that could save the Ordinance.
A. The Ordinance is Facially Vague.
The Ordinance reads as follows:
§ 205-6 ADULT ENTERTAINMENT ESTABLISHMENT
A. Any establishment or portion thereof which offers sexually-oriented
material, devices, paraphernalia, services or performances, or any
combination thereof, or in any other form, whether printed, filmed,
recorded or live; and which excludes admission or participation in any
manner by persons under the age of 18.
B. Furthermore, the term “sexually-oriented” shall be interpreted in the
context of the following specified sexual activities and anatomical
areas:
(1) Genitals in a state of sexual stimulation or arousal;
(2) Acts of human masturbation, sexual intercourse, sodomy,
sadism, masochism or bestiality;
(3) Fondling or other erotic touching of human genitals, pubic
region, buttocks or female breasts;
(4) Less than completely or opaquely covered human
genitals, pubic region, buttock, female breasts below a point
immediately above the top of the areola; and
(5) Human male genitals in a discernibly turgid state even if
completely and opaquely covered.
A statute is void for vagueness if it fails to give a person of ordinary
intelligence fair notice that his or her contemplated behavior is forbidden by
the statute, or if it encourages arbitrary or erratic enforcement. 30 When First
Amendment issues are not implicated, “the litigant must demonstrate that the statute
under attack is vague as applied to his own conduct, regardless of its
30
State v. Baker, 720 A.2d 1139, 1147 (Del. 1998) (quoting Sanders v. State, 585 A.2d 117, 127
(Del. 1990)).
8
potentially vague application to others.” 31 However, when a First Amendment
issue exists, “the Court must review the statute on its face to determine whether the
vagueness itself will dissuade persons from constitutionally protected conduct.”32
In viewing these challenges, “[t]he most important aspect is not actual notice,
but the other principal element of the doctrine—the requirement that a legislature
establish minimal guidelines to govern . . . enforcement.”33 “It 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 and say who could be rightfully
detained, and who should be set at large.”34 It is “necessary” for an ordinance or
statute to contain “minimal guidelines for enforcement . . . to prevent a ‘standardless
sweep’ that allows for the pursuit of ‘personal predilections.’”35
One of the hallmarks of facially vague statutes is their allowance of arbitrary
enforcement. This constitutional concern is typically subdued or inhibited by a
limiting principle or standard by which the enforcement can be guided. For
ordinances that regulate adult establishments that are strictly retail-oriented, i.e., that
do not offer merchandise or entertainment for on-premises viewing, federal courts
have uniformly found the phrase “significant” or “substantial,” as qualifying the
amount of revenue or stock of merchandise in an establishment, to be
constitutionally acceptable.36
31
In re Hanks, 553 A.2d 1171, 1176 (Del. 1989) (quoting Aiello v. City of Wilmington, Del., 623
F.2d 845, 850 (3d Cir. 1980)).
32
State v. Gen. Chem. Corp., 559 A.2d 292, 295 (Del. Super. 1988).
33
Baker, 720 A.2d at 1148 (quoting Kolender v. Lawson, 461 U.S. 352, 357–58 (1983)).
34
Id. (quoting Kolender, 461 U.S. at 358 n.7).
35
Id. (quoting Robinson v. State, 600 A.2d 356, 365 (Del. 1991)).
36
See, e.g., Dr. John's, Inc. v. City of Roy, 465 F.3d 1150, 1158 (10th Cir. 2006) (noting that
“significant or substantial” language gives the officials a standard that “satisfies this court that
such a risk is not present to such a degree as to justify facial invalidation”); World Wide Video of
Washington, Inc. v. City of Spokane, 368 F.3d 1186, 1198–99 (9th Cir. 2004) (“Cases directly
9
The State of Delaware has such a limiting standard in its adult entertainment
establishment statute, providing that “[a]dult-oriented retail establishment” shall
mean “any commercial establishment, business or service, or portion thereof, which
offers as a substantial portion of their [sic] business sexually-oriented material,
devices, or paraphernalia, but does not allow on-site displays of sexually-oriented
materials or sexual activities.”37 During the hearing held before the Board, the
Department acknowledged that the Ordinance is more restrictive than the Delaware
statute.38
In addition to the absence of a quantity requirement, which would restrict the
size of the figurative “net,” even more telling in this case is the Board members’
obvious difficulty grasping the meaning of the Ordinance. Federal courts have
deemed statutes void on their face when those that are asked to enforce a statute
cannot determine its meaning.39 The following excerpts illustrate this concern:
addressing the phrase ‘significant or substantial’ in this context have upheld its validity. Moreover,
this phrase is readily susceptible to a narrowing construction.” (citations omitted)); Pleasureland
Museum, Inc. v. Beutter, 288 F.3d 988, 996–97 (7th Cir. 2002) (upholding definitions of
“‘Adult Bookstore,’ ‘Adult Novelty Store,’ and ‘Adult Video Store’ as commercial
establishments that, inter alia, ‘derive [ ] a significant or substantial portion or [sic] [their]
revenues' from Media ‘characterized by the depiction or description of’ nudity or sexual
activities.” (alterations in original)); ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413, 1419
(8th Cir. 1994) (holding that ordinance was not “devoid of meaningful legislative standards” where
it employed phrase “substantial portion”).
37
24 Del.C. § 1602(3) (emphasis supplied). The statute goes on to define “[s]exually oriented
material” as “[a]ny book, article, magazine, publication or written matter of any kind, drawing,
etching, painting, photograph, motion picture film or sound recording, which depicts sexual
activity, actual or simulated, involving human beings or human beings and animals, or which
exhibits uncovered human genitals or pubic region in a lewd or lascivious manner or which
exhibits human male genitals in a discernibly turgid state, even if completely covered.” Id. at
1602(18).
38
Tab 5, Hr’g Tr. at 48:3–12, 70:11-24.
39
See, e.g., Ellwest Stereo Theater, Inc. v. Boner, 718 F.Supp. 1553, 1581 (M.D. Tenn. 1989)
(holding an ordinance unconstitutionally vague “when the regulating authority cannot determine
the establishments which are subject to its authority”); City of Knoxville v. Entm't. Res., LLC, 166
S.W.3d 650, 656–57 (Tenn. 2005) (holding an ordinance unconstitutionally vague when “the
10
1) Board Member Temple Carter: [I’m] going to vote yes. Um,
however, I think that the thing is very ambiguous. I’m not sure that
this Board is going to find the right answer. . . .
Mr. Townsend: Can we get – can we offer a little bit more support than
that for our—
[Mr.] Carter: I just think that the entire—that entire section is very
ambiguous. I think the code people did what they thought was correct.
So, you know, based on that, that the County made the right decision,
although I think there is [sic] a lot of questions to be answered.40
2) Board Member Eric Crossan: [T]here again, in reading the code,
maybe I’m interpreting it differently, but I’m reading where sexually
oriented materials, comma, devices, comma, paraphernalia are three
different things . . . 41
3) Board Member Brauncy Jenkins: I know that I am picking at a
gnat, but it just seems like the language is vague in some instances to
me, and it’s difficult to grasp. I mean, it was presented well, but the
way the language is has something to be desired. . . . I vote no on
appeal on A-20-38 based upon the ambiguity of the definition. And
based on that, that’s my decision. 42
Even more revealing of the Ordinance’s facially vague quality were
Department counsel’s various statements regarding the Ordinance. The most
troubling of these statements occurred when the Board’s counsel was trying to get
the Department’s counsel to explain what the phrase “in the context of” means in
order to provide the Board some clarification regarding the Ordinance’s meaning.
The Department’s counsel replied,
“In the context of?” I have never seen that. I was a lawyer for the
House of Representatives in Delaware for years. We didn’t draw it
officers charged with enforcing the ordinance [are unable] to define its key terms”).
40
Tab 5, Hr’g Tr. at 150:19–151:12.
41
Tab 5, Hr’g Tr. at 152:12–17.
42
Tab 5, Hr’g Tr. at 130:9–12, 154:4–7.
11
like that. I’m not being critical really, because one of the beauties of
this is you could never credibly say that what it spells out . . . . You
know, how do A and B intersect? I can’t give you a precise answer . .
. .43
If the “beauty” of the Ordinance derives from the fact that no one “could
[ever] credibly say” what the Ordinance means, then in essence, the enforcers of the
Ordinance can apply it to any establishment that falls within their subjectively
determined meaning of the Ordinance. Neither Department counsel nor the Board
could grasp the meaning of the Ordinance. Near the end of the hearing, one Board
member who voted “yes” instructed fellow Board members that “[i]f there is any
doubt to me that this is an appropriate use, I think we need to kind of err on the side
of caution, let them go through a conditional use process.”44 This kind of thinking
both casts too wide a net and exemplifies a misunderstanding of the County’s burden
in showing it has a substantial interest in regulating such expression.
The Supreme Court of the United States has stated that when a vague
ordinance “abuts upon sensitive areas of basic First Amendment freedoms, it
operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably
lead citizens to steer far wider under the unlawful zone than if the boundaries of the
forbidden areas were clearly marked.”45 If the Board, which is tasked with being the
first avenue of affirmation of an enforcement action, cannot understand the
Ordinance clearly, and the counsel who represents the enforcement agency cannot
do the same, then the Ordinance is vague on its face. For the reasons stated, the
43
Tab 5, Hr’g Tr. at 108:10–17, 108:19–21.
44
Tab 5, Hr’g Tr. at 137:7–11. To Board counsel’s credit, following this statement, he
“caution[ed] the group against presuming that you have a duty to be cautious . . . and translating
that into affirming the decision . . . .” Id. at 138:1–4.
45
Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (internal quotations and citations
omitted).
12
Court finds the Ordinance to be facially vague.
B. The Ordinance is Unconstitutionally Overbroad.
“Vagueness is a concept that is so closely related to the issue of overbreadth
that the two are very often used interchangeably.”46 A statute is unconstitutionally
overbroad if it “does not aim specifically at evils within the allowable area of
government control, but sweeps within its ambit other activities that constitute an
exercise of protected expressive or associational rights.”47 As with facial vagueness
challenges, the Court “must consider not only conduct clearly prohibited by the
regulation but also conduct that arguably falls within its ambiguous sweep.” 48
Thus, this analysis is similar to the one supra.
In United Video Concepts, Inc. v. City of Dover, this Court considered an
overbreadth challenge to a municipal ordinance nearly identical to the Ordinance.49
As the Board concedes on appeal, during the hearing before the Board the
Department and Go4Play “essentially stipulated that the Court in United Video was
interpreting a municipal statute for our purposes identical to [the Ordinance].”50
The only difference appears to be the Ordinance’s restriction of eighteen-year-olds
from either “admittance or participation”—a distinction that counsel for the Board
conceded at oral argument to be “superficial.” 51 Thus, this Court’s finding that
Dover’s mirror-image ordinance was overbroad carries great weight in the current
analysis. As the Court then observed, the Dover ordinance applied
46
United Video Concepts, Inc. v. City of Dover, 1994 WL 682321, at *3 (Del. Super. Oct. 31,
1994), aff'd, 660 A.2d 396 (Del. 1995) (TABLE).
47
Taylor v. State, 76 A.3d 791, 799 (Del. 2013).
48
Farrell v. Burke, 449 F.3d 470, 499 (2d Cir. 2006).
49
See United Video, 1994 WL 682321, at *1-*2 (text of ordinance in question).
50
Board’s Answering Br. at 14.
51
Oral Arg. Tr. at 40:13–17, 51:2–3.
13
not only [to] an ‘establishment’, but also any ‘portion thereof.’ The
choice of ‘establishment’ and ‘offers’ instead of ‘commercial
establishment’ and ‘offers for sale’ further appears to extend the reach
of the ordinance. Such broad terms could literally encompass not only
corner newsstands, but in addition such institutions as public libraries,
movie theaters that run R-rated movies, and hotels with pay per view
channels in hotel room televisions.52
At the Board hearing, the Department’s counsel appeared to concede that
many of the concerns of this Court noted in United Video are applicable to the
Ordinance when he stated,
Personally, I think it should be amended just to make sure libraries, Pay
Per View hotel rooms—um what was my other example—movie
theaters could never fall under the umbrella of the ordinance. . . . [I]t
can be made better for those it is not intended to ensnare in the first
place. That’s my point. And that was Judge Ridgely’s point.53
The Department’s counsel appeared to argue that where an individual or entity
challenges an ordinance on First Amendment overbreadth grounds, the challenge
cannot succeed if the challenger’s activities fall within the ordinance’s intended
reach, even if other individuals and entities are unintentionally brought within the
ordinance’s reach due to its overbreadth.54 This evinces a basic misunderstanding
of the concept of overbreadth. As this Court explained in United Video,
A party may bring a claim of overbreadth even if the activity engaged
in by the party is within the allowable area of control. Standing is
retained by this type of party if it can show that as to other individuals
not before the court, the allegedly overbroad statute or ordinance 1) is
overbroad in a real and substantial manner, and 2) no limiting
construction is possible. If such a showing can be sustained, the statute
52
United Video, 1994 WL 682321, at *3.
53
Tab 5, Hr’g Tr. at 101:9–13, 107:17–20.
54
See Tab 5, Hr’g Tr. at 100:3–101:8.
14
or ordinance will be invalidated.55
The other issue, not noted in United Video but clear to this Court, is that the
Ordinance lumps every type of adult entertainment establishment into one all-
56
encompassing definition without delineating between the different types.
Go4Play recognized this below, stating that the Ordinance appeared to be a “mish-
mash” of portions of the Delaware Code, i.e., by addressing only “adult
entertainment establishments” in forming its definition without distinguishing
“adult-oriented retail establishments.” 57 In other words, the “in the context of”
portion of the Ordinance contains a list of “specified sexual activities and anatomical
areas” that is nearly identical to the definition of “[s]pecific sexual activities” in the
Delaware statute.58 However, in the Delaware statutory scheme, on-site displays of
“[s]pecific sexual activites” are associated only with “[a]dult entertainment
establishments,” while “adult-oriented retail establishments” “do[ ] not allow on-site
displays of . . . sexual activities.”59 This may help explain some Board members’
difficulty with applying the Ordinance’s definition of “specified sexual activities and
anatomical areas” to Go4Play’s business activities.
This Court takes judicial notice of Delaware’s counterpart statute, which
clearly defines the separate types of adult establishments and under which Go4Play’s
business would not even fall into the definition of “adult entertainment
55
United Video, 1994 WL 682321, at *2 (emphasis supplied).
56
Cf. Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207, 1221 (N.D. Ga. 1981) (evaluating
regulations that dealt with adult-oriented retail establishments and that did separate the definitions
for different types but noting that their “substantially overbroad [nature] is borne out by the great
overlap among the three definitions”).
57
Tab 5, Hr’g Tr. at 72:1–7.
58
Compare Section 205-6 with 24 Del.C. § 1602(19).
59
24 Del.C. § 1602(2) and (3).
15
establishment,”60 and Dover’s ordinance from United Video, as it appears to have
been amended to clarify the different types of establishments the ordinance covers.61
As mentioned supra¸ federal courts have consistently held that an ordinance that
deals with retail sales requires some limiting principle for adult-oriented retail
establishments that sell or rent goods rather than entertain through live or recorded
performances. Thus, a bookstore that sells one adult book or a video store that rents
one X-rated video would both fall into the Ordinance’s “net,” even though the
Delaware Supreme Court has noted that a video store that rents explicit videos for
off-site use does not give rise to secondary effects such as prostitution and criminal
obscenity.62 Moreover, as Department’s Counsel mentioned, there are several other
businesses that fall within the Ordinance that cannot be said to create the secondary
effects, as discussed infra, that the Levy Court sought to regulate. 63 For these
reasons, the Court finds that the overbreadth of the Ordinance is substantial and
60
24 Del.C. § 1602(2). In addition, Go4Play proffered that its business does not fall within the
Delaware Code’s definition of adult-oriented retail establishment. Tab 5, Hr’g Tr. at 62:18–63:1.
61
Code of Ordinances, City of Dover, Appendix B - Zoning, Art. 12. Definitions: Adult
entertainment establishment (available at cityofdover.com) (“[T]he term ‘adult entertainment
establishment’ shall encompass, but shall not be limited to, what is commonly known as
‘massage parlors,’ ‘adult bookstores’ and ‘adult entertainment centers.’”).
62
Richardson v. Wile, 535 A.2d 1346, 1350 ( Del. 1988)).
63
The Ordinance’s provision limiting applicability to those establishments excluding admission
or participation by individuals under 18 does not significantly restrict the “net” for overbreadth
purposes, because presumably, for most of those establishments noted by the Department’s
counsel, see supra note 53, “participation” or “admittance” by those under eighteen could or
would be restricted. See Wreal, LLC v. Amazon.com, Inc., 2015 WL 12550912, at *5 (S.D. Fla.
Aug. 31, 2015), aff'd, 840 F.3d 1244 (11th Cir. 2016) (indicating that pay per view or adult themed
channels normally require consumers to “verify that they are over eighteen years old and are
willing to view adult content”); Mississippi Emp. Sec. Comm'n v. Harris, 672 So. 2d 739, 741–42
(Miss. 1996) (“Anyone born in this century and living on this planet should know the ‘R’ movie
rule, which is ‘no one under 17 admitted unless a parent accompanies them into the movie.’ This
rule means parents must give permission for their children to view an “R” rated film.”); United
States v. Am. Libr. Ass'n, Inc., 539 U.S. 194, 199, 214 (2003) (plurality opinion) (allowing a library
to limit access to pornographic or obscene sites to “prevent minors from obtaining access to
material that is harmful to them” while “unblock[ing] filtered material” for adults who request it).
16
real.64 The Ordinance is both facially vague and overbroad.
C. No Limiting Construction of the Ordinance Is Possible.
This Court has been instructed by the Delaware Supreme Court that “[w]here
a possible infringement of a constitutional guarantee exists, the interpreting court
should strive to construe the legislative intent so as to avoid unnecessary
constitutional infirmities”65 and that “[e]ven an incidental impact requires that the
statute be narrowly interpreted so that its effect on first amendment freedoms is no
greater than is essential to serve a substantial governmental interest.”66 Under both
doctrines—i.e., vagueness and overbreadth—the Ordinance can be saved as long as
a limiting construction is possible.
In Richardson v. Wile, the Delaware Supreme Court noted that
establishments promoting on-site displays of activities that the ordinance sought to
regulate would be “likely to promote crimes of obscenity and prostitution,” in
contrast to establishments offering items for off-premises use—i.e., adult-oriented
retail establishments.67 In that case, the Supreme Court declined to read into the
statutory provision in question—24 Del.C. § 1602(2)—language limiting the
statutory provision’s reach to those businesses offering explicit material as a
“substantial portion” of their business, as desired by the municipality, and stated that
64
To this point, during the hearing the Board’s counsel responded as follows to Department
counsel’s argument that the language of the Ordinance could be “improved”: “You mentioned
that the definition could be improved. But you don’t mean to suggest that this group can improve
that definition tonight?” The Department’s counsel replied, “No. No. That would have to be a
text amendment. You know, it would start in the planning staff and work its way through the
[Regional Planning Commission] and then to the Levy Court.” Tab 5, Hr’g Tr. 107:7–16.
65
Baker, 720 A.2d at 1144 (citing Richardson, 535 A.2d at 1350).
66
Richardson, 535 A.2d at 1350 (citations omitted).
67
Id. at 1350.
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“[t]o supply an enforceability standard where one does not exist suggests an
awareness or understanding of what threshold the General Assembly would have
imposed had it considered the question. We are not inclined to engage in this
exercise in judicial legislation.”68
Moreover, the Richardson Court, in discerning the “governmental interest”
being served, had the benefit of an explicit statement of purpose, i.e., 24 Del.C. §
1601, which provided that the purpose of Delaware’s Adult Entertainment Act was
to reduce and prevent the crimes of obscenity and prostitution. The drafters of the
Ordinance, by contrast, provided no such specific statement of purpose, but rather
only a general intent to benefit County residents, including their “health, safety,
morals, . . . and general welfare . . . .”69 This in itself renders the task of seeking an
appropriate limiting construction more problematic, as it increases the difficulty of
discerning the intent of the Levy Court in regulating adult entertainment and other
adult-oriented businesses. While a general intent to promote the welfare of County
68
Id. at 1351.
69
Compare § 205-3 Purpose (“The purpose of this chapter is, pursuant to the authority granted in
Article 2, Section 23 of the State Constitution of 1897; Title 9, Delaware Code, Chapter 49, Part
III; and Title 9, Delaware Code, Chapter 49, Sub Chapter II, to promote the health, safety, morals,
convenience, order, prosperity and general welfare of the County residents . . . to conserve and
protect the value of property . . . .) with 24 Del.C. § 1601 (“It is the finding of the General Assembly
that the health, safety and welfare of the people of the State are imperiled by the increasing
incidence of the crimes of obscenity, prostitution and of offenses related thereto. The General
Assembly finds that the foregoing crimes are principally facilitated by the widespread abuse of
legitimate occupations and establishments, to wit, adult entertainment establishments. It is the
further finding of the General Assembly that existing criminal penalties for the foregoing offenses
have been rendered ineffective by the active concealment of the identities of the individuals who
create, control and promote such businesses; by the failure of these individuals and businesses to
exercise adequate control and supervision over the activities of their employees; and by the active
promotion of prostitution and obscenity by these individuals and businesses for their own financial
gain. It is the additional finding of the General Assembly that the health, safety and welfare of the
people of the State are imperiled by the widespread operation of adult-oriented retail businesses
without reasonable time, place and manner limitations on such businesses.”).
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residents could be broadly viewed as including the goal of preventing secondary
effects such as obscenity and prostitution, formally reading that intent into the
Ordinance would also, in the words of the Richardson Court, constitute “judicial
legislation.”
As with the statute under consideration in Richardson, the issue with the
Ordinance is that there is no delineation among different types of adult entertainment
establishments, and no limiting principle that would guide enforcement in the
context of retail establishments selling merchandise intended for off-site use.
Rather, the Ordinance casts the widest net possible and appears to include every
form of establishment under the term “entertainment.” Richardson stands for the
proposition that an all-encompassing definition of an adult entertainment
establishment cannot properly capture, or be enforced upon, establishments that sell
adult-themed merchandise intended for off-premises use without an enforceability
standard that limits its reach.70
Post-Richardson, the State of Delaware amended its statute to include a
separate category for “[a]dult-oriented retail establishment[s]” and added the
limiting or enforceability principle “substantial portion of their business.”71 This
amendment aligns with a vast majority of statutes approved as constitutional by
federal courts.72 The Court will not speculate as to what threshold the Levy Court
feels is appropriate to apply to this type of establishment, which deals solely with
adult-themed merchandise sold for off-premises use. The purpose section
applicable to the Ordinance mentions nothing about secondary effects of adult
businesses, and the Court cannot write in a limiting principle when there is no
70
Richardson, 535 A.2d at 1350.
71
24 Del. C. § 1602(3).
72
See supra note 36.
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specific legislative intent or evidence of secondary effects to guide its hand.
Accordingly, the Court has no avenue to limit the Ordinance.73
IV. CONCLUSION
The Board committed legal error when it failed to recognize the constitutional
infirmities associated with the Ordinance. After a de novo review of the legal issues
inherent in this case, the Court finds that the Ordinance is both vague and overbroad,
and that there is no limiting construction available that would save the Ordinance.
Therefore, application of the Ordinance to Go4Play’s business is unavailable, and
the decision of the Board is REVERSED.
73
The Court in United Video did apply a limiting construction by confining application of the
Dover ordinance to “those adult entertainment establishments that research and experience has
[sic] shown cause undesirable secondary effects of crime, prostitution and the problems associated
with adult entertainment.” 1994 WL 682321, at *4. In finding the Dover ordinance specifically
applicable to the business in that case, however, the United Video Court noted that the record below
was “replete with evidence that the appellant’s store was, both under prior ownership and as
operated by the appellant, a source of exactly the kind of undesirable secondary effects the
ordinance was designed to avoid.” Id. In this case, by contrast, there is no such evidence—in
fact, all the evidence presented to the Board demonstrated that there are no such undesirable effects
associated with Go4Play’s business. Moreover, as noted supra, the Richardson Court held that a
store renting explicit videos for off-site viewing does not produce the undesirable secondary effects
commonly associated with establishments that promote on-site activities. Richardson, 535 A.2d
at 1350.
Finally, while this Court in United Video looked for guidance to the United States Supreme
Court decision in City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), United Video was
decided before the later Supreme Court decision in City of Los Angeles v. Alameda Books, Inc.,
535 U.S. 425 (2002) (plurality opinion), which “clarif[ied] the standard for determining whether
an ordinance serves a substantial government interest under Renton . . . .” 535 U.S. at 433. As
the Supreme Court explained in Alameda Books, in determining whether a statute or ordinance
passes muster as an appropriate content-neutral time, place, and manner restriction, a court must
conduct a burden-shifting inquiry in which the governmental entity first submits its rationale for
the restriction, and those challenging the ordinance then have an opportunity to cast doubt on that
rationale. Id. at 438-39. No such burden-shifting inquiry was conducted by the Board here.
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IT IS SO ORDERED.
NEP:tls
Via File & ServeXpress
oc: Prothonotary
cc: Counsel of Record
21