Allno Enterprises, Inc. v. Baltimore County

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALLNO ENTERPRISES, INCORPORATED, 
Plaintiff-Appellant,
v.  No. 00-1921
BALTIMORE COUNTY, MARYLAND,
Defendant-Appellee.

LOVE ONES LINGERIE & GIFT SHOP, 
INCORPORATED,
Plaintiff-Appellant,
v.  No. 00-1922
BALTIMORE COUNTY, MARYLAND,
Defendant-Appellee.

SOUTHWEST ENTERPRISES, 
INCORPORATED, d/b/a Southwest
Video,
Plaintiff-Appellant,
 No. 00-1923
v.
BALTIMORE COUNTY, MARYLAND,
Defendant-Appellee.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-99-1249-S, CA-99-1498-S, CA-99-1496-S)
Argued: April 4, 2001
Decided: June 1, 2001
2 ALLNO ENTERPRISES v. BALTIMORE COUNTY
Before WIDENER and NIEMEYER, Circuit Judges, and
Lacy H. THORNBURG, United States District Judge for the
Western District of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Howard J. Schulman, SCHULMAN & KAUFMAN,
L.L.C., Baltimore, Maryland, for Appellants. John Edward Beverun-
gen, OFFICE OF LAW, Towson, Maryland, for Appellee. ON
BRIEF: Virginia W. Barnhart, County Attorney, Amanda Stakem
Conn, OFFICE OF LAW, Towson, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Allno Enterprises, Inc., et al., ("Allno") petitions this court to
review the lower court’s 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
ALLNO ENTERPRISES v. BALTIMORE COUNTY 3
20 percent or more of its stock or floor space to adult products. The
Ordinance restricts the location of adult businesses to manufacturing,
heavy ("MH") zones, and further provides that adult businesses may
not be located within 1,000 feet of any residence, church, school,
park, library, or child care establishment. In addition, the Ordinance
provides that an adult business may not be located within 2,500 feet
of another adult business. However, the Ordinance permits businesses
which devote less than 20 percent of their stock or floor space to adult
products to operate throughout the county; thus, as the County stated
during oral argument, a business which generates 100 percent of its
sales from adult products, but devotes less than 20 percent of its stock
or floor space to such products, is free to remain in its present location
outside the MH zone.
Allno is an adult business which was operating before the Ordi-
nance was enacted. Collectively, Appellants operate three such adult
businesses within Baltimore County. Each of the adult businesses is
located outside the MH zone, and each had greater than 20 percent of
their inventory devoted to adult products prior to the enactment of the
Ordinance. Since the Ordinance was enacted, Allno has been cited by
the County for violating the Ordinance; to wit, Allno was cited for
having in excess of 20 percent of their stock or floor space devoted
to adult products. In response to the citation, Allno has reduced their
stock and/or floor space devoted to adult products to comply with the
Ordinance. Allno has not attempted to relocate to the MH zone in
order to operate a "100%" adult business.
Allno brought an as-applied challenge to the Ordinance. Though it
concedes Baltimore County’s important interest in addressing the sec-
ondary effects of adult entertainment, see, e.g., Young v. American
Mini Theatres, Inc., 427 U.S. 50 (1976); City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1986), Allno objects to the manner by
which Baltimore County chose to address the problem. Specifically,
Allno asserts that the Ordinance fails to provide reasonable alternative
avenues of communication. See Renton, 475 U.S. at 54; D.G. Restau-
rant Corp. v. City of Myrtle Beach, 953 F.2d 140, 147 (4th Cir. 1991).
In addition, Allno challenges the constitutionality of that portion of
the Ordinance which provides for warrantless searches of adult busi-
nesses by Baltimore County inspectors.
4 ALLNO ENTERPRISES v. BALTIMORE COUNTY
We are asked to review the district court’s grant of summary judg-
ment to Baltimore County on each of these issues, and the court’s
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 court’s 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 party’s submissions to the court
"show that there is no genuine issue of material fact and that the mov-
ing party is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). "[A]t the summary judgment stage, the judge’s 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 estab-
lish 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 ade-
quately 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 Air-
lines, 127 F.3d 337, 342 (4th Cir. 1997) (same).
ALLNO ENTERPRISES v. BALTIMORE COUNTY 5
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 Ordinance’s limit on the sale of adult mate-
rials 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 propor-
tion of the total acreage within the locality, while others have consid-
ered 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 consti-
tution does not mandate that any minimum percentage of land be
made available for certain types of speech[,]" we will not address
Allno’s 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 num-
ber of sites to which it can relocate if it so chooses. As Allno is
mounting an as-applied challenge to the Ordinance, we need deter-
mine only whether there are an adequate number of available sites to
satisfy the the three adult business-Appellants’ potential need to relo-
cate.
Determining the number of sites which are "available" after the
enactment of the Ordinance is the core of this dispute. Local govern-
6 ALLNO ENTERPRISES v. BALTIMORE COUNTY
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 avail-
able, 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 develop-
ment, 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 con-
siderations include "the accessibility to the general public, the sur-
rounding 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, park-
ing, 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 relo-
cate, and, hence, adequate alternative avenues of communication. In
defending the constitutionality of the Ordinance, the County submit-
ted a listing ("Costar listing") of available properties within the MH
ALLNO ENTERPRISES v. BALTIMORE COUNTY 7
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 none-
theless 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. Continu-
ing our review of Allno’s 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 par-
ticular 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.").
8 ALLNO ENTERPRISES v. BALTIMORE COUNTY
their proximity to highways, thus facilitating public access, make
these sites especially well suited for the location of a generic commer-
cial establishment.
Finally, Allno improperly excluded the Williams Trust land. Allno
declared the Williams Trust land unavailable because "it would be
highly unlikely for the land owner to pursue" leasing a portion of the
land to a small retail business. Conjecture and speculation about a
land owners’ proclivity to lease a parcel of land to an adult business
is not sufficient to render it unavailable. Cf. Lim v. City of Long
Beach, 217 F.3d 1050, 1055 (9th Cir. 2000) (once a locality has dem-
onstrated the facial availability of a list of properties, "it is for Plain-
tiffs to show that, in fact, certain sites would not reasonably become
available."). The Williams Trust land is undeveloped with access to
roads; while Allno may have to subdivide it, we see no reason to
exclude it from the list of available properties within the MH zone.
Adding to the seven available properties identified in the Costar
listing parcel number 1224, the two Quad Avenue sites, and the Will-
liams Trust land, we conclude that there are at least eleven available
sites. As such, it is clear that the three adult business-Appellants here
have more than adequate alternative avenues of communication.
B. Discovery
Allno claims that the district court abused its discretion in denying
them formal discovery. We disagree. First, discovery was not totally
foreclosed. The district court ordered the parties to cooperate with
each other in conducting informal discovery, and the record indicates
that both parties complied. Dissatisfied with this informal discovery,
Allno asked the court to order the disclosure of (1) the names of busi-
nesses to which the County had issued citations for violating the adult
business zoning law, and (2) the names of businesses known to the
County that would be covered by the zoning ordinance. With respect
to the names of the adult businesses, in addition to the County’s
uncontroverted claim that it did not have such information, the record
shows that Allno was fully able to collect such information on its
own. With respect to the names of businesses which had been cited,
we do not think that this information was material to Allno’s as-
applied challenge. Allno never sought or claimed to be challenging
ALLNO ENTERPRISES v. BALTIMORE COUNTY 9
the Ordinance on behalf of all of the adult businesses in the county.
Rather, Allno challenged the application of the Ordinance on the
grounds that it adversely impacted them. Thus, the identity of other
businesses cited by the County for violating the Ordinance is irrele-
vant.
The district court did not abuse its discretion in denying formal dis-
covery in this case.
C. Administrative Inspections
Allno asserts that the provisions of the Ordinance permitting war-
rantless administrative searches of adult businesses within normal
business hours violates their Fourth Amendment rights. We disagree.
A broad administrative search of a business will not violate the
Fourth Amendment when: (1) there is a substantial government inter-
est that informs the regulatory scheme pursuant to which the inspec-
tion is made; (2) the warrantless inspection is necessary to further the
regulatory scheme; and (3) the "statute’s inspection program, in terms
of the certainty and regularity of its application, [ ] provide[s] a con-
stitutionally adequate substitute for a warrant." New York v. Burger,
482 U.S. 691, 703 (1987). Allno does not contest that the County pos-
sesses a significant interest in regulating businesses which sell adult
products. See, e.g., D.G. Restaurants, 953 F.2d at 144-46; Hickerson,
146 F.3d at 104-06. And inspection of these businesses is necessary
to regulate and enforce the 20 percent limit on adult products dis-
played or stocked by businesses located outside the MH zone. Finally,
the Ordinance, by its very terms, puts the businesses on notice that the
County may, from time to time, inspect their facilities to ensure com-
pliance with the 20 percent limit. Thus, all of the Burger requirements
are satisfied.
Of course, with respect to adult businesses located within the MH
zone, the County has not demonstrated a substantial government
interest in conducting inspections of their merchandise, for these busi-
nesses may devote their entire floor space and stock to adult products.
Similarly, the setback requirements to which these businesses are sub-
ject may be verified simply by observing their location on a map.
However, we need not decide the constitutionality of the warrantless
10 ALLNO ENTERPRISES v. BALTIMORE COUNTY
search provision of the Ordinance as it applies to businesses located
within the MH zone, for Allno lacks standing to make such a chal-
lenge. Cf. Lawline v. American Bar Ass’n., 956 F.2d 1378, 1386 (7th
Cir. 1992) (as-applied challenge is improper when a law has not yet
been applied to the plaintiffs). This is so because Appellants do not
operate an adult business within the MH zone. While a plaintiff need
not wait to be inspected to challenge the Ordinance, there must at
least be a credible threat of inspection. Cf. Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289 (1979) (to establish standing, a
plaintiff must be able to show, at a minimum, an intention to engage
in conduct and that there is a credible threat of prosecution); Ameri-
can Charities v. Pinellas County, 221 F.3d 1211 (11th Cir. 2000)
(same). Obviously, Allno cannot claim a threat of inspection when it
is not even located in the area to be inspected.
Therefore we affirm the grant of summary judgment in favor of the
County with respect to the constitutionality of the administrative
searches with respect only to adult businesses located outside the MH
zone. We expressly do not decide the constitutionality of executing
administrative searches, pursuant to the Ordinance, of adult busi-
nesses located within the MH zone.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.