Baddock v. Baltimore Cnty.

Irvin M. Baddock, et al., v. Baltimore County, Maryland, No. 1271, September Term,
2017. Opinion by Zarnoch, J.
LOCAL GOVERNMENTS – CHARTER COUNTIES – LEGISLATIVE
AUTHORITY
Requiring hookah lounges in the County to close at midnight was a valid exercise of
Baltimore County’s police power, regardless of whether the restriction was encompassed
within the Baltimore County Zoning Regulations’ definition of “hookah lounge.”
CONSTITUTIONAL LAW – DUE PROCESS
Requiring hookah lounges in the County to close at midnight was rationally related to
public safety concerns, as well as to public health concerns about exposure to tobacco
smoke, and therefore did not violate due process.
CONSTITUTIONAL LAW – EQUAL PROTECTION
Requiring hookah lounges, but not similar businesses, to close at midnight was not an
arbitrary distinction that violated equal protection.
Circuit Court for Baltimore County
Case No. 03-C-17-000957
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1271
September Term, 2017
______________________________________
IRVIN M. BADDOCK, ET AL.
v.
BALTIMORE COUNTY, MARYLAND
______________________________________
Meredith,
Berger,
Zarnoch, Robert A.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Zarnoch, J.
______________________________________
Filed: November 28, 2018
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.
2018-11-28
10:12-05:00
Suzanne C. Johnson, Acting Clerk
In Alice in Wonderland, the blue caterpillar appeared content to smoke a hookah
by day. Here, we primarily consider whether legislation requiring hookah lounges to
close at midnight violates due process and equal protection guaranteed by the Fourteenth
Amendment to the United States Constitution and Article 24 of the Maryland Declaration
of Rights. Finding no Constitutional or other legal infirmity, we uphold the restriction as
a valid exercise of Baltimore County’s police power.
BACKGROUND & PROCEDURAL HISTORY
In May 2014, the Baltimore County Council passed a bill that requires hookah
lounges in the County to close between midnight and 6:00 a.m. every day. Specifically,
the bill amended the Baltimore County Zoning Regulations (“BCZR”) to include a
definition of “Hookah Lounge” that restricts hookah lounges’ hours of operation. The
definition of “Hookah Lounge,” codified at Article 1, §101.1 of the BCZR, is as follows:
HOOKAH LOUNGE—Any facility, establishment, or location whose
business operation, whether as its primary use or as an ancillary use,
includes the smoking of tobacco or other substances through one or more
hookah pipes (also commonly referred to as a hookah, waterpipe, shisha or
nareghile), including but not limited to establishments known variously as
hookah bars, hookah lounges or hookah cafes. A hookah lounge may only
operate from 6:00 a.m. to 12:00 midnight.
This restriction on hours of operation prompted the corporation that operates the
Towson Nights hookah lounge (“Towson Nights”), along with the landlord of the
Towson Nights premises (collectively, “Appellants”), to challenge the bill on
constitutional and other grounds.
Towson Nights contends that, absent the County ordinance, approximately 90% of
its business would take place between 11:00 p.m. and 2:00 a.m. 1 (Before the bill went
into effect, Towson Nights stayed open until 2:00 a.m. Sunday through Thursday, and
until 3:00 a.m. on Fridays and Saturdays.) Thus, Appellants claim that the restriction on
business hours was tantamount to a cessation of the business’s lawful use, which should
have entitled Towson Nights to an “amortization” period longer than the 45 days given to
comply with the act.2 Appellants further argue: (1) the County’s placement of time
restrictions in a zoning ordinance is ultra vires; (2) the requirement to close at midnight
violates substantive due process; and (3) singling out hookah lounges, but not similar
businesses, violates equal protection.
1
Towson Nights maintains that it has all necessary business permits, including a
valid trader’s license from the State authorizing the sale of tobacco products.
2
The Court of Appeals has explained that the concept of amortization applies when
a new zoning ordinance prohibits a property’s then-lawful use: “[a] property owner
establishes a non-conforming use if . . . the property was being used in a then-lawful
manner before, and at the time of, the adoption of a new zoning ordinance which purports
to prohibit the use on the property. Such a property owner has a vested constitutional
right to continue the prohibited use, subject to local ordinances that may prohibit
‘extension’ of the use and seek to reduce the use to conformance with the newer zoning
through an ‘amortization’ or ‘abandonment’ scheme.” County Council of Prince
George’s County v. Zimmer Dev. Co., 444 Md. 490, 513 n. 16 (2015) (Internal citation
omitted).
Section 2 of the Baltimore County ordinance states: “. . . a hookah lounge or vapor
lounge lawfully in existence on or before the effective date of this act shall comply with
the operating hours requirements of this act not more than 45 days after the effective
date.” As discussed further below, the County’s requirement that hookah lounges close
at midnight does not constitute a prohibition of any property’s use as a hookah lounge,
and therefore the concept of amortization is inapplicable here.
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The bill’s constitutionality was first upheld by an administrative law judge, and
then, upon a de novo appeal, by the Board of Appeals of Baltimore County.3 The Circuit
Court for Baltimore County affirmed the Board’s decision. Appellants timely appealed.
DISCUSSION
I. Restricting Hookah Lounges’ Hours of Operation Was an Exercise of the
County’s Police Power.
Contrary to Appellants’ position, Baltimore County did not act ultra vires by
enacting time restrictions in a zoning regulation. Here, the provision restricting hours of
operation is an exercise of the County’s police power and not a zoning law, regardless of
whether the restriction is encompassed within the BCZR definition of “hookah lounge.”
See Piscatelli v. Bd. of Liquor License Comm’rs, 378 Md. 623, 639 (2003) (expressly
holding that an act by the General Assembly requiring certain liquor licensees in
Baltimore City to cease operations at 2:00 a.m. was “not a zoning law”); id. (“Simply
because an enactment . . . affects the activities which are otherwise allowed or disallowed
under local zoning regulations, does not make the [] enactment a ‘zoning law.’”); see
also, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 564 (2012) (A
legislature’s choice of label does not control whether a provision falls within the
legislature’s constitutional power); Shaarei Tfiloh Congregation v. Mayor and City
Council of Balt., 237 Md. App. 102, 137 (2018) (“[I]n evaluating whether a development
fee is a regulatory charge or a tax, the purpose of the enactment governs rather than the
3
Appellants had earlier filed a Complaint for Declaratory Relief in the Circuit Court
for Baltimore County that was dismissed for failure to exhaust administrative remedies.
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legislative label.”) (Internal quotation marks omitted) (quoting E. Diversified Props., Inc.
v. Montgomery County, 319 Md. 45, 53 (1990)).
Elsewhere in its ordinance, the Baltimore County Council generally authorized
hookah lounges as a permitted use.4 The partial restriction on hours of operation
contained within the definition of “hookah lounge”—bearing all the hallmarks of
traditional police power legislation—does not affect whether any particular site within
Baltimore County may or may not be operated as a hookah lounge, and is not a zoning
law. For this same reason, Appellants’ amortization claim is inapplicable: the
requirement to close at midnight does not prohibit use as a hookah lounge, and therefore
does not render Towson Nights a nonconforming use.5 Instead, our inquiry hinges on
whether requiring hookah lounges to close at midnight is an otherwise valid exercise of
the County’s police power.
“The power of a political subdivision of this State to enact laws depends on the
extent to which the General Assembly has delegated to it its legislative powers which are
plenary, except as limited by constitutional provisions.” Montgomery Citizens League v.
Greenhalgh, 253 Md. 151, 158 (1969) (Internal quotation omitted). As a charter county,
4
As codified at Article 2, §230.1 of BCZR, the bill added “Hookah Lounge” to the
list of Business, Local (B.L.) Zone permitted uses.
5
Because the bill does not transform use as a hookah lounge into a nonconforming
use, the question posed by Trip Associates, Inc. v. Mayor and City Council of
Baltimore—whether increasing the frequency of use at a nonconforming use location
constitutes a permissible intensification of use or an improper expansion of use—is
inapposite. See generally 392 Md. 563 (2006).
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Baltimore County received a grant of express powers from the General Assembly. See
id. at 159 (explaining how, pursuant to Article XI-A of the Maryland Constitution, the
General Assembly “provide[s] a grant of express powers for such County or Counties as
may thereafter form a charter”). Accordingly, Baltimore County has the authority to pass
local laws upon all matters covered by its grant of express powers from the General
Assembly. Those express powers specify that, as a charter county, Baltimore County
may “pass any ordinance, resolution, or bylaw not inconsistent with State law that . . .
may aid in maintaining the peace, good government, health, and welfare of the county.”
Md. Code (2013), Local Government Article, § 10-206(a)(2). In short, Baltimore County
has the express power to pass ordinances to protect the public’s health and safety. For
the reasons discussed in greater detail below, the County’s restriction on hookah lounges’
hours of operation falls squarely within this ambit.
II. Requiring Hookah Lounges to Close at Midnight Does Not Violate Due
Process.
Appellants contend that requiring hookah lounges to close at midnight is an
irrational and arbitrary violation of substantive due process as guaranteed by the
Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland
Declaration of Rights.
Economic regulation is valid under the United States Constitution when it “rests
upon some rational basis within the knowledge and experience of the legislators.” United
States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938). Likewise, when determining
whether an ordinance satisfies Article 24 of the Maryland Declaration of Rights, “we ask
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rhetorically whether the legislative enactment, as an exercise of the legislature’s police
power, bears a real and substantial relation to the public health, morals, safety, and
welfare of the citizens of the State or municipality.” Tyler v. City of College Park, 415
Md. 475, 500 (2010). “The rational basis test is highly deferential; it presumes a statute
is constitutional and should be struck down only if the reviewing court concludes that the
Legislature enacted the statute irrationally or interferes with a fundamental right.” DRD
Pool Serv., Inc. v. Freed, 416 Md. 46, 67 (2010). Courts thus “perform a very limited
function” when determining whether an economic regulation pursues legitimate
governmental ends through rational means: a legislative enactment “will not be held void
if there are any considerations relating to the public welfare by which it may be
supported.” Tyler, 415 Md. at 500. “Where there are plausible reasons for the legislative
action, the court’s inquiry is at an end.” Id. at 502.
In attempting to argue that the time restrictions are not rationally related to either
the public’s health or safety, Appellants claim: (1) mere concerns about potential late-
night criminal activity are not a rational justification for the bill; (2) isolated instances of
rowdiness by hookah lounge patrons must be dealt with on a case-by-case basis of
enforcement, rather than through a categorical regulation aimed at all hookah lounges in
the County; and (3) potentially valid health concerns about exposure to tobacco smoke
are not rationally addressed by simply requiring hookah lounges to close at midnight.
We are not persuaded. To the contrary, the County’s regulation is plainly a rational
attempt at protecting the public’s safety and welfare.
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Preventive measures aimed at shielding the public from potential exposure to
criminal activity can be a valid exercise of the police power. See Dawson v. State, 329
Md. 275, 285-86 (1993) (establishment of “preventative” and “prophylactic” 24-hour
drug-free zones around schools was a “reasonable way for the General Assembly to limit
the potential exposure of children to [] activities” such as drug dealing). And here, the
record amply demonstrates reasonable grounds for public safety concerns. In the
executive summary of the bill prepared for Councilmembers by the County’s Legislative
Counsel, the County stated that in a six-month-period prior to the bill’s adoption, there
were 37 arrests and 39 calls for service at various hookah lounges throughout the
County—all occurring after 9:00 p.m.6 The executive summary also observed that police
had received disturbance and loud music calls in connection with hookah lounges
throughout the County, as well as calls connecting hookah lounges to underage drinking,
assault, CDS violations, and handgun violations. Moreover, we note the grim irony that
two separate stabbing incidents occurred outside Appellants’ own hookah lounge after
midnight on the very day that the bill went into effect.
6
According to a 2016 memo from the Legal Resource Center for Public Health
Policy at the University of Maryland School of Law that was included in the record,
police in neighboring Baltimore City had “responded to nearly 1,600 service calls
between January 1 and August 29, 2015 at locations within 250 feet of the City’s 19
hookah bars and lounges. Included among these service calls were more than 120 violent
crime calls.” (Footnotes omitted).
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Additionally, public health concerns about exposure to tobacco smoke rationally
support the County’s regulation of operating hours.7 The County’s executive summary of
the ordinance observed that “[a] typical one-hour-long hookah smoking session involves
inhaling 100-200 times the volume of smoke inhaled from a single cigarette.” According
to one scientific study of hookah lounges in the Baltimore region that was included in the
record, indoor airborne concentrations of particulate matter and carbon monoxide were
not only “markedly elevated in waterpipe cafes,” but “markedly greater than expected
compared with venues allowing cigarette smoking.” Christine M. Torrey, et al.,
Waterpipe Cafes in Baltimore, Maryland: Carbon Monoxide, Particulate Matter, and
Nicotine Exposure, 25(4) J. Exposure Sci. & Envtl Epidemiology 405, 405-10 (2014),
available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4333110/. The study
further found that the mean concentrations of particulate matter measured in the
Baltimore region’s hookah lounges “greatly and consistently exceeded” the EPA and
World Health Organization’s 24-hour ambient air quality standards, and that the overall
average concentration of carbon monoxide was twice the EPA’s 8-hour standard. Id.
Despite hookah’s relatively benign reputation, the scientific literature has linked hookah
use to “health problems including chronic bronchitis, lung cancer, oral cancer, prostate
7
For the purposes of this decision, we need not address how the County’s ordinance
interacts with the prohibitions and exceptions of the Clean Indoor Air Act, Md. Code
(1982, 2009 Repl. Vol.), Health-General Article, §§ 24-504 and 24-505. We simply note
that § 24-510 states: “Nothing in this subtitle shall be construed to preempt a county or
municipal government from enacting and enforcing more stringent measures to reduce
involuntary exposure to environmental tobacco smoke.”
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cancer, heart disease and pregnancy complications similar to those seen with cigarette
smoking. It has also been tied to the hepatitis C virus and herpes from sharing
mouthpieces.” Hookah Is Not Harmless, Experts Say, 29 No. 13 Westlaw J. Tobacco
Industry 6 (2014). In a 2016 memo to the People’s Counsel for Baltimore County that
was included in the record, the Legal Resource Center for Public Health Policy at the
University of Maryland School of Law observed that nearly one in four college
undergraduates use hookah, “surpassing all other tobacco products among this
population,” and at least half of the hookah lounges in Maryland were then “within 2
miles of a college campus.” The 2016 memo further stated that “hookah smoke contains
many of the same harmful components found in cigarette smoke, including nicotine, tar,
and various heavy metals,” and that during a one-hour session a hookah user may inhale
“9 times the amount of carbon monoxide as a single cigarette.”
Before turning to our equal protection analysis, we briefly address a few other
claims raised by Appellants in the context of due process. First, Appellants seem to
suggest that the County’s time restrictions were irrational (or at least, that the County’s
motives were not discernible) because there was no stated purpose for the time
restrictions contained within a preamble to the bill. Such a claim is without merit.
Preambles are “infrequently used” in legislation and are “sometimes desirable”—hardly
required. Wash. Gas Light Co. v. Md. Pub. Serv. Comm’n, 460 Md. 667, 684 (2018)
(quoting Dep’t Leg. Servs., Legislative Drafting Manual 2013, at 152-53 (2012)).
Additionally, Appellants contend that the County’s regulation might actually be a back-
door attempt at the sort of alcohol regulation preempted by the Alcoholic Beverages
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Article. On the one hand, this claim is a little curious for Appellants to make, considering
that Towson Nights no longer allows the consumption of alcohol on its premises. In any
event, the claim is meritless. For the reasons discussed above, the County has valid
health and safety reasons to regulate hookah lounges on the basis of hookah use, and for
other public safety concerns that need not relate to alcohol.
III. Limiting the Restriction to Hookah Lounges Does Not Violate Equal
Protection.
Appellants contend that requiring hookah lounges—but not similar businesses
such as cigar bars, liquor licensed establishments, other “BYOB” establishments that are
not hookah lounges, restaurants, billiard rooms, and convenience stores—to close at
midnight is an arbitrary distinction that violates the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland
Declaration of Rights.
In the context of economic regulation, equal protection “is not a license for courts
to judge the wisdom, fairness, or logic of legislative choices.” Frey v. Comptroller of
Treasury, 422 Md. 111, 177 (2011) (quoting Neifert v. Dep’t of Env’t, 395 Md. 486, 506
(2006)). Legislative bodies are permitted to make commercial classifications that
distinguish between entities; provided a “classification is not purely arbitrary and has a
rational basis, the statute does not violate the Equal Protection Clause.” Frey, 422 Md. at
163 (quoting Governor of Md. v. Exxon Corp., 279 Md. 410, 439 (1977)); see
Lonaconing Trap Club, Inc. v. Md. Dep’t of Env’t, 410 Md. 326, 343 (2009) (A
classification is presumptively constitutional and will not be voided “if there are any
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considerations relating to the public welfare by which it can be supported[.]”) (Internal
citations and quotation marks omitted). Moreover, “[u]nderinclusiveness does not create
an equal protection violation under the rational basis test. The Constitution does not
demand that the Legislature strike at all evils at the same time or in the same way.”
Lonaconing, 410 Md. at 346 (Internal citations and quotation marks omitted). “Unless a
classification trammels fundamental personal rights or is drawn upon inherently suspect
distinctions such as race, religion, or alienage, [Supreme Court] decisions presume the
constitutionality of the statutory discriminations and require only that the classification
challenged be rationally related to a legitimate state interest.” Frey, 422 Md. at 163
(2011) (quoting City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976)) (alteration in
original).
Similarly, equal protection review of economic regulation under Article 24 of the
Maryland Declaration of Rights “is nearly identical to the due process examination. In
such a case, we employ the least exacting and most deferential standard of constitutional
review, namely, rational basis review, under which a legislative classification will pass
constitutional muster so long as it is rationally related to a legitimate governmental
interest.” Tyler, 415 Md. at 501 (Footnote omitted). Under this analysis, a legislative
enactment will be upheld “unless the varying treatment of different groups or persons is
so unrelated to the achievement of any combination of legitimate purposes that the court
may conclude only that the governmental actions were arbitrary or irrational.” Id.
Likewise, a legislative body is “not required by equal protection to attack all aspects of a
problem at the same time; rather, [it] may select one phase of a problem and apply a
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remedy there, neglecting for the moment other phases of the problem.” Id. (Internal
quotation marks and citation omitted).
As described above, legitimate concerns for the public safety and welfare
undergird the County’s requirement that hookah lounges close at midnight. Over a
six-month period prior to the bill’s enactment, Baltimore County police made 37
late-night arrests related to hookah lounges, and police received calls linking hookah
lounges to underage drinking, assault, CDS violations, and handgun violations. To repeat
a few of the public health concerns—significant concentrations of particulate matter and
carbon monoxide have been measured at hookah lounges, and during a one-hour smoking
session a typical hookah user will inhale a volume of smoke equivalent to 100 or more
cigarettes. Hookah lounges seem to have particular appeal to college students, and as of
2016 at least half of the hookah lounges in the State were within two miles of a college
campus. As such, the fact that the County did not require other businesses that offer
late-night diversions to close at midnight does not create an arbitrary distinction that rises
to the level of an equal protection violation—especially considering that there has been
no contention by Appellants that the County drew upon suspect distinctions or trammeled
upon any fundamental rights in differentiating between late-night establishments.
Despite Appellants’ characterization of hookah lounges as basically equivalent to other
sites of late-night diversion (especially cigar bars), we determine that the County’s
distinction is reasonable. See Piscatelli, 378 Md. at 645 (reasonable to conclude that
patrons of one type of establishment offering entertainment “might be more likely to
disturb the public in the early morning hours than the patrons” of similar businesses).
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Furthermore, we reiterate that a concern for the public safety does not require Baltimore
County to “strike at all evils . . . in the same way” by, for instance, requiring all sites that
offer late-night entertainment to close at midnight. Lonaconing, 410 Md. at 346. Indeed,
requiring hookah lounges to close at midnight could very well free up police resources to
address safety concerns that arise at the 2:00 a.m. hour when bars close. The County’s
restriction rationally “advances the legitimate government objective of protecting the
citizenry,” id., and we do not discern an equal protection violation.
In sum, we hold that Baltimore County’s requirement that hookah lounges close at
midnight is a valid exercise of the County’s police power, and neither violates due
process nor equal protection.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANTS.
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