Baddock v. Baltimore Cnty.
Baddock v. Baltimore Cnty.
Opinion
*472 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 *473 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 *550 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, *474 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.
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
*475
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
,
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 *476 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
,
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
*552
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.
*477
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
.,
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.
*478
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
,
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
*479
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.
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
,
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
,
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
,
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.
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.
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.
,
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.
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.
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.
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
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).
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."
Reference
- Full Case Name
- Irvin M. BADDOCK, Et Al. v. BALTIMORE COUNTY, Maryland
- Cited By
- 1 case
- Status
- Published