Opinion
Civil No. CCB-02-2568
April 14, 2004
MEMORANDUM
The defendants in this case, namely, Baltimore County, Maryland, the Baltimore County Department of Permits and Development Management ("Permits Department"), the Office of the Zoning Commissioner of Baltimore County, and the County Council of Baltimore County ("County Council"), have filed a motion for partial summary judgment (docket no. 47). A prior opinion briefly summarized the facts of the case. See A Helping Hand, LLC v. Baltimore County, 295 F. Supp.2d 585, 587-88 (D. Md. 2003).
I have addressed many of the defendants' arguments in another case involving similar allegations and the same defendants. see START, Inc. v. Baltimore County, 295 F. Supp.2d 569
(D. Md. 2003). As in START, there is no reason to dismiss the count asserting violations of Title IV of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12203(b), as the remedies provided by that section duplicate those available under Title II, id. § 12132. see START, 295 F. Supp.2d at 582-84; see also Smith-Berch, Inc. v. Baltimore County, 68 F. Supp.2d 602, 622 n. 21 (D. Md. 1999). My explanation in START as to why the Permits Department and County Council should not be dismissed as defendants is also applicable here, see START, 295 F. Supp.2d at 580-81, as is my discussion of the permitted remedies, id. at 581-82. As in START, the plaintiff's claim for punitive damages is foreclosed by Barnes v. Gorman, 536 U.S. 181, 189-90 (2002), but it would be premature to consider the availability of injunctive remedies. See START, 295 F. Supp.2d at 581-82.
The defendants' concern about increased attorney's fees is not well-served by expending time on litigating this issue before there is any need for its resolution.
In their opening brief, the defendants argued that the Title n claim against all the defendants, including Baltimore County, must be dismissed due to qualified immunity. As the defendants acknowledged in their reply brief, this argument is directly contrary to Owen v. City of Independence, 445 U.S. 622 (1980), which holds that qualified immunity does not apply to municipal entities. see id. at 638. The defendants' effort to distinguish Owen with respect to the County Council, Permits Department, and Zoning Office is unpersuasive, see Alston v. Va. High School League, Inc., 108 F. Supp.2d 543, 547 (W.D. Va. 2000) (noting that qualified immunity is inapplicable where "[n]o individual government official who participates in [an entity] will personally suffer financial strain as a result of [the entity] not having qualified immunity"), as is their suggestion that Helping Hand "forfeited" this argument in its opposition brief.
The only remaining issue of substance is the defendants' argument for dismissal of Helping Hand's due process claim. Again, START provides a framework for the analysis. As I noted in START, the Fourteenth Amendment's due process guarantee applies only if some external source, such as state law, affords a protectible property interest. See id. at 584-85. Whereas the plaintiff in START lacked a "Vested interest" in its intended use of the property under Maryland law, see id. at 585, it appears plausible here — at least on the present, undeveloped record—that Helping Hand "obtain[ed] the requisite permit or occupancy certificate and exercise[d] it to such an extent that `the neighborhood may [have been] advised that the land [was] being devoted to that use,'" id. (quoting Sycamore Realty Co. v. People's Counsel of Baltimore County, 684 A.2d 1331, 1336 (1996) (alterations added)). Once that predicate — the existence of a protectible interest — is granted, Helping Hand's allegations closely parallel those recognized as a potential due process violation in Scott v. Greenville County, 716 F.2d 1409 (4th Cir. 1983), another case referenced in START, see 295 F. Supp.2d at 585. The County Council in this case allegedly "involv[ed] itself in what should have been the ministerial administration of its prior zoning legislation," Scott, 716 F.2d at 1419, and passed legislation "directed" at shutting down Helping Hand's operations, id. at 1420. Because such allegations may establish "a basis for finding either abuse of discretion or caprice" in the allocation of zoning benefits, "a Fourteenth Amendment claim is properly stated" see id. at 1419 (internal quotations and alterations omitted). Accordingly, dismissal of Helping Hand's due process claim is inappropriate at this juncture.
As I indicated in my earlier opinion, Helping Hand alleges that it received the requisite permit and began operation roughly six hours before the County Council passed an ordinance imposing zoning requirements that its site did not satisfy. see Helping Hand, 295 F. Supp.2d at 588. Helping Hand apparently continued to operate for some time, claiming that it was subject to a six-month exemption for clinics in operation at the time of the ordinance's enactment. see id.
Helping Hand claims that Baltimore County officials deliberately stalled its permit application while the County Council prepared a bill to prevent the clinic from opening. see Helping Hand, 295 F. Supp.2d at 588. The plaintiff in START alleged, though Helping Hand has not, that at least one member of the County Council was in contact with officials at the Permits Department during the period when Helping Hand's application was pending. see START, 295 F. Supp.2d at 574.
Further development of the record may, of course, lead to dismissal of Helping Hand's claim at a later stage. In particular, Scott may turn out to be distinguishable here, as it was in Tri-County Paving, Inc. v. Ashe County, 281 F.3d 430, 441 (4th Cir. 2002), on grounds that the ordinance directed at Helping Hand served "rational health and safety concerns." The issue does not warrant further attention at this stage, however, because Helping Hand's parallel ADA claims will be moving forward in any event.
The defendants' motion will be denied
A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby Ordered that:1. the defendants' Motion for Partial Summary Judgment (docket no. 47) shall be DENIED, except that the claim for punitive damages under the ADA shall be DISMISSED;
2. the plaintiff's Motion for Leave to File Surreply Regarding Defendant's Motion for Protective Order (docket no. 52) shall be DENIED; and
The plaintiff has evidently mistitied this filing, as it is clear from the text that the aim is to file a surreply regarding the motion for partial summary judgment.
3. copies of this Order and the accompanying Memorandum shall be sent to counsel of record.