JOHN A. GIBNEY, JR., District Judge.
This matter is before the Court on a motion to dismiss and cross-motions for summary judgment pursuant to Federal Rules of Civil Procedure 12(b)(1) and 56. In this case, the plaintiff, Patricia Moore-King ("Moore-King"), challenges the zoning ordinance, business license tax ordinance, and fortune teller permit ordinance through which Chesterfield County regulates fortune teller businesses. Moore-King alleges that these ordinances violate her rights to free exercise of religion, free speech, and equal protection under the United States Constitution, and her rights under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The County has moved to dismiss the "as applied challenges" set forth in the Complaint, contending that those claims are not ripe for judicial determination. Both parties have moved for summary judgment.
A motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction on the grounds that the matter is not ripe for judicial consideration attacks a complaint by asserting that it fails to allege facts upon which jurisdiction can be based.
The Court will apply the standard utilized in motions brought under Rule 12(b)(6) in considering the allegations in the Complaint. A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; it does not resolve contested factual issues. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992). In considering the motion, a court must accept all factual allegations in the complaint as true and must draw all reasonable inferences in favor of the plaintiff. See Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999); Warner v. Buck Creek Nursery, Inc., 149 F.Supp.2d 246, 254-55 (W.D.Va.2001). To survive a motion to dismiss, a complaint must contain sufficient factual matter which, accepted as true, "state[s] a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This plausibility standard requires a plaintiff to demonstrate more than "a sheer possibility that a defendant has acted unlawfully." Id. It requires the plaintiff to articulate facts that, when accepted as true, "show" that the plaintiff has stated a claim entitling him to relief, that is, the "plausibility of `entitlement to relief.'" Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.2009) (quoting Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Thus, the "[fjactual allegations must be enough to raise a right to relief above the speculative level," Twombly, 550 U.S. at 545, 127 S.Ct. 1955, to one that is "plausible on its face," id. at 570, 127 S.Ct. 1955, rather than merely "conceivable." Id. Although the Court must accept as true all well-pleaded factual allegations, the same is not true for legal conclusions. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949.
In considering such a motion, a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the
Under Rule 56(a), summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). The relevant inquiry in a summary judgment analysis is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing a motion for summary judgment, the Court must view the facts in the light most favorable to the non-moving party. Id. at 255, 106 S.Ct. 2505. In reviewing cross motions for summary judgment, as in the immediate case, the Court must review each motion separately on its own merits "`to determine whether either of the parties deserves judgment as a matter of law.'" Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Philip Morris, Inc. v. Harshbarger, 122 F.3d 58, 62 n. 4 (1st Cir.1997)).
Summary judgment must be granted if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat an otherwise properly supported motion for summary judgment, the nonmoving party "must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, the mere existence of a scintilla of evidence, or the appearance of some metaphysical doubt concerning a material fact." Lewis v. City of Va. Beach Sheriff's Office, 409 F.Supp.2d 696, 704 (E.D.Va.2006) (internal quotation marks and citations omitted). Of course, the Court cannot weigh the evidence or make credibility determinations in its summary judgment analysis. Williams v. Staples, Inc., 372 F.3d 662, 667 (4th Cir.2004).
There are no material facts in dispute, therefore summary judgment is appropriate in this matter.
The Court has concluded that the following represent the salient facts for purposes of resolving the motion to dismiss and the motions for summary judgment.
Moore-King is a self-described "spiritual counselor" seeking relief from several County ordinances that allegedly violate her First and Fourteenth Amendment rights under the Constitution as well as her statutory rights under RLUIPA. Moore-King has named the County; James J.L. Stegmaier, County Administrator; Joseph A. Horbal, County Commissioner of Revenue; and Thierry G. Dupuis, County Chief of Police as defendants.
Moore-King conducts business under the trade name "Psychic Sophie." She provides various personal services, the legitimacy of which cannot be established by objective means. These include Tarot card readings, psychic and clairvoyant readings, and answering strangers' personal questions in person, over the phone, and via email. Psychic Sophie charges fees for all her services. For personal or telephonic readings, she charges by the quarter hour; for email questions, she charges by the question. Customers may make appointments to meet Moore-King by providing their email addresses, phone
Moore-King began offering her psychic services in March 2009 from a small office she leased at 1241 Mall Drive, located in Chesterfield County. Her office complex contains numerous other businesses, including licensed mental health professionals.
In her work, Psychic Sophie incorporates lessons learned from the fields of astrology, "psychic/clairvoyant/medium development," and energy healing. She describes her work as "spiritual counseling," asserting that she "brings forth the inherent wisdom of the God-self within each of her client's souls in order to help them achieve spiritual enlightenment." (2d Am. Compl. ¶ 7.) According to her Complaint, Moore-King "does not limit her religious beliefs to any one particular form of religion," but rather embraces an assortment of Christian, Buddhist, Hindu, and New Age traditions, with a particular emphasis on the New Age religious movement. (Id. ¶¶ 8-9.) On her website, however, Psychic Sophie asserts that she "does not follow particular religions or practices." Moore-King practices Reiki, which involves "touching with the hands" that supposedly "produces beneficial effects by strengthening and normalizing certain vital energy fields held to exist within the body." Merriam-Webster On-line Dictionary, http:// www.merriam-webster.com/dictionary/reiki (last visited Sept. 30, 2011). She is also an ordained minister of the Universal Life Church.
Moore-King has "practiced" for seventeen years, is now a veritable expert on psychic matters, and has published two books on Tarot card reading. (2d Am. Compl. ¶ 20.) Her "clients are typically seeking information and advice concerning personal relationships . . . or personal or business finances." (Id. ¶ 22.)
In her Complaint, Psychic Sophie describes her personal experiences with the County framework for regulating fortune tellers. Around July 11, 2009, Moore-King received a call from a person identifying him- or herself only as a "County official," informing Moore-King that she needed to obtain a business license. (Id. ¶ 74.) Moore-King registered with the Commissioner of Revenue on August 6, 2009; she estimated that her 2009 revenue would be less than $10,000. The County had classified her as a fortune teller for purposes of its licensing ordinance. Moore-King discussed her work and her religious beliefs with employees of the Commissioner's office, explaining why she does not consider herself a fortune teller, to no avail.
Shortly after this meeting, Moore-King received a "Notice of Official Action" from the County Commissioner of Revenue, informing Moore-King that, as a fortune teller, she owed the County a business license tax of $343.75. (Id. ¶ 82.) Upon receipt of this notice, Moore-King discontinued her counseling services on August 14, 2009, until the entry of a consent order by this Court on January 13, 2010, whereby the County agreed to hold off on enforcing its ordinance and Moore-King agreed to place the $343.75 in escrow pending the Court's ruling on the dispositive motions before the Court.
The parties agree on the ordinances that apply to Moore-King. The County Code defines a "fortune teller" as:
Code § 6-1. Although the plaintiff contends that she is not a fortune teller, the parties agree that she falls within the County's definition of a "fortune teller."
Psychic Sophie challenges three provisions of the Chesterfield County Code ("Code"), which work together to regulate the conduct of those engaged in the fortune teller business. Specifically, Moore-King challenges (1) the conditional use ordinance of Code section 15-246, (2) the fortune teller permit ordinance of Code section 6-7, and (3) the business license tax ordinance of Code section 6-44.
First, Moore-King discusses the zoning issues that pertain to her spiritual counseling business. The office space that Moore-King rents is zoned C-3, which allows "community-scale commercial development to include shopping centers which serve community-wide trade areas and promote public convenience and accessibility. Toward this end, mixed use projects containing commercial, office and residential townhouse/residential multifamily uses should be encouraged." Code § 19-157. Moore-King notes that other businesses adjoining her office space include psychologists, marriage counselors, and a financial service company. (2d Am. Compl. ¶ 99.) The County Code does not permit fortune teller businesses within C-3 zones. Rather, fortune teller businesses may operate in certain industrial and agricultural zones, and C-5 zones, which are "generally [] located along arterials or near industrial areas," and include businesses such as trailer parks, lumber yards, towing lots, and public utility service buildings. Code §§ 19-171, 19-173. In these zones, fortune telling businesses are allowed through a conditional use permit, which must be separately approved by the County Director of Planning. Id. § 19-175(j). If approved by the planning director, the business must next be approved by the Planning Commission and then the Board of Supervisors. Since Moore-King is in a C-3 zone, she would either need to move her office to a different zone or have the County change the zoning for her current site. In either event, she would also need to apply for a conditional use permit.
Under the County zoning law, the plaintiff lacks standing either to seek a change to zoning or to apply for a conditional use permit. Only the owner of the property may seek rezoning or a permit. Id. § 19-24(a)(1). Since Psychic Sophie is only a tenant, she cannot seek the necessary zoning changes and approvals to operate her business.
Second, Moore-King challenges several subparts of section 6-7, which subjects some types of businesses—"bondsman, fortune-teller, massage therapist, massage clinic operator, nightclub operator, taxi driver or solicitor, or adult business operator"—to obtain a permit issued by the chief of police. The permit application requires the name of an applicant, certain
Third, Moore-King challenges the licensing fees and taxes that the County imposes on fortune tellers. For most businesses, the licensing fee is determined by gross revenue. If a business generates less than $10,000 in revenues, no fee is imposed. If a business generates more than $10,000 but less than $200,000, a nominal fee of $10 is imposed. Code § 6-4.
Based upon the factual allegations and the ordinances above, Psychic Sophie sets forth seven causes of action, the first three of which are constitutional, and the latter four of which allege statutory violations of RLUIPA.
Count One. Moore-King alleges that the County violated her right to free speech under the First and Fourteenth Amendments because the County's business licensing requirements and zoning regulations
Count Two. The plaintiff alleges that the County violated her right to freely exercise her religion under the First and Fourteenth Amendments. She asserts both facial and as applied challenges to the same Code provisions as in Count One.
Count Three. Moore-King alleges that the ordinance scheme, both on its face and as applied to her, violate the Equal Protection Clause of the Fourteenth Amendment
Count Four. Moore-King contends that the County violated 42 U.S.C. § 2000cc(a) by prohibiting Moore-King and other fortune tellers from operating within her office building or at other locations in the C-3 zone despite the absence of any compelling governmental interest. Each of the RLUIPA claims (Counts Four through Seven) raises a facial challenge and an as applied challenge to (1) the conditional use permit scheme that prohibits usage of land except in conformity with district regulations; (2) the C-3 zoning scheme; and (3) Code § 15-246, which establishes the fortune teller permit process.
Count Five. Moore-King contends that the County's land use scheme, which treats fortune tellers on less than equal terms as nonreligious assembly or institutional uses, violates 42 U.S.C. § 2000cc(b)(1).
Count Six. Moore-King claims that the County violated 42 U.S.C. § 2000cc(b)(2) by discriminating against the land use of spiritual counselors that fall within the County's definition of fortune teller, based on their religious beliefs and practices.
Count Seven. Moore-King claims that the County has imposed land use regulations that unreasonably limit fortune tellers within the County, in violation of 42 U.S.C. § 2000cc(b)(3)(B).
The plaintiff says that County Administrator Stegmaier, Commissioner of Revenue Horbal, and Police Chief Dupuis are sued in their official capacities, as employees of the County.
The County contends that Moore-King's challenges to the business license tax ordinance, fortune teller permit ordinance, and zoning ordinance as they apply to her
For a case to be ripe for judicial determination, the Court must consider the "`fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.'" Arc of Virginia, Inc. v. Kaine, No. 3:09cv686, 2009 WL 4884533, at *5, 2009 U.S. Dist. LEXIS 117677, at *16 (E.D.Va. Dec. 16, 2009) (quoting Texas v. United States, 523 U.S. 296, 300-01, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)). In the land-use context, the first prong takes the form of requiring a final administrative decision.
The case before the Court is distinguishable from the Williamson County line of cases. In those cases, and the others cited by the County in its memorandum in support of its motion to dismiss,
To support its decision on this point, the Supreme Court quoted from two of its prior decisions: "`If [the property owners] were to seek administrative relief under these procedures, a mutually acceptable solution might well be reached with regard
In Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001), an inverse condemnation action, the Supreme Court explained the "final decision requirement" of Williamson County:
Id. at 620-21, 121 S.Ct. 2448; see also Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 349 (2d Cir.2005) ("[A] property owner need not pursue such applications when a zoning agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied." (citations omitted)).
The Court is not persuaded by the County's argument. Both parties recognize that Moore-King falls under the category of "fortune teller" and "occult sciences" in the Chesterfield County Code. (2d Am. Compl. ¶¶ 30-31; Defs.' Supp. Mem. 3.) Fortune teller businesses are not permitted by right or permitted with certain restrictions within the County. Fortune teller businesses are permitted as a conditional use in the C-5, 1-2, 1-3, and A zoning districts. Code §§ 19-175, 19-190, 19-197, 19-196, 19-126. Both parties recognize that Moore-King's business is in a C-3 zone, where fortune telling businesses are simply not allowed. The plaintiff lacks standing to seek a zoning change. Under § 19-24(a)(1), only "the property owner, contract purchaser with the property owner's written consent, or the property owner's agent, with the property owner's written consent" may apply for a modification of the zoning requirements. Moore-King leases the property she uses as her business, and she alleges that the property owner is unwilling to apply for rezoning.
Use of the County's zoning procedures simply cannot change Psychic Sophie's fate. For Moore-King to go through the steps of applying for a conditional use
The uncertainty in the zoning cases dismissed on ripeness grounds is not present here. The Court therefore finds that Moore-King's claims are ripe for judicial determination.
At the outset, it is important to recognize that the County's ordinances do not ban Psychic Sophie's business of providing other-worldly advice to her customers. The ordinances do not dictate what kind of advice the plaintiff provides to her customers. The ordinances do not limit her ability to discuss or promote her psychic powers in public forums. The ordinances do not limit her ability to advertise. The ordinances do not limit her ability to take her services to parties in private homes.
Rather, the case is about de minimis regulation of her business. The County's zoning laws control in a very general way where she may locate her business. Other ordinances also require her to pay a fee and get a license. These requirements are common to all businesses in Virginia and, most likely, in the entire nation.
The County argues that the ordinances do not regulate speech at all. This position, however, is incorrect. Every licensure and zoning ordinance imposes some kind of minimal restriction on speech. Here, the plaintiff cannot open a business in certain zoning districts to engage in the speech of advising her customers. A person who cannot pay $300 for a license or cannot obtain a permit from the police chief simply cannot engage in the speech of providing psychic advice.
In some respect, every business regulation affects speech, because every business involves some kind of verbal communication. The speech is not simply an invitation to become a customer, but rather is part of the product the business provides. For instance, a shoe salesman tells his customers that they should take care to support their arches; a mechanic spreads the message that car owners should regularly change their oil; a physician tells his patients to lower their cholesterol; "a lawyer's stock in trade is his time and advice."
But this incidental effect on speech does not violate the right to free speech. The fact that a course of activity—the psychic business ordinance scheme in this case—is carried out by verbal conduct is insufficient to make a free speech claim. See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447,
One type of reasonable regulation is that the government can absolutely prohibit speech that is inherently deceptive. The weight of authority holds that fortune telling is inherently deceptive. See, e.g., Ballard v. Walker, 772 F.Supp. 1335, 1341 (E.D.N.Y.1991); Mitchell v. City of Birmingham, 222 Ala. 389, 389, 133 So. 13, 14 (1931); Bridewell v. City of Bessemer, 35 Ala.App. 337, 339-40, 46 So.2d 568, 570-71 (1950); White v. Adams, 233 Ark. 241, 242-43, 343 S.W.2d 793, 793-94 (1961); Rodgers v. Southland Racing Corp., 247 Ark. 1115, 1117, 450 S.W.2d 3, 5 (Ark. 1970). Contra Nefedro v. Montgomery County, 414 Md. 585, 600, 996 A.2d 850, 858 (2010).
The undisputed evidence in this case is that Psychic Sophie's business is deceptive. She predicts what the future holds. For instance, the plaintiff answers questions about business prospects. One person asked her, "Will my business turn around in 2010? I've already written off 2009." She responded:
(Defs.' Opp'n Mem., Ex. A.) The plaintiffs claim to such future knowledge is quintessential deception.
Her counseling ventures are no less deceptive. For instance, she provides personal counseling based on Tarot cards. She also gives psychic advice, in person or by email. Her practices are based in part on her knowledge of astrology. If these facts are not enough to discount the validity of her practices, one need only consider additionally that, for a fee, she will come to parties and entertain guest with her psychic services. To the extent she attempts to predict the future or to provide counseling or other services, her conduct is simply a fraud. Many people will accept her act as an amusement, suitable for party entertainment. The gullible, the infirm, and the weak, however, may believe that she actually provides valuable psychological or business insights.
Deceptive speech enjoys no First Amendment protection. Cent. Hudson Gas & Elec. v. Pub. Serv. Comm'n, 447 U.S. 557, 563, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). "The government may ban forms of communication more likely to deceive the public than to inform it. . . ." Id. at 563, 100 S.Ct. 2343 (citations omitted). Since the County can prohibit fortune telling altogether as deceptive speech, clearly the County may regulate fortune telling through zoning and licensure rules without causing any First Amendment concerns.
Even assuming that Moore-King's speech is not inherently deceptive,
The Supreme Court has set forth a four step test to determine the validity of regulation of commercial speech:
Cent. Hudson Gas, 447 U.S. at 566, 100 S.Ct. 2343. Applying the four part test here, the regulation does not violate the First Amendment.
The first two prongs of the test are addressed readily. First, although, as discussed above, the plaintiffs conduct is inherently deceptive, for the purpose of discussion here, the Court will assume it is not deceptive and, therefore, enjoys some level of First Amendment protection. Second, the government has a substantial interest in regulating the business. The kinds of services the plaintiff provides are a fertile ground for fraud and abuse. Weak or unwary citizens can easily be suckered in to pay vast sums for services of questionable value.
Third, the Court must examine whether the regulation directly and materially advances the government interest. The focus here is the relationship between the County's interests and the regulation at issue. "This relationship, or link, need not be proven by empirical evidence; rather, it may be supported by history, consensus, and simple common sense. . . . However, the link is insufficient if it is irrational, contrary to specific data, or rooted in speculation or conjecture." Educ. Media Co. v. Swecker, 602 F.3d 583, 589 (4th Cir. 2010) (citation omitted). The County's regulation of fortune telling is clearly related to the County's legitimate interests.
The zoning requirement places fortune tellers in zones generally removed from office complexes and similar medical facilities. By doing so, the County separates fortune tellers from most legitimate licensed professional counselors, psychologists, physicians, and the like, who are most frequently found in office complexes.
Moreover, all zoning involves line drawing, and someone is usually displeased with the location of the line. Yet, it must occur. As discussed above, no one could legitimately contend that a County cannot ban stores, garages, and professional offices in residential areas. Here, the county has decided, for aesthetic and other reasons, to separate fortune tellers from other businesses. This is the essence of zoning. The plaintiff cannot claim that her business is relegated to the least desirable areas of the County; over fifty percent of the county has zoning that permits fortune tellers. The County's zoning reasonably regulates fortune tellers, while allowing some leeway for the practice to continue.
By the same token, the licensure and permit requirements serve a legitimate interest. The police chief issues a permit to fortune tellers after getting identifying information and running a background check, including a criminal records check. No permit is issued if the applicant is a convicted felon or has been convicted of a crime materially affecting his ability to conduct fortune telling. The plaintiff says that the ordinance's language grants too much discretion to the police chief to determine what offenses are "material" to the ability to tell fortunes. Virginia law, however, contains hundreds of crimes, and the County need not list them all. Many of Virginia's occupational regulations have similar requirements, which have for years provided adequate guidance to regulatory officials. E.g., Va. Code § 54.1-2709 (requiring dentists to be "of good moral character"); id. § 54.1-2813 (giving Board of Funeral Directors discretion to deny a license to any individual with a criminal proceeding pending against him); id. § 54.1-2930 (requiring physicians to be of "good moral character"); id. § 54.1-404 (allowing Board of Architects to restricting architects from associating with anyone engaged in "illegal or dishonest activities"); id. § 54.1-831 (authorizing Department of Professional Occupations to protect the public against "incompetent, unqualified, unscrupulous, or unfit" boxing promoters). The police chief, like the other regulators of professions, can determine what kinds of criminal activity are likely to lead to unscrupulous actions by fortune tellers.
Similarly, the license fee of $300 is related to the purposes of the regulatory scheme. At a minimum, it helps to offset the costs of granting permits and policing fortune telling establishments. It also insures that someone entering the field has more than a passing interest in psychic phenomena and is, therefore, less likely to defraud the public.
In sum, the ordinances meet the third prong of the Central Hudson test by having a demonstrable relationship with legitimate government interests.
The fourth prong of the Central Hudson test is that the commercial speech restrictions must be narrowly drawn. "The restrictions do not need to be the least restrictive means possible, but they do need to have a reasonable fit with the government's interest—a fit that represents not necessarily the single best disposition but one whose scope is in proportion
In short, to the extent the rules regulate commercial speech, the County has struck a reasonable course, consistent with the First Amendment.
Further, the Court also finds that, even if one considers Psychic Sophie's conduct not to be commercial speech, the ordinances are still acceptable under First Amendment analysis. All speech is "subject to reasonable time, place, and manner restrictions." Heffron, 452 U.S. at 647, 101 S.Ct. 2559. "So long as protected materials continue to be fully available, and public access is not substantially impaired, regulation of time, place, and manner does not violate the first amendment." Wall Distribs. v. City of Newport News, 782 F.2d 1165, 1168 n. 5 (4th Cir.1986) (citation omitted). As discussed above in the analysis of commercial speech, the County's ordinances balance the need to protect the public from unscrupulous charlatans with the opportunity for fortune tellers to practice their profession.
Moore-King's free exercise claims and her RLUIPA claims have threshold requirements that Moore-King's business be a religious exercise. The Court finds that Psychic Sophie is not engaged in religious exercise, within either the meaning of the free exercise clause or within the meaning of RLUIPA. Accordingly, the Court will grant judgment for the County on these claims.
According to the Supreme Court, "[o]nly beliefs rooted in religion are protected by the Free Exercise Clause, which by its terms, gives special protection to the exercise of religion." Thomas v. Review Bd. of Ind., 450 U.S. 707, 713, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (citations omitted). For purposes of the free exercise clause, in determining what comprises a religious exercise, courts are to consider whether the faith "`occupies a place in the lives of its members `parallel to that filled by the orthodox belief in God' in religions more widely accepted in the United States.'" Morrison v. Garraghty, 239 F.3d 648, 658-59 (4th Cir.2001) (quoting Dettmer v. Landon, 799 F.2d 929, 931 (4th Cir.1986)) (internal quotation marks omitted).
The plaintiffs religious beliefs "`need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection[,]'. . . [n]or must religious observations be uniform to merit First Amendment protection." Id. (citations and quotation marks omitted). "In evaluating whether a belief is religious in nature, the courts "must take care [to] avoid any predisposition toward conventional religions so that unfamiliar faiths are not branded mere secular beliefs."" Mitchell v. Angelone, 82 F.Supp.2d 485, 490 (E.D.Va.1999) (quotation omitted). For example, in Dettmer v. Landon, 799 F.2d at 931-32, the Fourth Circuit held that the Church of Wicca occupies
In contrast, in Harrison v. Watts, 609 F.Supp.2d 561 (E.D.Va.2009), this Court rejected the plaintiffs Free Exercise claim because he had pulled an about face in describing his affinity group, the "Five Percenters." In the initial complaint, the plaintiff described the group's doctrine as a "way of life," which the Court found was not "religious" for Free Exercise purposes. On a reconsideration motion, the plaintiff phrased it as the "practice and devotion to Allah's teachings." In finding that the plaintiff was not engaged in the exercise of religion, the Court noted that the plaintiff had repeatedly claimed his practice was not a religion. Id. at 572-73.
In this case, Psychic Sophie states on her website: "I am very spiritual in nature, yet I do not follow particular religions or practices, and `organized' anythings are not for me. I pretty much go with my own inner flow, and that seems to work best." (emphasis added). Although that statement leaves room for interpretation, one thing seems clear—Moore-King follows no religion. It is not as if she claims the mantle of Buddhism, but engages in practices in the name of Buddhism that no other Buddhist believes central to the religion. It is as if she is Lutheran one day, Buddhist the next, and an ad hoc spiritualist the day following— only, on any given day, she may be all three at once, or none at all.
In the sense that religion embodies a search for the unexplained, Moore-King could claim similarities to a church minister who helps members of a congregation grapple with the mysteries of our earthly and spiritual existence. But she does not. She expressly disavows that her beliefs are rooted in any religion, seeming to claim more that they are rooted in all religions, as well as a variety of secular pursuits. For example, her use of Tarot cards could qualify as religious exercise if she were a practicing Wiccan. See, e.g., Singson v. Norris, 553 F.3d 660 (8th Cir.2009); Kay v. Bemis, 500 F.3d 1214 (10th Cir.2007). But Moore-King does not, however, claim to read Tarot cards as part of the exercise of the Wiccan religion or any other religion.
Indeed, the sheer number and variety of interests that Moore-King invokes cast serious doubts upon her claim to religion:
(Defs.' Supp. Mem., Ex. A-1.) Such a panoramic potpourri of spiritual and secular interests does not appear to add up to a religion that can be manifested in practice.
In addition, Moore-King's fee for service model does not conform to common religious practices within the mainstream. Religious experience is not typically thought of as purchased chunks at a time. There appears to be no case law on this issue, and the Court finds this model— although not dispositive—counsels against a finding that Moore-King is engaged in a religious exercise. If Moore-King's practices are indeed rooted in religious belief, it appears that she holds nothing sacred. She rents herself out as an "entertainment psychic" for parties. Most strikingly, Moore-King alleges that she has the ability to spiritually connect with people over the internet based on non-real-time communications, such that for $25 per question, she can dispense spiritual advice via email.
Finally, Moore-King's "counseling" service stems from her "own inner flow." However sincere that belief may be, the Court cannot find that this counseling is rooted in religion.
Simply calling one's practices a religion does not make those practices part of a religion. Psychic Sophie could call her office the Church of Mike Mussina, but that does not make it a religion.
Because the Court finds that Moore-King is not engaged in a religious exercise, the Court need not consider the remaining elements of a free exercise claim—whether Moore-King's professed belief is sincerely held, and whether the County's actions substantially burdened her religious freedom. See Mitchell, 82 F.Supp.2d at 490.
Counts 4, 5, 6, and 7 of the Complaint purport to state claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Congress enacted RLUIPA in part to protect religious assemblies and their adherents from zoning laws that impose a substantial burden on the free exercise of religion. 42 U.S.C. §§ 2000cc, et seq. The basis of a RLUIPA claim is as follows:
Id. § 2000cc(a)(1).
The sine qua non of any RLUIPA claim is an adverse effect on the practice of a religion. For the same reasons that the Court finds that Moore-King has not established that she is engaged in religious exercise for purposes of the Free Exercise Clause, the Court finds that she has not established that she is engaged in religious exercise for purposes of RLUIPA.
The Court will enter judgment for the County on the RLUIPA claims comprising counts 4 thought 7 of the Complaint.
Under the Equal Protection Clause of the Fourteenth Amendment, "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Morrison, 239 F.3d at 653-54 (quoting U.S. Const. Amend. 14, § 1). The Equal Protection Clause prevents governmental decision makers from treating similarly situated people differently. Id. at 654 (citations omitted). To establish an Equal Protection claim, a plaintiff must first show that she has been treated differently from others with whom she is similarly situated and that this differential treatment was the result of intentional or purposeful discrimination. Id.; see also Mitchell, 82 F.Supp.2d at 491 (citation omitted) (setting forth same factors). A reviewing court will then examine the intentional or purposeful discrimination under the appropriate level of scrutiny.
Unless the classification is based on a suspect class (namely race, alienage, national origin, religion, or gender) or a fundamental right secured by the Constitution, the state regulation is presumed valid and will be upheld so long as it is rationally related to a legitimate state interest. If a suspect classification or fundamental right is implicated, strict scrutiny is triggered, and the regulation will only pass constitutional muster if it is narrowly tailored to serve a compelling state interest.
Zoning inherently involves some line drawing—classifying businesses according to their purposes is the essence of zoning laws. The issue for the Court is whether Moore-King is similarly situated, as she contends, to others who are treated differently under the zoning laws. Moore-King identifies herself as a member of the class of persons who have been labeled "fortune tellers," and alleges that she has been denied equal protection of the law, based on the exercise of her fundamental rights of free speech and free exercise, as compared to persons similarly situated. Moore-King contends that she is similarly situated to stage actors, spiritual leaders of other faiths, and other office uses. The comparison with stage actors is bogus. There is no likelihood of fooling the public in dramatic productions. As to spiritual leaders of other faiths, at oral argument on the County's motion for summary judgment, the Court questioned whether Moore-King is similarly situated to spiritual leaders of other faiths:
(Tr. 44-45.) The Court went on to highlight some of the differences between traditional religions and Moore-King's purported religion. As to office uses, such as counselors, there is an obvious distinction between professionally trained state-licensed counselors and an unregulated fortune teller who performs Tarot card/psychic readings and serves as the hired entertainment at parties. The rationales discussed above with regard to free speech apply equally here. The county has good reason to treat fortune tellers as it does.
The County is entitled to judgment on Moore-King's Equal Protection claims.
Moore-King also raises an as applied challenge to portions of the Chesterfield County Code that have been repealed. Before section 15-246 was amended during the course of litigation in this case, it required an applicant to obtain a certificate from five residents of Chesterfield County that the fortune teller was a bona fide resident of the County and of good character. (See 2d Am. Compl. ¶¶ 114, 124, 133). Moore-King contends that the County's amendment did not moot her challenge, because she seeks damages for the time period in which she was unable to operate her fortune telling business as a result of her inability to obtain the character references. As Moore-King's fortune telling business has at all times been in a C-3 zone, she has not been allowed to operate her fortune telling business, regardless of whether the character reference requirement applied. Her damages stem from her inability to practice her trade. Even without the character reference requirement, however, she still would not have been able to practice. Here damages, therefore, were unchanged by either the existence or repeal of the language. The Court therefore finds that Moore-King's challenge to the previous version of section 15-246 moot.
For the reasons set forth above, the Court denies the County's motion to dismiss, grants the County's motion for summary judgment, and denies Moore-King's cross-motion for summary judgment.
The Court will enter an appropriate order.
