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Does RLUIPA apply to fortune tellers?

Written by Daniel P. Dalton on August 8, 2016 Category: First Amendment, Land Use and Zoning, RLUIPA, Substantial Burden, Unreasonable Limitations

In Patricia Moore-King v. County of Chesterfield, the Court was asked if RLUIPA applies to fortune tellers. The answer is No, at least in the Fourth Circuit.

Patricia Moore-King (“Moore-King” or “Plaintiff”) brought suit against the County of Chesterfield, Virginia (the “County” or “Defendant”) challenging the application of regulations enacted by the County affecting “fortune tellers.” On appeal to the Fourth Circuit, Moore-King asserted violations of her First Amendment rights to free speech and the free exercise of religion, statutory claims under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and allegations that the County’s regulatory treatment of her violated the Equal Protection Clause.

The Ordinance. 

The Chesterfield County Code of Ordinances (the “Code”) defines a “fortune teller” as “any person or establishment engaged in the occupation of occult sciences, including a fortune-teller . . . or who in any other manner claims or pretends to tell fortunes or claims or pretends to disclose mental faculties of individuals for any form of compensation.” The County regulates fortune tellers in four ways. First, every person who has a place of business in the County, including fortune tellers, must acquire a business license. Second, the County requires that a person seeking a business license to practice as a fortune teller must “apply for and obtain a permit from the Chief of Police, or his designee.” Specifically, the permit application must include biographical information about the applicant, fingerprints, and a written authorization to allow the chief of police to conduct a background investigation. Further, the Chief of Police is not to issue a permit if his investigation reveals that:

the applicant has been convicted within the last ten year . . . of a felony or any other crime materially affecting the applicant’s ability to conduct the permitted activity including a crime involving moral turpitude, or has been denied a permit or has had a permit revoked under any [similar] statute or ordinance.

The Code also imposes a license tax of $300.00 on fortune tellers, and fines any person who acts as an unlicensed fortune teller between $50.00 and $500.00 for each such offense. The Code also imposes an annual business license fee for businesses with more than $10,000.00 but less than $200,000.00 in gross receipts. Finally, the County regulates fortune tellers through its zoning ordinances, which allow “occult sciences” as a conditional use within the C-5 General Business District. Those eligible for C-5 under a conditional use permit are also able to operate in the Agricultural (“A”), General Industrial (“I-2”), and Heavy Industrial (“I-3”) zoning districts. The “conditional use” designation is reserved for “those uses which, because of their unique characteristics, cannot be permitted by right in a particular district or districts, without consideration, in each case, of the impact of those uses upon neighboring land and of the public need for the particular use of the particular location.” Between January 1, 2005, and December 31, 2009, the County’s Board of Supervisors approved 115 of the 119 applications for conditional use permits.

The Facts.

In 2008, Moore-King rented an office space in the Community Business (“C-3”) District, seeking to offer services as a psychic and spiritual counselor. Other tenants in this district included clinical psychologists and licensed counselors. On her website, Moore-King described herself as a “very spiritual in nature,” but stated that she did “not follow particular religions or practices,” and that “‘organized’ anything’s [sic] are not for [her].” Moore-King further stated that she draws inspiration from an array of sources including “[s]pirituality, astrology, Reiki, natural healing, meditation, mind-body-soul-spirit-chakra, study, meta-physics in general, new age philosophy, psychology, human behavior, quantum physics, ancient history, philosophy, Kabala/Kabbalah, writing, jewelry making, reading . . . [and] music[.]” She further professed a strong belief in the “words and teachings of Jesus . . . which [she] believe[s] are incorporated into tarot cards” and a belief in “the New Age Movement.” She incorporates these beliefs into the spiritual counseling that she provides to her clients. These “spiritual counseling” sessions involve a psychic reading which consists largely of use of tarot cards in conjunction with her client’s name and astrological sign. Clients often bring Moore-King specific inquiries about their businesses, relationships, and personal matters.

In 2009, the County contacted Moore-King to inform her that she would need to obtain a business license to operate. Moore-King thus sought to register with the County’s Commissioner of Revenue, and learned that the County classified her as a fortune teller under the Code. She then received a letter informing her that she owed the County $343.75, consisting of $300.00 fortune teller license tax, and a penalty and accrued interest for late payment. Moore-King chose not to pay the license tax, and instead challenged the legality of the County’s regulatory scheme.

The lawsuit.

In December 2009, she filed a complaint against the county alleging seven counts under the Constitution and federal statutory law. On September 30, 2011, the district court entered a memorandum opinion and order denying the County’s motion to dismiss, denying Moore-King’s summary judgment motion, and granting summary judgment in favor of the County. The district court held that Moore-King’s business and speech purported to predict future events, which constituted “quintessential deception,” and thus was not entitled to any First Amendment protection.

The district court also concluded that because “verbiage is the product that [Moore-King] sells,” the County justifiably regulated her activities as “commercial speech” subject to lessened First Amendment protection. Further, the court determined that even if Moore-King’s activities were not considered commercial speech, the County’s regulations passed constitutional muster as valid time, place, and manner restrictions because they properly “balance the need to protect the public from unscrupulous charlatans with the opportunity for fortune tellers to practice their profession.

As to Moore-King’s free exercise and RLUIPA claims, the district court found that Moore-King followed no particular religion in large part because she “expressly disavows that her beliefs are rooted in any religion.” Finally, finding no entity or individual similarly situated to but treated differently than Moore-King, the district court determined that the County’s regulation of Moore-King as a fortune-teller did not violate the Equal Protection Clause.

The Appeal.

On appeal, Moore-King first argued that the County’s regulatory scheme for fortune tellers trenches upon her constitutional right to free expression. In response, the County argued that Moore-King’s business constitutes inherently deceptive speech because it involves an attempt to predict the future, and such speech is undeserving of First Amendment protection. Thus, the appellate court was first tasked with deciding whether Moore-King’s spiritual counseling activities warranted protection under the First Amendment’s free speech clause.

The court first noted that the County’s view was adequately supported by case law. . See, e.g., Argello v. City of Lincoln, 143 F.3d 1152, 1153 (8th Cir. 1998); Adams v. City of Alexandria, 878 F.Supp.2d 685, 690-91 (W.D. La. 2012); Nefedro v. Montgomery Cnty., 996 A.2d 850, 858 (Md. 2010); Spiritual Psychic Sci. Church of Truth v. City of Azusa, 703 P.2d 1119, 1126 (Cal. 1985) (“[S]ome persons believe they possess the power to predict what has not yet come to pass. When such persons impart their beliefs to others, they are not acting fraudulently; they are communicating opinions, however dubious, are unquestionably protected by the Constitution.”)

However, the court then considered that if, as the County contended, all predictive speech were inherently deceptive, most religious prophecy, financial prognostication, and medical diagnosis would fall outside of the scope of constitutional protection. Cf. Nefedro, 996 A.2d at 858 (noting that lawyers and journalists may also make statements that turn out not to be true.) “The reality that much professional intercourse depends on predictions about what the future may bring suggests that categorical branding of fortune telling as unworthy of First Amendment protection for that same reason is untenable.” Thus, the court determined that the record did not support the district court’s conclusion that “[t]he undisputed evidence in this case [was] that [Moore-King’s] business is deceptive.” The record reflected no evidence to suggest that Moore-King attempted to deceive her clients. Aspects of her business are clearly identified as for entertainment purposes, and the “Terms/Conditions/Disclaimer” section of her website places of number of qualifications on spiritual and clairvoyant information she purports to provide. (“Sophie does not provide a 100% guarantee, as people, perceptions, and decisions, can fluctuate, and circumstances out of everyone’s control can happen.”) Moreover, the Supreme Court’s recent decision in United States v. Alvarez, 132 S.Ct. 2537 (2012), calls into question the County’s argument that inherently deceptive speech is without First Amendment protection. “Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood.” Id. at 2545; see also id. at 2557 (Alito, J., dissenting) (noting that the plurality opinion “breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest”). Because the County failed to argue that Moore-King’s speech was knowingly or recklessly false, the court could not agree with the County’s position that inherently deceptive speech lacks First Amendment protection.

Having determined that Moore-King’s speech warrants some First Amendment protection, the court then turned to the determination of what is the appropriate level of First Amendment protection afforded to Moore-King. In light of the district court’s decision, the appellate court first considered whether commercial speech or the time, place, manner doctrine supplied the proper analytical framework. However, the court determined that “neither of these doctrines if the perfect fit.”

The parameters of commercial speech are typically defined as that which “does no more than propose a commercial transaction,” Va. State Bd. Of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976), are difficult to identify outside the realm of advertising, see, e.g., City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 419 (1993) (observing “the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category”). Yet “[c]ourts considering fortune teller ordinances have reached no consensus on whether to apply a commercial speech analysis or not.” See, e.g., Argello, 143 F.3d at 1153 (noting fortune telling for compensation consists of both commercial and noncommercial speech). Moreover, the court was unable to identify a case or set of cases applying the time, place, manner doctrine to the regulation of occupation. Rather, the court determined that Moore-King’s case “involve[d] a collision between the power of government to license and regulate those who would pursue a profession or vocation and the rights of freedom of speech . . . guaranteed by the First Amendment,” and thus was more appropriately categorized as professional speech. Lowe v. S.E.C., 472 U.S. 181, 228 (1985) (White, J., concurring).

The relevant inquiry to determine whether to apply the professional speech doctrine is whether the speaker is providing personalized advice in a private setting to a paying client or instead engages in public discussion and commentary. Professional speech analysis applies in the former context—where a speaker “takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client’s individual needs and circumstances,” Accountant’s Soc’y of Va. V. Bowman, 860 F.2d 602, 604 (4th Cir. 1988) (quoting Lowe, 181 U.S. at 232 (White, J., concurring))—but not in the latter. Under the professional speech doctrine, the government can license and regulate those who would provide services to their clients for compensation without running afoul of the First Amendment. Put differently, “[t]he power of government to regulate the profession is not lost whenever the practice of a profession entails speech.” Lowe, 181 U.S. at 228 (White, J., concurring). And a state’s regulation of a profession raises no First Amendment problem where it amounts to “generally applicable licensing provisions” affecting those who practice the profession. Id. at 232. Thus, “[a] statute that governs the practice of an occupation is not unconstitutional as an abridgement of the right to free speech, so long as ‘any inhibition of that right is merely the incidental effect of observing an otherwise legitimate regulation.’” Accountant’s Soc’y of Va., 860 F.2d at 604 (quoting Underhill Assoc. v. Bradshaw, 674 F.2d 293, 296 (4th Cir. 1982)).

The court determined that the County had enacted a generally applicable licensing and regulatory regime for fortune tellers, that is, for anyone who “claims or pretends to disclose mental faculties of individuals for any form of compensation.” Unlike a number of government entities that have imposed outright bans of fortune tellers, the County uniformly requires any individual seeking to open a business as a fortune teller to acquire the proper business permit, pay the license tax, and secure a conditional use permit. “Indeed, although the steps may differ the basic paradigm of regulatory requirements before one can practice a profession also applies to law, medicine, taxi-driving, counseling, and many other occupations.” The court further stated:

As the government complies with the professional speech doctrine by enacting and implementing a generally applicable regulatory regime, the fact that such a scheme may vary from profession to profession recedes in constitutional significance. Just as the internal requirements of a profession may differ, so may the government’s regulatory response based on the nature of the activity and the need to protect the public. With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.

Therefore, the court held that the County’s regulation of Moore-King’s activities fell squarely within the scope of the professional speech doctrine, and further that those regulations did not abridge Moore-King’s First Amendment freedom of speech.

Next, Moore-King argued that the County’s regulatory scheme interfered with her free exercise of religion under the First Amendment and RLUIPA, which prohibits a government from enacting a land use regulation that imposes a “substantial burden on the religious exercise of a person.” The County responds that Moore-King’s beliefs do not constitute a religion as to afford it protection under RLUIPA. The court noted that in order to determine whether Moore-King’s set of beliefs deserves constitutional protection as a religion, it must consider whether those beliefs are (1) sincerely held and (2) religious in nature under Moore-King’s “scheme of things.” United States v. Seeger, 380 U.S. 163, 185 (1965). The court determined that Moore-King’s beliefs were sincerely held and therefore focused its analysis on the second prong. In doing so, the court asked whether her beliefs occupy a place in her life “parallel to that filled by the orthodox belief in God.” Id. at 166; Dettmer v. Landon, 799 F.2d 929, 931 (4th Cir. 1986). Although Moore-King’s “beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection,” Morrison v. Garraghty, 239 F.3d 648, 658 (4th Cir. 2001) (quoting Thomas v. Review Bd., 450 U.S. 707, 714 (1981)), they must nonetheless amount to a religious faith as opposed to a way of life, Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).

The court looked to the Supreme Court’s decision in Wisconsin v. Yoder, 406 U.S. 205 (1972), for guidance on the distinction between a religion and a way of life. Illustrating rather than defining this distinction, the Court observed that although both the Old Order Amish and Henry David Thoreau rejected “contemporary secular values accepted by the majority . . . Thoreau’s choice was philosophical and personal rather than religious [and therefore did not] rise to the demands of the Religious Clauses. Yoder, 406 U.S. at 216. By contrast, seclusion from modern society for the Amish was “not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living.” Id. The court concluded that Moore-King’s beliefs more closely resembled a personal and philosophical choice consistent with a way of life rather than a deep religious conviction shared by an organized group deserving of constitutional protection. In reaching this conclusion, the court noted that Moore-King specifically foreswore affiliation with organized faith when she asserted that she “pretty much goes with [her] inner flow, and that seems to work best.” The court noted that “a wide variety of sources—the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.—inform and shape Moore-King’s “inner flow” does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his view religious.” Thus, the court affirmed the decision of the district court to grant summary judgment to the County on Moore-King’s constitutional and statutory religion claims.

Finally, the court considered Moore-King’s Equal Protection argument. Moore-King first argued that the County’s regulatory scheme triggered strict scrutiny under the Equal Protection clause because it classified her on the basis of her First Amendment rights. However, as the court already determined that the County’s regulations did not infringe Moore-King’s right to free speech or the exercise of religion, the court chose not to apply heightened scrutiny when reviewing her Equal Protection challenge. See City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). (“Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.”) However, a zoning or licensing ordinance will nonetheless violate the Equal Protection Clause where the plaintiff can demonstrate “that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Vill. Of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). Moore-King argued that she was irrationally treated differently from those engaged in “other office uses,” other fortune-tellers, like those at church-sponsored fairs or telling fortunes as stage actors, and other “spiritual readers,” “prophets,” “psychics,” or “advisors.” The County responded that Moore-King is not in fact similarly situated to any of these entities, and even if she is, any differential treatment is not without a rational basis.

The court determined that, even assuming Moore-King was similarly situated to the entities she identified, she failed to carry her burden of negating “every conceivable basis which might support” the County’s zoning and licensing ordinances, FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993) (quoting Lehnhausen v. Lake Shore Auto Parks Co., 410 U.S. 356, 364 (1973)):

The County may believe it appropriate to impose higher entry costs or more stringent zoning limitations on those seeking to open a business as a fortune teller than on “other office uses” . . . in order to discourage . . . the “innumerable scam artists” that might otherwise operate as fortune tellers and take advantage of the County’s citizens. Likewise, the County could rationally suppose it proper to place greater regulatory burdens on Moore-King’s counseling activities than on the licensed counselors and advisers whom she seeks to compare herself. Granting the County wide latitude to determine how to regulate those who claim or pretend “to disclose mental faculties of individuals for any form of compensation,” we cannot say the County’s regulatory scheme lacks any rational relationship to a legitimate government interest.

Therefore, because Moore-King was unable to identify an appropriate similarly-situated comparator, the court determined that the County’s regulation of Moore-King’s activities was reasonable.

If you wonder if your case falls within the parameters of RLUIPA, please contact a professional at Dalton & Tomich PLC to discuss your matter.

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