Hearing ordered on peep show curbs Appeals court raises questions about constitutionality

January 29, 1998|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

The Anne Arundel County Circuit Court must determine the constitutionality of county zoning restrictions on peep shows and adult bookstores, the state's highest court ruled yesterday.

The ruling by the Court of Appeals -- a setback for the county, which had won in lower courts -- pointed to what might be a constitutional flaw in the county's law, which allows a zoning official to decide what is obscene.

Harry Levy, a lawyer for Annapolis Road Ltd., had argued that the county never spelled out how it would decide whether movies are obscene. To gain the conditional-use zoning approval it needs to do business, an adults-only store may not have obscene films.

Nothing prevents a county official from declaring a film obscene and revoking the store's zoning approval, which would force it to close, Levy said. He called that prior restraint on constitutionally protected free speech.

The Court of Appeals did not rule on that issue or on the validity of the law, but judges said the issue must be addressed by an Anne Arundel County circuit judge.

The case is rooted in an appeal by Annapolis Road, a closed adult bookstore and peep show across Route 175 from Fort Meade, of 1991 and 1992 zoning laws that were designed to keep such businesses from proliferating and to push them into heavy-industrial and commercial districts and away from residential areas.

The County Council enacted the laws after an adult video rental store opened at the edge of a Glen Burnie residental neighborhood.

The court's ruling would allow Annapolis Road to reopen with peep shows. Attorneys for the store said no decision has been made about reopening during what is expected to be a long legal battle.

"At least at this point, the ordinance has not been struck down," said Deputy County Attorney David A. Plymyer, who said he was disappointed by the court's opinion.

The county has conceded that the licensing provision in its law is unenforceable because in 1995 a federal appeals court struck down similar laws in Prince George's and Harford counties. But RTC Plymyer argued that the zoning section was valid and that Annapolis Road was in the wrong zoning district.

Plymyer said he felt that the Court of Appeals "mischaracterized" the lower-court rulings as not specifically addressing constitutional issues.

The Court of Appeals demanded a hearing on how the county would satisfy a condition it sets for adult bookstores and peep shows to do business: that their movies not be obscene.

"A county official might be given discretion to determine what is obscene and on the basis of that determination deny a conditional-use certificate. Such a grant of discretion might be unconstitutional," the judges wrote.

They said they wanted a clear record on whether a county official has any say in deciding whether to give conditional-use approval because in the officials' opinion the movies are obscene.

"Obscenity is something that people have litigated for years," Levy said. "Government does not have the unfettered ability to determine what it obscene or not. There must be clearly articulated standards."

Pub Date: 1/29/98

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