Challenge to adult-business law fails Elkridge video store is in wrong zone, has no claim, judge says

August 25, 1998|By Edward Lee | Edward Lee,SUN STAFF

A federal judge has dismissed a sexually oriented video store's challenge of a Howard County ordinance regulating adult entertainment businesses.

In ruling that the Elkridge store does not have standing to sue because it was already in the wrong zoning district when the law was adopted, Chief Judge J. Frederick Motz of U.S. District Court in Baltimore did not deal with questions of the law's constitutionality.

"We think it was a logical result," said Deputy County Solicitor Paul Johnson. "Even if the courts struck down the ordinance, the business would still be illegal."

Motz sided with the county in ruling that since Nathaniel Lightfoot Inc., which trades as Adult Video and Books in the 7400 block of U.S. 1 in Elkridge, has been operating illegally in its current location for more than three years, it cannot challenge the statute passed in December.

"The county's position is correct," Motz wrote in a six-page decision released Thursday, adding that the store's arguments were not "sufficiently persuasive."

Howard J. Schulman, an attorney representing Adult Video and Books, said his clients have not had time to fully review the judge's opinion.

"We're assessing it now, and we're trying to deal with the options we have before us," Schulman said. "The judge's decision does not foreclose the possibility of a future constitutional challenge in his court. It leaves our options open."

The dispute is over the county ordinance that restricts adult book and video stores, adult movie theaters and adult live entertainment clubs to general business districts, known as B1 and B2 zones.

The law, sparked by the April 1997 opening of the Pack Shack on U.S. 40 in Ellicott City, also requires such businesses to be at least 500 feet from residential areas, churches, day care centers, libraries, parks and schools, and at least 2,500 feet from another adult store.

Motz also wrote that if the store obtained an administrative ruling from county zoning authorities allowing its existence, then the store would have standing to challenge the statute.

The store is seeking such a ruling from the Howard County Board of Appeals at a hearing Thursday night. The store is appealing an April 8 zoning violation order that would, in effect, shut the business down.

Kevin Doyle, vice president of the Greater Elkridge Community Association, said he thinks the ruling will strengthen the county's stance against such businesses.

"We're very happy with the judge's decision," Doyle said.

Stores in violation would have a year to move or close. Because the Pack Shack is within 200 feet of an apartment complex, that store will have to relocate.

In previous interviews, Schulman argued that because the restrictions limit sexually oriented business to only 23 sites throughout the county, the legislation infringed on the businesses' constitutional right to operate.

But Motz noted that Adult Video and Books, which has been operating in an M2, or industrial, district, was in violation of the zoning code before the ordinance was adopted, so it had no basis to challenge the law on constitutional grounds.

Motz also dismissed the store's argument that 10 separate video viewing booths constitute a movie theater, which is permissible in an M2 zone.

Quoting from a 1971 Baltimore case, Motz wrote, "'[T]here is no general admission or any admission money paid upon entering the premises, the only payment being that made by placing a token in the slot in the private booth to activate the [video monitor] in that individual booth. Furthermore, the premises contains no assembly space of any consequence.'"

Motz also disagreed with the store's claim that it was a warehouse, which is also permitted in M2 districts. County zoning codes state that retail sales are permitted in such warehouses only if they do not involve more than 30 percent of the floor space.

Motz pointed out that the 593 square feet of space for retail sales and viewing booths would take up more than 50 percent of the floor space.

Pub Date: 8/25/98

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