Appeals board upholds closure of adult video store in Elkridge Panel rules new law not applicable to case

August 28, 1998|By Edward Lee | Edward Lee,SUN STAFF

Upholding a zoning violation notice, the Howard County Board of Appeals last night ordered an adult video store in Elkridge to shut down its operation.

The five-member board unanimously agreed with county officials that Adult Video & Books in the 7400 block of U.S. 1 was a retail establishment operating in the wrong zoning district and was not a target of a recently approved ordinance regulating sexually oriented businesses.

"This was a violation before the statute, and it's a violation after the statute," said board member Donald Messenger.

County officials said they were pleased with the decision.

"The board used good judgment in affirming what was an obvious zoning violation," said Deputy County Solicitor Paul Johnson, who argued for the county.

David Goldberg, a lawyer representing Nathaniel Lightfoot Inc., which owns Adult Video & Books, did not say whether Lightfoot would appeal the board's decision. But he did announce that his client will challenge a federal ruling that dismissed the store's suit against the county ordinance.

After the April 1997 opening of the Pack Shack on U.S. 40 in Ellicott City and the resulting outcry from nearby residents, the county adopted a law in December that confined adult book stores, movie theaters and live entertainment clubs to general business areas, known as B1 and B2 districts.

The statute also required such businesses to be at least 500 feet from residential communities, churches, daycare centers, libraries, parks and schools, and at least 2,500 feet from any other sexually oriented store. Because the Pack Shack is within 200 feet of an apartment complex, it will have to relocate.

For more than three years, Adult Video & Books had been illegally operating in an M2 district, for heavy industrial *~ warehousing. County zoning officials have said that they do not issue citations unless someone files a formal complaint.

That did not sit well with board member George L. Layman, who grilled county zoning inspector David L. Calloway over the county's zoning code enforcement policy.

Layman was particularly incensed because the Department of Planning and Zoning had denied Adult Video & Books a trader's license on March 25, 1994.

"If I apply for a driver's license and am denied, I can't drive," said Layman, who is running for the District 1 seat on the County Council. "If I apply for a business license and am denied, I should not be allowed to operate."

County officials did not issue a violation notice until April 8, which led to last night's hearing.

Calloway testified that several inspections revealed that more than 50 percent of the floor space in the two-story building that houses the adult store is devoted to sales of videos, magazines and books -- a violation of the 30 percent limit for warehouses in M2 districts.

But Vince Bonadio, an employee of Lovett Distributors, which he said stores videotapes at Adult Video & Books, contended that retail sales took up less than 10 percent of the floor space.

Under questioning by Goldberg, Bonadio also argued that the 10 individual booths in the rear of the store were similar to movie theaters in that a $2 minimum charge for tokens represented an "admission fee."

But Johnson pointed out that unlike movie theaters, the booths could not be viewed by a larger audience than an individual.

"It was clearly a retail use with peep shows, not a warehouse with some retail," Johnson said.

Howard J. Schulman, another attorney representing Adult Video & Books, had argued that since the restrictions limited adult businesses to 23 sites in the county, the law infringed on the store's constitutional right to operate.

But Chief Judge J. Frederick Motz of U.S. District Court in Baltimore wrote in a seven-page ruling released Aug. 20 that the business was violating the county zoning code before the legislation was enacted and therefore had no standing to challenge it.

Pub Date: 8/28/98

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