Court agrees that adult bookstore must close

Howard business said 1997 law violated its right to free speech

April 25, 2001|By Alec MacGillis and Lisa Goldberg | Alec MacGillis and Lisa Goldberg,SUN STAFF

The state Court of Special Appeals upheld yesterday a lower court ruling requiring that an Ellicott City adult bookstore be shut down under a 1997 Howard County law that sharply limits sexually oriented businesses.

The appeals court rejected arguments by the store, the Pack Shack on U.S. 40, that the county law violated its First Amendment rights.

The law, which bars adult businesses from most parts of the county, left the store with a dozen places in the county it could move to and therefore did not violate its free-speech rights, the court ruled, upholding a ruling in May by Circuit Judge James B. Dudley.

"The fact that the sites are commercially undesirable is not determinative," the court found. "We hold that the alternative sites are adequate."

Despite the ruling in the county's favor, it remains to be seen whether the Pack Shack will be forced to close. When the store appealed Dudley's ruling last year, county lawyers returned to Dudley in July asking him to find the store in contempt for staying open, in violation of his ruling.

At the July hearing, the Pack Shack argued that it was no longer primarily an adult book or video store, said Deputy County Solicitor Paul T. Johnson. Pack Shack officials said they were no longer showing adult videos in individual viewing booths and had brought in paperback books, greeting cards and other items, he said.

Noting the store's supposed change in focus, Dudley ruled against the county, Johnson said. The county has appealed that decision, and arguments are scheduled to ebe heard May 2 before the Court of Special Appeals.

The 1997 law confines adult businesses to business zones and requires them to be at least 500 feet from residential communities, churches, day care centers, libraries, parks and schools, and at least 2,500 feet from any other sexually oriented store. The Pack Shack is about 165 feet from the Normandy Woods apartment complex.

Last year, the store hired a private detective who found adult material for sale at many stores around the county not considered adult businesses, including several at The Mall in Columbia. In its appeal, the store argued that the law was intended mainly to shut it down. Only one other store, in North Laurel, is being challenged under the law.

A third store, Adult Video in Books in Elkridge, is appealing a ruling by Dudley, unrelated to the new law, that it is in the wrong zoning district.

In its appeal, the Pack Shack also argued that the county had failed to justify the new law. The appeals court rejected that contention, saying it was enough for the county to rely on studies in other jurisdictions showing the side effects of adult businesses, such as lowered property values and higher crime.

The appeals court also rejected the Pack Shack's claim that it would be all but impossible to find a permitted location in the county. Quoting one of its previous rulings, the court said that "so long as the protected materials continue to be fully available and public access to them is not substantially impaired," restrictions are constitutional.

The Pack Shack's lawyer, Howard J. Schulman, could not be reached for comment last night.

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