Adult store wins a round

Procedural ruling setback in county regulation effort

Shop, not Howard, can appeal

Adult-business ordinance constitutionality still issue

Ellicott City

October 10, 2002|By Lisa Goldberg | Lisa Goldberg,SUN STAFF

Maryland's high court dealt a setback yesterday to Howard County's attempts to regulate an Ellicott City adult video and bookstore, ruling that county officials could not appeal a decision by a local judge that, ultimately, allowed the store to stay in business.

In its 18-page decision released yesterday, the state Court of Appeals said that only the accused in a civil contempt case - in this case, the adult store Pack Shack - can appeal an unfavorable ruling under the law.

County officials had sought to overturn a July 2000 decision by Howard Circuit Judge James B. Dudley who found the store not guilty of violating his order to stop operating as an adult store after the business offered testimony that it had added substantially to its "nonadult" stock.

A "significant and substantial portion" of the store's stock must be "adult" for the business to fall under the county's contested adult store regulations, and a lawyer for the store offered testimony that the store had more than 30,000 "non- adult" items, including more than 13,000 flag pins, in its inventory.

County officials disagreed with Dudley's decision and appealed.

"If you get what you think is a good decision on an injunction and, for whatever reason, the court decides not to find a party in contempt and you think that's wrong ... there's really no way to challenge it" based on yesterday's ruling, said Deputy County Solicitor Paul T. Johnson.

But while yesterday's Court of Appeals ruling marked a procedural setback in the county's efforts to regulate adult businesses, the court left unanswered the larger question before it - whether Howard's 5-year-old adult-business ordinance is constitutional.

The court heard arguments on that issue in January. It is unclear when the judges will issue a ruling.

Pack Shack, which opened on U.S. 40 in April 1997, has been at the center of dispute since the county's decision to regulate adult businesses with an ordinance that the store's lawyers argued targeted Pack Shack and violated its constitutional rights.

The store, which predated the ordinance, was ordered to stop operating because, under the new county law, it was too close to a residential neighborhood.

Pack Shack sued, but Dudley and the Court of Special Appeals rejected its arguments. The Court of Appeals later agreed to hear the case.

Two other adult stores have since filed suit against the county. One case has been stalled while lawyers await the high court's constitutionality ruling. In the other, Dudley ruled that the store, in Elkridge, could not operate as a retail establishment because it was in the wrong district, one designed for manufacturers.

That store, which leased space in the 7400 block of Washington Blvd., was found in contempt of Dudley's order in August. The owners had moved out by last week, said Bill Hayman, who owns the property. Hayman has since filed suit in Howard District Court to officially evict the business, noting nonpayment of rent.

"It would appear the county was successful in crushing an adult bookstore," said Howard J. Schulman, who represents Pack Shack and the Elkridge store. " ... The ordinance that was passed was designed to put these two stores out of business."

County officials have argued that the ordinance merely restricts where such stores can operate and requires operators to obtain a permit.

As for Pack Shack, it continued to operate yesterday in its small, box-shaped building as customers trickled in to peruse adult video titles, browse through a display of sex toys or buy tokens for viewing booths.

The store also sells nonsexual items, including paperback books and word puzzles.

Johnson said yesterday that the county has not sought sanctions against Pack Shack since the contempt hearing because it is awaiting the final appeals court ruling on the constitutionality of the ordinance.

"If the court finds that the statute is unconstitutional, obviously, we would have to go back to the drawing board," he said. "If they find it constitutional, at that point, we would initiate another contempt proceeding because we still don't believe they are in compliance with the ordinance."

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