Legal battle may be costly

Judge says the county must pay Pack Shack fees

Adult store lawyers ask $200,000

Court to rule on amount

negotiation is being urged

Howard County

March 23, 2004|By Lisa Goldberg | Lisa Goldberg,SUN STAFF

Howard County's five-year battle to defend its adult bookstore ordinance could cost county taxpayers as much as $200,000 -- and that's just for the other side's legal expenses.

Backed by a Maryland Court of Appeals decision that declared the law unconstitutional last year, Pack Shack, the Ellicott City adult store that filed the first legal challenge to the ordinance, has asked the county to pick up its legal costs. And a Howard judge has ruled that the county has to pay.

Just how much was unknown this week. Howard Circuit Judge James B. Dudley reserved ruling on the specific amount for a future hearing. And while Pack Shack's Baltimore-based lawyers say they're owed more than $190,000 -- plus any additional cost that comes from the fight over their fees -- the county is expected to argue for less.

But with county officials working to replace the flawed ordinance with one that passes constitutional muster, Howard could face more legal challenges.

"It depends if they keep trying to close the Pack Shack down," said Howard J. Schulman, who represents the Ellicott City store. "If they're smart, they'll grandfather it in."

The fight over fees is the culmination of a legal battle that resulted in victories for Howard County at every level -- except for the state's highest court, which has the power to overturn lower court decisions.

Despite lower court rulings upholding Howard's adult bookstore ordinance, the Court of Appeals said it was so restrictive it violated Pack Shack's First Amendment rights.

While laws regulating adult stores are allowed, they cannot be so limiting that they place "excessive burdens" on the owners or provide too few places to set up shop, the court ruled. Howard's ordinance provided only a few locations for adult stores to operate and the licensing process was too onerous, the court said.

With the Court of Appeals decision in place and the law effectively voided, Howard J. Schulman, who represents the Ellicott City store, filed a petition for fees and costs last year, sparking immediate opposition. In court papers, county attorneys argued that Pack Shack's lawyers were not entitled to recover attorney's fees.

Dudley disagreed.

"You chose to participate ... and they threw the last card down, and you lost," Dudley said during a March 12 hearing on the issue. "You lost the case. There are inherent consequences of winning and losing, and you lost."

But the judge also reserved ruling on the amount and suggested that lawyers meet to "find a number that both sides can live with."

In court papers, Schulman said that Pack Shack paid a $20,000 fee for legal services, but that the realities of the case call for a much higher amount.

Based on hours worked and expenses paid, the county should pay his firm, Schulman & Kaufman LLC, a total of $195,282.72 -- minus the $4,796.90 the county paid as a result of an appellate court mandate, he wrote.

"Remember, this is five years of litigation -- two appeals, a trial, the pretrial process as well as proceedings holding the store in contempt," Schulman said last week.

In court papers, county attorneys take issue with some of the costs and fees listed in Schulman's petition and say his request should be "substantially reduced," saying it is "grossly disproportionate" to the business' legal success.

Officials with the county solicitor's office, who defended the ordinance with staff attorneys, declined to comment further, saying it would be inappropriate to do so while the issue is pending.

Raymond S. Wacks, the county budget director, said Howard officials did not include money to pay attorney fees in the Pack Shack case in the budget.

"It will be a challenge" to pay any fees, Wacks said. "... It's always a tough budget year."

Despite the protracted legal fight that followed passage of the first ordinance in 1997 -- Pack Shack filed its lawsuit in early 1999 -- and the resulting legal bills, Councilman Christopher J. Merdon, who lives about a mile from the store, said he believes there still is a need for restrictions on adult stores.

"The fact is, with no ordinance in place, these types of materials could be sold anywhere in the county, and I don't think that's appropriate," he said.

A draft of a new adult book store regulation is scheduled to be heard by the county Planning Board on April 1. The revamped regulation would modify some of the restrictions to add more potential sites where adult stores could operate and makes changes to the permit process, officials said.

The new draft would cut the required distance between the stores and residences, religious institutions, day care centers, libraries, parks and schools from 500 feet to 300 feet and the distance between adult stores from 2,500 feet to 1,000 feet.

Pack Shack is 165 feet from an apartment complex.

The draft also would give existing businesses one year to come into compliance.

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