Pack Shack's long zoning battle continues

Ellicott City adult video store to appeal latest county ruling

October 19, 2007|By Larry Carson | Larry Carson,SUN REPORTER

The Pack Shack adult video store in Ellicott City has lost another legal round to Howard County government, but don't look for the long-embattled business to close or move soon.

The county's battle to use zoning laws to force the store out of its location on U.S. 40 across from the Normandy Shopping Center started nearly a decade ago, and the store's attorney said he plans to appeal the latest ruling, a hearing examiner's opinion declaring that the store is violating current law.

"Of course," was attorney Howard J. Schulman's reply to a question about whether he would appeal. "We simply don't think the county met their case."

The latest opinion, by former county hearing examiner Thomas Carbo, was issued one year after the October 2006 hearing on the case. Louis P. Ruzzi, senior assistant county solicitor, had no comment on the case because it represents pending litigation.

The issue began in December 1997 with passage of a zoning bill requiring adult entertainment stores to apply for permits and regulating where they may be situated.

After a long legal battle, Maryland's highest court ruled in 2003 that the original law was too restrictive and declared it an unconstitutional abridgment of free speech. The county also had to pay Pack Shack $187,690 in court costs. The County Council approved a new law in July 2004.

Carbo, now the county's deputy housing director, concluded in an eight-page opinion issued Oct. 11 that the county proved its case that the Pack Shack violated the new law in three ways.

The county said the store's operators never applied for a permit to operate an adult entertainment business, it is located within 300 feet of residential property, and has viewing booths with doors that "render them invisible from customers and employees."

County inspectors visited the store twice last year and said they found that more than two-thirds of the floor space was occupied with "adult viewable material" and that more than 47 percent of the store's merchandise was in the same category, excluding sexual aids and lingerie. The inspectors submitted a list of titles of some of the books, magazines and videos found in the store, "which contain explicitly sexual references" on their covers.

The store has 16 booths, some with 2-inch-diameter holes in the walls, used for viewing "adult movies depicting sexual content."

Further, they found that the store is 165 feet from an apartment complex.

Schulman contends that because the county inspectors didn't view every movie and read every book in the store, the county failed to establish that the Pack Shack is an adult entertainment business.

"They didn't prove it's an adult business," he said. "They have very precise definitions in the statute."

An appeal would go first to the county Board of Appeals. Regardless of which side wins, the case is likely to be appealed further to Circuit Court, the Court of Special Appeals and, eventually, to the Maryland Court of Appeals.

"If the government is going to regulate what people read and see, they have to do it in the right way," Schulman said.

Because the business existed before the law was passed, he said, it should be allowed to continue, even though the law requires existing business to comply within a year of when the law took effect in 2005. He also said the regulations are vague and too broad, and therefore unconstitutional.

County Councilwoman Courtney Watson, a Democrat who represents Ellicott City, said she has not had a question or comment from a constituent about the store since she took office in December, which she said leads her to believe that "people are comfortable that the county government is dealing with it."

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