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Adult business law could change

December 22, 2004|by GREGORY T. SIMMONS

gregs@herald-mail.com

Rules governing The Video Store - the city's only "adult business" store as defined by city code - could soon change.

The Hagerstown City Council voted 5-0 on Tuesday to introduce an ordinance to further amend the city code governing adult businesses. The legislation would close loopholes discovered during proceedings in a court case filed last year against the City of Hagerstown.

The amendments must be approved in a second vote set for Jan. 25 before they take effect.

While the amendments only changed 135 words in the three-page ordinance, a city attorney said he believes the changes will end a legal challenge brought by the owners of The Video Store.

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The amendments establish a 30-day time limit on the City Clerk's Office to decide whether to grant or deny an adult business license.

The amendments also spell out the appeals process for the city's decision.

The rule changes are a result of a court battle that began in March 2003.

In October 2002, the council adopted new rules to regulate adult businesses. The rules established a licensing system for adult businesses, a $250 annual fee and restrictions on the business operation.

The Video Store at 23 E. Washington St. was the only store that met the city's description of an adult business. The store is one block from City Hall.

The regulations included limited business hours because there had been complaints about The Video Store's hours of operations: It was open 24 hours a day before the rules took effect. The new rules said adult businesses must be closed between 1 a.m. and 6 a.m.

The rules also singled out adult video viewing booths, requiring that they remain open at all times and that there be no holes or openings in the booths other than the main entrance and exit for the booths.

There was a county health complaint filed against the store, and one man said he might have contracted AIDS at the store because of lax rules, according to court documents.

In March 2003, attorneys for the owners of The Video Store filed a lawsuit against the City of Hagerstown and a city police officer, but the suit later was narrowed to exclude the officer.

When the suit reached Washington County Circuit Judge John H. McDowell, The Video Store's lawyers questioned only the constitutionality of the ordinance, according to his Nov. 3 opinion on whether to rule in favor of the city before reaching a trial.

McDowell found largely on the behalf of the city. McDowell did find, however, on behalf of The Video Store's owners on one point, keeping the case alive.

McDowell ruled that "although the ordinance is constitutional in every other respect," there was no provision requiring the city to issue a license within a certain amount of time, and the city could delay licensing because it was not laid out precisely in the ordinance.

City Attorney Mark Boyer, in a Dec. 7 letter to City Administrator Bruce Zimmerman, said he believed the amendments would close any loopholes that The Video Store's lawyers might test in court, which should result in the case's ending.

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