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Adult video store sues the city

October 06, 2005|by ANDREW SCHOTZ

HAGERSTOWN

andrews@herald-mail.com

A downtown adult video store that was refused a specialized business license has sued the city, alleging a free-speech violation.

The shop at 23 E. Washington St., known as The Video Store, previously challenged the constitutionality of the city's 2002 adult entertainment ordinance.

In June, Washington County Circuit Judge John H. McDowell ruled in the city's favor, but The Video Store has appealed the decision.

The store's latest complaint is over being turned down by the city for an adult business license.

City Clerk Donna K. Spickler sent a letter to the owners of the store Aug. 12, saying the property's zoning doesn't allow an adult business.

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The business' owner, 104 West Washington Street II Corp., responded Sept. 15 with a complaint in Washington County Circuit Court. The lawsuit calls for the city to grant a license and reiterates the charge that the adult business zoning is unconstitutional.

"All this is a masked attempt at censorship," Howard J. Schulman, a Baltimore attorney representing 104 West Washington Street II Corp, said Monday.

Spickler referred questions to City Attorney Mark Boyer, who wouldn't comment.

City Administrator Bruce Zimmerman said a zoning dispute over the adult shop dates back many years.

License or not, the store might have no more than three years left.

In February, Bowman 2000 LLC bought 23 E. Washington St. from Joseph A. Young III for $550,000.

Bowman will tear down the building to widen an alley leading to a planned parking garage, the City Council heard in February. Demolition would be after the store's lease expires on Dec. 31, 2008, or sooner if the shop closes.

Spickler's letter to 104 West Washington Street II Corp. says the city denied the adult business license for two reasons.

First, the Hagerstown Police Department found that the business is violating a prohibition on closed video booths in adult businesses, the letter says.

Second, the city's Planning Department found that the business meets the definition of both an adult bookstore and an adult mini-motion picture theater, both of which are prohibited in the store's C-3 (commercial central) zone.

The city allows adult bookstores in C-2 (commercial general) zones, but not within 1,000 feet of the property boundary lines for a church, school, park, hospital, nursing home, public or quasipublic facility for senior citizens or "similar land uses for human care and needs."

Schulman said Monday that the zoning and the current real estate market seemingly make it impossible for an adult business to operate in the city.

The ordinance defines an adult business as one with at least 5 percent of its stock in merchandise depicting "specified sexual activities" or "specified anatomical areas." Both phrases are defined in the city's zoning ordinance.

Schulman wondered how many other local businesses have at least 5 percent of their stock devoted to sexually themed merchandise.

In its complaint, 104 West Washington Street II Corp. says the shop has operated at 23 E. Washington St. since about 1980.

In 1991, the city amended its zoning ordinance to exclude any adult-themed bookstore or mini-motion picture theater from the city's C-1, C-3 and C-4 business districts within two years.

The Video Store had been open 24 hours a day, but is now closed from midnight to 8 a.m. to comply with the city's 2002 ordinance.

Schulman said The Video Store changed its stock over the years so it wouldn't qualify as an adult business, but it has reverted to its traditional merchandise.

On Tuesday, the store was filled with explicit sexual videos and merchandise. The store had 12 enclosed screening booths with doors that closed.

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