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Appeals board says The Video Store violating city ordinance

April 06, 2006|by TARA REILLY

HAGERSTOWN - An adult bookstore in downtown Hagerstown is violating the city's zoning ordinance by operating in an area where adult businesses are not permitted, the city's Board of Zoning Appeals ruled Wednesday.

The 4-0 decision upholds a violation issued to The Video Store at 23 E. Washington St. by Hagerstown Zoning Administrator Steve Bockmiller.

The Video Store appealed the violation.

The board also said the city's ordinance regulating the locations of such businesses is constitutional, because there are a number of other sites where adult shops may operate.

The appeals board, however, reversed Bockmiller's assertion that The Video Store, which has viewing booths, also is violating the ordinance as an "adult motion picture theater," saying the establishment does not fit that description as defined by the zoning ordinance.

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The Video Store fits the definition of an adult mini-motion picture theater, which Bockmiller did not mention in his violation, the appeals board said.

The ordinance defines an adult motion picture theater as one that can hold 50 people or more, while an adult mini-motion picture theater is one that holds fewer than 50.

Representatives from The Video Store were unavailable for comment Wednesday night. A man who answered the phone at the bookstore told a reporter to call back today and speak with the manager.

The Video Store is in a C-3 (commercial central) zone. The city's zoning ordinance prohibits adult bookstores or adult mini-motion picture and adult motion picture theaters in C-3 zones.

The city allows adult businesses in C-2 (commercial general) zones, if they are 1,000 feet away from any church, school, park, hospital, nursing home, public or quasipublic facility for senior citizens "or similar land uses for human care and needs."

The Video Store argued that the city's ordinance intentionally makes it difficult for adult businesses to operate in Hagerstown.

At an appeals board hearing last month, Shep Tullier, a consultant who testified for The Video Store, said he found 40 possible C-2 business areas in the city. But zoning restrictions, economic obstacles or both eliminated about four-fifths of them.

The Video Store representatives identified seven or eight sites at the hearing that they said might work for them, the appeals board said.

"I think the city is giving reasonable opportunity to adult bookstores to find nondowntown locations," Board of Zoning Appeals Chairman William C. Wantz said.

Bockmiller said the appeals board's ruling was "mostly positive."

"What we didn't get tonight, we can get at a later date," he said.

He said he will discuss with the city attorney whether to cite The Video Store under an adult mini-motion picture violation.

The appeals board will notify The Video Store of its findings in several days. The business has 30 days after receiving the written decision to file an appeal in Washington County Circuit Court, Bockmiller said.

The city may fine The Video Store $1,000 a day for each day the violation continues.

"We prefer compliance, though," Bockmiller said.

Should the business appeal Wednesday's decision in Circuit Court, Bockmiller said a fine would not be suspended during that process.

The Video Store also has challenged whether the city's 2002 adult entertainment ordinance is constitutional. A Washington County circuit court judge has sided with the city, but The Video Store has appealed to the Maryland Court of Special Appeals.

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