More than a year after Howard County passed a law restricting where adult businesses can operate, the county's two adult bookstores remain open, a state of affairs unlikely to change any time soon.
"Absent these stores going out of business or shutting down themselves, they'll be open through 1999," said Paul Johnson, the deputy county solicitor who is leading Howard's legal fight.
Routine legal wrangling is partly to blame. Both stores are represented by Baltimore attorney Howard J. Schulman, who specializes in zoning cases involving adult businesses. He has filed legal challenges that are working their way through the court system.
Schulman has argued repeatedly that the stores are protected by the First Amendment, which guarantees freedom of expression. Though the county vigorously disputes this, it is proceeding more gingerly than usual.
"This is a real red flag area for many people. Even if we don't believe their claims, they are First Amendment claims," Johnson said.
The county has defeated the two stores before the county Board of Appeals and the county Circuit Court. It won a victory in federal court last week when the judge ruled that, in the case of one bookstore, Schulman cannot challenge the adult ordinance itself but may only make a zoning appeal. Despite Schulman's appeals, there is a good chance the county could get a preliminary injunction to close the stores immediately until the appeals are exhausted.
But because of the First Amendment concerns the county has decided not to pursue the injunction, allowing the stores to continue supplying adult entertainment, much to the disappointment of local anti-pornography activists.
The law prohibits adult businesses from operating within 500 feet of a residential neighborhood, church, day-care center, library, park or school. It also requires that they be at least 2,500 feet from another adult business, to prevent Times Square-like porn districts.
Schulman, who was traveling earlier this week and could not be reached for comment, has argued in court that the Howard County adult entertainment zoning law, passed in late 1997, represents an attempt to ban pornography--a form of speech. In response, the county points out that there are 23 commercial zones in Howard County where adult businesses may locate. This proves it is trying to limit where pornography can be sold rather than prohibiting it from being sold at all, Johnson said.
"We're regulating secondary effects of adult entertainment, not the content of what's in the magazines. In fact, you can still buy porn magazines all over the county," Johnson said.
The fight centers on the two adult shops in the county. The Pack Shack on Route 40 in Ellicott City, just a mile from the county courts and offices, is less than 500 feet from the Normandy Woods apartment complex, in violation of the zoning law. It sells adult magazines and videos and has private booths where XXX-rated movies are shown.
Adult Video & Books, on U.S. 1 in Elkridge, is located in a heavy industrial zone that prohibits retail businesses. The county classifies Adult Video & Books as a retail zone, and although it has been operating there for five years, now wants it closed. Schulman argued that because the store stocks X-rated videos for mail distribution it qualifies as a warehouse, making it legal in a heavy industrial zone. He has also raised the First Amendment argument.
On Dec. 14, the Howard County Circuit Court will hear the Pack Shack's argument that it should be allowed to stay based on free speech grounds. The court is in the process of reviewing the decision by the county Board of Appeals to shut down Adult Video & Books. A hearing date is likely for this winter. Decisions on both stores won't come until well into next year.
But that may not be the end of it.
"Either way, both cases will likely be appealed," Johnson said.