Lawyers for Howard County and the Pack Shack took their long-running debate over the constitutionality of the county's adult business ordinance before the state's highest court yesterday for a judicial review with potential to impact similar laws elsewhere.
In oral arguments before the Court of Appeals yesterday, lawyers for the Ellicott City business, who have been sparring with county officials for more than four years, said the 1997 law violates the Pack Shack owners' First Amendment rights and was created to drive it and a second adult store in the county out of business.
"It's all directed at those two," said Howard J. Schulman, the attorney representing Pack Shack. "That's what makes it unique."
But Senior Assistant County Solicitor Louis P. Ruzzi told the court that the law restricts where such stores can operate -- in certain business zones and at least 500 feet from residential areas, schools, day care centers and other such facilities -- and requires owners to obtain a permit. The Pack Shack, which opened on U.S. 40 in April 1997, is 165 feet from the Normandy Woods apartments.
In court papers, Schulman argues that the zoning requirements make it nearly impossible to find a legal location for the business, a contention the county disputes, saying more than 100 potential sites are available.
The court agreed to review the law after a Howard Circuit Court judge and the Court of Special Appeals issued rulings that upheld the ordinance.
When the store remained open after Judge James B. Dudley ruled that the zoning law is "valid" and the Pack Shack would have to stop operating as an adult store by June 2, 2000, store officials replaced some of their stock, adding more "non-adult" items, according to court papers.
At a July 2000 hearing, county officials asked Dudley to find the store in contempt of his injunction order, but the store's lawyers presented evidence of the new stock and the judge found the store not guilty.
The county appealed that ruling, and last summer, the Court of Special Appeals voided Dudley's finding, saying he held the county to too stringent a standard of proof.
Pack Shack lawyers also appealed that ruling, saying the county had no right to appeal Dudley's decision.
Oral arguments in that case were also held yesterday.
After yesterday's arguments, Ruzzi said the county was happy with the Court of Special Appeals' findings, and "even the possibility that the decision[s] could be altered concerns the county."
Schulman, who noted that the high court's ruling could be "influential" beyond Howard County depending on the scope of the high court's opinion, said yesterday that while the Pack Shack has modified its inventory, it shouldn't have to (change its inventory) just to stay open, he said.
"These are interesting judicial issues," he said.
"What's important about it for everybody is what would come next. If this ordinance is used as a pretext...it could be a church next."