Agenda - Planning Commission - 05/02/2002

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Page 4 -- March 25, 2002 Adult Entertainment -- County enacts adult entertainment provisions V'~deo storgowner claims First Amendment violations M,~uRYLAND (0~06/02) -- Bigg Wolf operated a retail store in Silver Spring that sold videos and DVDs, most. of which were sexually explicit. The store also sold sexually or/ented merchandise. · Sexually explicit material was confined to the rear of the store, and only sold to adults over 21. The rear area comprised more than 50 percent of the store's space, but 85 to 90 percent of its sales. ' In May 2000, the county enacted zoning provisions for adult entertaipment businesses. BefOre the new provisions, Bigg Wolf had been lawfully located at · the store since 1998. The new zoning provisions restricted the location and practices of adult entertainment businesses. Such establishments were permit- ted in certain zones if the adult materials were not visible from outside and the business was 750 feet away from residential zones and other specified build- ings, including schools, parks, day care centers, churches, or other adult enter- .tainment businesses. In addition, hours of operation were limited between 9 a.m. and 1I p.m. E~sting non-conforming businesses were allowed to operate for 18 months after the effective date of May i, 2000, after which compliance was required. Bi~* Wolf sued. claiming the ordinance violated the First Amendment. B'**~=~, Wolf asked for a preliminary injunction preventing enforcement of the order, and the county asked for judgment in its favor. DECISION: Injunction denied; judgment for county denied. The case could proceed, but the court refused to order the county .to refrain from enforcing the order while the case was litigated. There were sufficient'facts in'dispute to allow the case t° proceed further pending further information being gathered. However, B~= Wolf was not entitled' to a preliminary injunction because it could not show it presented a serious question on the merits. Under the new provisions, to remain at its current location, the store would have to reduce its retail' space devoted to adult merchandise to 10 percent. Otherwise, it would have to relocate to an allowed district and remain 750 feet from selected buildings. Here, the county adequately demonstrated the ordinance was aimed at a substantial governmental interest, e.g~, the negative.secondary effects of.adult entertainment businesses rather than the content of the speech. Here, the county council had stated it was aware of the seconda'ry effect studies of a number of other municipalities and proposed to combat ~nd minimize harmful secondary effects of adult businesses. The coumy did not have to prove B~== Wolf would have the exact same adverse effects as d~ose in the Studies as l~mg as the ordinance affected only categories of business reasonably believed to produce some of the unwanted secondary effects. Blgg V~/olf provided no evidence a store with more than .I I ! I I I I I I I I I I I I I I