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The Pleasure Zone Doesn’t Live Up to its Use and Occupancy Permit

In The Pleasure Zone, Inc. v. Board of Appeals for Prince George’s County, No. 1427, Sept. Term 2017 (Md. Ct. Spec. App. Feb. 6, 2019), the Court of Special Appeals affirmed an order of the Circuit Court for Prince George’s County, which affirmed the decision of the County Board of Appeals, which affirmed the propriety of the Zoning Violation Notice issued by the Public Services Department of the City of College Park.

Who would have thought that the Pleasure Zone, Inc., which operated as the “Comfort Zone,” was not operating in conformity with a use and occupancy permit (“U/O”) for a “variety/department store"?  Or in conformity with the owner’s representation that “the proposed use does not include an adult store"?

Over time, three inspectors from the City of College Park visited the store. While the first inspection passed muster, the second two did not and instead revealed a sign limiting access to a portion of the store to those under 18 only when accompanied by an adult. The contents of that area included, shall we say, materials inappropriate for youngsters.

In its defense to the charges that the store violated its U/O, the Pleasure Zone argued that the inspectors had not counted the different types of materials for sale, noting that under the zoning ordinance an “adult bookstore” has at least ten percent of its stock of the mature variety. But the Court of Special Appeals held that it was not necessary to determine whether the store qualified as an adult bookstore, only that it did not comply with its U/O.

The Pleasure Zone next claimed that the Board’s decision in finding a violation notice was “arbitrary and capricious.”  Such a finding would be necessary to overrule the Board’s action. The court found that this was a very high standard and that there was not substantial evidence that the Board’s decision was arbitrary and capricious.

Finally, the Pleasure Zone claimed that the Prince George’s County Code was unconstitutionally void for vagueness because there were no provisions that stated what was permissible and what was not. The court noted that the void-for-vagueness doctrine is most often considered in criminal cases. In the subject case, the court held that the Prince George’s County Code was not unconstitutionally vague as applied there. The court said that the sign posted made it clear that the store was aware that it was not acting in compliance with its U/O.

For questions, contact Ed Levin (410) 576-1900.

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Date

04.03.19

Type

Publications

Authors

Levin, Edward J.

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Real Estate