Howard County v. PACK SHACK INC

• Citation: 773 A.2d 612,138 Md. App. 720
• Decision Date: 04 June 2001
• Docket Number: No. 1635,1635
• Parties: HOWARD COUNTY, Maryland, v. The PACK SHACK, INC.
• Court: Court of Special Appeals of Maryland

773 A.2d 612

138 Md. App. 720

HOWARD COUNTY, Maryland, v. The PACK SHACK, INC.

No. 1635, Sept. Term, 2000.

Court of Special Appeals of Maryland.

June 4, 2001.

Paul T. Johnson, Deputy County Solicitor (Barbara M. Cook, County Solicitor and Louis P. Ruzzi, Senior Assistant County Solicitor, on the brief), Ellicott City, for appellant.

Joseph S. Kaufman (Howard J. Schulman and Schulman & Kaufman, LLC, on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., JAMES R. EYLER and RAYMOND G. THIEME (Ret., specially assigned), JJ. JAMES R. EYLER, Judge.

The principal issue addressed in this opinion is whether there is a right of appeal from a circuit court's denial of a petition for constructive civil contempt for failure to obey an injunction by the party who filed the petition. We conclude that, while ordinarily there is no such right of appeal, there is in this case because the contempt proceeding was in the nature of a civil execution to enforce a decree intertwined with an appealable order, i.e., the injunction.

Factual Background

Howard County, appellant, filed a petition for constructive civil contempt in the Circuit Court for Howard County to enforce an injunction previously entered against Pack Shack, Inc., appellee. The prior injunction, effective June 2, 2000, enjoined appellee from using its leased premises as an "adult book or video store," in violation of the Howard County zoning regulations.¹ The injunction was entered as part of a declaratory judgment proceeding in which appellee challenged the constitutionality of Howard County zoning regulations applicable to adult video and book stores. The circuit court upheld the regulations, and this Court affirmed in Pack Shack, Inc. v. Howard County, 138 Md.App. 59, 770 A.2d 1028 (2001). In the matter currently before us, the circuit court found that there was insufficient evidence to hold appellee in contempt.

On December 14, 1999, in connection with the constitutional challenge, the parties entered into a stipulation pursuant to which appellee admitted that it was in violation of the applicable regulations as of the time of the trial on the constitutional issues. In that proceeding, at the circuit court level, appellee raised various constitutional challenges, but on appeal, asserted only First Amendment and Article 41 violations. See Pack Shack, 138 Md.App. at 68-69, 770 A.2d 1028.

On June 9, 2000, appellant filed its petition for constructive civil contempt in the same circuit court action, alleging that appellee was in violation of the injunction, despite the fact that it had added non-adult books and viewing booths for sex education videos rather than the previously displayed adult videos. In response, appellee asserted that it was no longer operating an "adult book or video store" as defined by Howard County zoning regulation Section 103.A.4.1.a, "in that a significant or substantial portion of its stock in trade is not characterized by an emphasis on matters depicting, describing, or relating to sexual activities," and that it was not offering for viewing on the premises "videos or similar materials characterized by an emphasis on matters depicting, describing, or relating to sexual activities."

On July 19, 2000, the circuit court held a hearing. Appellant introduced certain exhibits, one of which was the December 14, 1999 stipulation entered into in connection with the constitutional challenge. David Calloway, a Howard County zoning inspector, testified in support of appellant's petition. Mr. Calloway inspected appellee's premises on January 26, February 4, and May 27, 1999, and, after the effective date of the injunction, on June 8 and July 18, 1999. Diagrams of the floor plan of the premises prepared at various points in time were admitted into evidence.

Mr. Calloway testified that on January 26, 1999, the store was divided into three areas: the northern entrance area, the main area, and the individual video viewing booth area. The northern entrance area constituted about 25% of the floor area of the store and contained both adult items and non-adult items. The main area included a counter area, behind which adult books and videos were displayed, and the main floor area, where books, videos, and novelties were displayed. Mr. Calloway testified that the main area contained only adult items. He testified that the layout and content of the store was the same at the time of the February 4 and May 27, 1999 inspections.

Mr. Calloway testified that the June 8, 2000 inspection revealed several changes. He testified that the store contained the adult items that he had observed prior to the June 8, 2000 inspection, but several racks of paperback books and one rack of greeting cards had been added. In addition, the menu for the individual viewing booths indicated a selection of health and sex education films rather than a menu for adult films, which he had observed at prior inspections. Mr. Calloway testified that, at the time of the July 18, 2000 inspection, an additional rack of non-adult greeting cards had been added in the northern entrance area of the store.

On cross-examination, he testified that he had not counted the inventory in the store and did not have a specific number of adult items of inventory versus non-adult items of inventory. He further testified that it was not part of his responsibility to determine what appellee would have to do to bring itself into compliance so that it would not have a significant or substantial portion of its stock in trade in adult materials.

Vincent Bonadio, Jr. testified on behalf of appellee. Mr. Bonadio testified that he supervised the store business and, in that capacity, prior to June 2, 2000, in anticipation of the effective date of the injunction, he directed the renovation of the store and changes to the store's inventory. He testified that 500 magazines and 800 videos of a sexually explicit nature were removed and were replaced with non-adult paperbacks. He also stated that card racks, novelties, t-shirts, lingerie, sunglasses, and false fingernails were added as merchandise for sale. He did not specify how many of the non-adult items were added as part of the changes. It was undisputed that prior to the changes made as a result of the entry of the court's injunction, appellee sold non-adult merchandise, but the quantity was not specified.

Mr. Bonadio testified that he participated in an inventory of the store's merchandise after the changes had been made, and that the inventory was summarized on a document introduced into evidence by appellee. The list contained adult and non-adult items. He testified that the non-adult inventory contained 30,521 items. Of that number, 13,600 were lapel-sized flag pins. The non-adult inventory also contained 6,785 non-adult books and 4,600 greeting cards. He testified that the adult inventory consisted of 6,390 items, which included movies, books, and sex toys.

When Mr. Bonadio testified that the decision of whether or not an item went on the adult or non-adult list was made by "people at corporate," appellant moved to strike the list on the ground that the witness lacked sufficient knowledge of its contents to warrant its admission. The court denied the motion.

On cross-examination, Mr. Bonadio acknowledged that the non-adult list included items such as latex panties and bras, edible panties, lingerie, garters, pasties, specialty condoms, and various games.

As noted previously, the circuit court refused to hold appellee in contempt, and appellant noted an appeal to this Court.

Contentions of the Parties

First, appellant contends that the circuit court committed an error of law because it applied a "beyond a reasonable doubt" standard to a civil contempt proceeding when it should have applied a preponderance of the evidence standard. Second, appellant contends that the court erred in implicitly finding that the applicable zoning regulations were unconstitutionally vague or otherwise in violation of the First Amendment when it had already found the provisions valid in the declaratory judgment proceeding. Third, appellant contends that the circuit court erred in applying an implied percentage requirement to the "significant or substantial" language contained in the zoning regulations. Fourth, appellant contends that the circuit court erred in not beginning its analysis with appellee's admitted violation of the zoning regulations and, from that starting point, determine whether there had been a significant change in the business. Finally, appellant contends that the circuit court erred in denying its motion to strike the inventory list.

Appellee moved to dismiss the appeal on the ground that there is no right of appeal from the denial of a petition for contempt.

Motion to Dismiss Appeal

Appellee, relying on Md.Code (1973, 1998 Repl.Vol.), Courts & Judicial Proceedings (CJ) § 12-304, contends that appellant had no right to appeal from the denial of its petition for contempt. Appellee also contends that the contempt was criminal in nature and that a reversal on appeal would subject appellee to double jeopardy. With respect to the latter point, we disagree. The petition was clearly styled a petition for civil constructive contempt and was filed in accordance with Md. Rule 15-206.² The circuit court declined to find contempt and, consequently, imposed no sanction. The question of whether a particular sanction is unlawful in a civil contempt proceeding is not before us.

We proceed to discuss appellee's main point, which is that the appeal cannot proceed even if it is a civil contempt proceeding. CJ § 12-301 provides, in pertinent part:

Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular...