PITTSFIELD >> A U.S. District Court judge has dismissed an appeal of a Zoning Board of Appeals decision in 2015 that effectively blocked a business that board members decided would need an adult entertainment permit.
Capital Video Corp., based in Cranston, R.I., had sought permits to open a retail shop called Amazing Intimates & Smoke Shop at 1575 West Housatonic St., but during a ZBA hearing, the board determined the business would have to apply as an adult paraphernalia store under a city zoning ordinance regulating such establishments.
Capital Video has operated a store called Amazing.Net on South Street since 1995, along with about two dozen stores in New England and New York, selling adult items such as videos and adult sex toy items. However, the owners contended that the West Housatonic Street shop would feature some adult material but focus mostly on items like clothing, smoking paraphernalia; lingerie, costumes, lotions, gag gifts, marital aids and massage oils, and therefore would not meet the zoning definition of an adult entertainment shop.
The ZBA disagreed after receiving an opinion from the city solicitor's office, and Capital Video appealed to Massachusetts Land Court. The case was moved at the city's request to U.S. District Court in Springfield, in part because the company had raised civil rights issues pertaining to fair treatment of a business enterprize.
On June 1, Judge Mark Mastroianni dismissed the case in U.S. District Court, citing a failure to file court briefs by a May 31 deadline "explaining their positions as to why this action remains a justifiable case or controversy."
Attorney Lesley Rich, of Cranston, R.I., representing the company, could not be reached concerning the dismissal and whether further appeals are being contemplated.
The city and its liability insurer were represented in the appeal by attorneys Nancy Frankel Pelletier and David Lawless, of Robinson Donovan of Springfield. Frankel Pelletier could not be reached for comment, but a release on the firm's website announced the judge's decision. The release stated that the Capital Video appeal failed because of procedural errors at the administrative permitting level, and "because [the company] had not supported its Massachusetts and federal civil rights claims."
Capital Video sought to challenge the constitutionality of the Pittsfield zoning ordinance regulating Adult Entertainment Establishments.
The posted statement added: "During the course of that process, [Frankel Pelletier and Lawless] were able to show that a company with an apparent connection to Capital Video was operating a store similar, if not identical, to the one that Capital Video was allegedly attempting to open from Capital Video's chosen location. The court then dismissed the case because there was no longer an actual case or controversy for it to decide."
During its appeal, the company has opened a shop at the West Housatonic Street site called Wild Orchid, which was opened with a normal retail store permit and under the assurance the items stocked would not meet the definition of an adult entertainment store under the city's zoning ordinance.
City Permit Coordinator Nate Joyner said city inspectors have visited the shop to check for compliance for a normal retail permit.
At issue during the 2015 ZBA hearing and in the court appeal was a provision in the adult entertainment ordinance that such a store is defined as having at least 20 percent of its stock in adult items or films or gross sales in excess of 20 percent in those items.
The company contended that several of the items cited by the city to determine the 20 percent threshold may have been reached also are sold at pharmacies, department stores and elsewhere in Pittsfield without those companies required to have a special permit.
Among the allegedly misclassified items are costumes, lotions, gag gifts, marital aids and massage oils, the company contends in its filing. The original plan for the store proposed "certainly less than 20 percent" of the stock to be those items meeting the adult definition in the zoning provision, the company contends. Those items were said to include adult "devices, objects, tools, toys or electronic media."
Rich said during the appeal that the company has been transitioning away from stores that feature primarily adult video — as that business has largely gone to adult websites — and to fewer adult toys or similar paraphernalia.
Amazing.Net, at 1021 South St. which is permitted under the adult entertainment ordinance, has for several months a liquidation sale in progress, according to signs on the store.
Contact Jim Therrien at 413-496-6247.