Pending appeal in federal court, Wild Orchid opens sans adult merchandise


PITTSFIELD — A shop called Wild Orchid has opened on West Housatonic Street where an affiliated enterprise was rejected last fall after city officials determined it required a special permit to sell adult entertainment products.

Meanwhile, an appeal of the Zoning Board of Appeals' determination concerning the original shop — called the Amazing Intimates & Smoke Shop — is continuing in U.S. District Court in Springfield.

At issue during a Sept. 30, 2015, ZBA hearing on the proposed store was whether the shop met the definition of an Adult Paraphernalia Store under a city zoning ordinance regulating such establishments — and likely not allowed at the proposed site, 1575 West Housatonic St.

The proposed business had drawn significant opposition from residents of the neighborhood, who spoke during the board meeting.

The company appealing that ZBA decision, Capital Video Corp., has operated the Amazing.Net store on South Street since 1995. That store, one of about two dozen similar company stores in New England and New York, was approved to sell adult items, such as videos and adult sex toy items.

Amazing.Net currently has a "liquidation" sale in progress, according to a sign on the front door, and the shop is in the process of closing.

The intent of a new Pittsfield shop, according to Lesley Rich of Cranston, R.I., an attorney representing Capital Video in its appeal, was to replace the 1021 South St. shop with a different type of business on West Housatonic Street — one that features some adult material but focuses mostly on items like clothing, smoking paraphernalia (though not tobacco); lingerie, costumes, lotions, gag gifts, marital aids and massage oils.

He added that, overall, 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.

After the ZBA's determination a special permit was needed for the proposed new shop, Capital Video Corp. first appealed in October to Massachusetts Land Court. However, the matter was moved to U.S. District Court in Springfield at the city's request, because the issues include company allegations of civil rights violations.

The case was assigned to Judge Mark Mastrioianni.

Nate Joyner, the city's permitting coordinator, said last week that Wild Orchid has opened in the small retail complex on West Housatonic Street under a regular retail permit, which is a by-right use in that zone.

Currently, the store sells clothing, smoking merchandise and other items. It is not authorized without a special permit to sell adult products, Joyner said, and inspectors have confirmed it is in compliance.

Capital Video contends in a motion filing in federal court that the city incorrectly identified the proposed shop as an Adult Entertainment Establishment under city zoning, in part because those must have at least 20 percent of its stock in adult items or films or gross sales in excess of 20 percent in those items under the ordinance.

The company contends that several of the items used 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 would include adult "devices, objects, tools, toys or electronic media."

In addition, the appeal alleges civil rights violations, claiming that the company was denied the rights other companies have been granted and that the zoning board "exceeded its authority, acted contrary to the credible evidence, made errors of law, and acted in an arbitrary and capricious fashion, thereby requiring the decision to be annulled."

The company also seeks a preliminary injunction that would allow the shop to open as originally proposed pending a decision on the appeal in federal court.

For its part, the city and its liability insurance carrier, represented by attorney Nancy Frankel Pelletier, of Robinson Donovan of Springfield, has filed a motion to dismiss the appeal, listing a number of errors or omissions in the appeal filings.

Frankel Pelletier could not be reached for comment.

Rich said that, should the company win its appeal, the Wild Orchid shop might shift at some point toward the originally planned store format. He said the two businesses are affiliated.

But the attorney added that the company "was willing to work with the city" concerning issues relating to product stock and displays. "But they just said 'no.' ''

The company's South Street store was to have been closed down, according to the court complaint, and the lease was not renewed, necessitating that the firm pay a higher monthly rent to remain in operation. The situation represents a continuing loss for the business, the company contends.

At the September hearing, ZBA Chairman Albert A. Ingegni said the issue before the board was whether the shop would meet the definition of adult entertainment under the city ordinance and require a special permit, or whether it is a normal retail operation and therefore a by-right use under local zoning.

If a permit for adult entertainment is required, the shop would also need to meet minimum setbacks requirements — 400 feet from a residential zone, school or church — and other zoning specifications.

Attorneys representing the owners of Amazing Intimates & Smoke had first been denied permits in July 2015 for a retail operation and signs, based in part on Pittsfield's adult entertainment ordinance. They then appealed the denial to the ZBA, arguing that the business did not meet the definition of an adult entertainment venue under the city's ordinance.

Former City Solicitor Kathleen Degnan provided a written opinion to city inspectors and the ZBA on whether the store met the adult entertainment definition. In it, the solicitor stated in part: "Because the application's classification of their merchandise is so vague, the board should ask the applicant for a more specific description of the items to be sold. Without said information, it is not unreasonable to consider the items potential use as being associated with sexual activity, and therefore, it is not unreasonable to opine that it is more probable than not that the applicant is operating an adult paraphernalia store."

Contact Jim Therrien at 413-496-6247.


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