NOTICE OF FINAL DECISION
OF BOARD OF APPEALS
RE: Case No.
The Pleasure Zone, Incorporated, t/a The Comfort Zone
Enclosed herewith is a copy of the Board Order setting forth the action taken by the Board of Appeals in
your case on the following date:
July 20, 2011
.
CERTIFICATE OF SERVICE
This is to certify that on
November 14, 2016 , the above notice and attached Order of the Board were
mailed, postage prepaid, to all persons of record.
(Original Signed)
Anne F. Carter
Administrator
cc:
Petitioner
Adjoining Property Owners
DPIE/Building Code Official
City of College Park
Office of Law
Other Interested Parties
BEFORE THE BOARD OF APPEALS FOR PRINCE GEORGE’S COUNTY, MARYLAND
Sitting as the Board of Zoning Appeals
Petitioner: The Pleasure Zone, Incorporated, t/a The Comfort Zone
Appeal No.: V-83-10
Subject Property: Lots 32 thru 35, Block 1, Hollywood on the Hill Subdivision, being
9721 Baltimore Avenue, College Park, Prince George's County, Maryland
Municipality: City of College Park
Counsel for City of College Park: Suellen M. Ferguson, Esq., Council, Baradel, Kosmerl & Nolan, P.A.
Counsel for Petitioner: Levi S. Zaslow, Esq., Joseph, Greenwald & Laake, P.A.
Witnesses: Jeannette Ripley, Code Enforcement Manager, City of College Park (“City”)
Keelah Allen-Smith, Department of Public Services Inspector, City of College Park
Robert Carl, co-owner of Comfort Zone
Melonique Hayden, co-owner of Comfort Zone
Gerald Goldberg, Comfort Zone employee
Ryan Curtis, resident in adjoining property
Syed Ahmad, resident in adjoining property
Stephen Sawicki, Comfort Zone customer
Heard: March 2, 2011; May 11, 2011
Decided: July 20, 2011
Board Members Present and Voting: Bobbie S. Mack, Chairperson
Albert C. Scott, Vice Chairman
Anastasia T. Johnson, Member
RESOLUTION
Pursuant to Section 27-229(a) of Subtitle 27 of the Prince George's County Code (the "Zoning
Ordinance"), this appeal was brought to the Board of Appeals, sitting as the Board of Zoning Appeals for
the Maryland-Washington Regional District in Prince George's County (the "County"), Maryland (the
"Board"), from the determination of the Department of Public Services Inspector, City of College Park, to
issue Zoning Violation Notice CPZ-0468 (the "Violation Notice"), dated October 12, 2010, citing
Petitioner with violation of Zoning Ordinance Section 27-253 (c) (Use of the property not in conformance
with the use and occupancy permit and/or accompanying site plan) and requiring that Petitioner cease use
of the premises until a valid Use and Occupancy Permit, including final approval of the permit is granted
by the Department of Environmental Resources ("DER"), on C-S-C (Commercial Shopping Center)
zoned property located at Lots 32 thru 35, Block 1, Hollywood on the Hill Subdivision, being 9721
Baltimore Avenue, College Park, Prince George's County, Maryland.1
Evidence Presented
The following testimony and record evidence were considered by the Board:
1. The subject property is zoned C-S-C (Commercial Shopping Center) and is improved with a
one-story structure with basement and parking area. Exhibits ("Exhs.") 7(B) through (E); 27(9) and (10).
1
Four motions/arguments were presented by The Comfort Zone, all of which were denied by the Board.
Appeal No. V-83-10
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2. The subject property is located within the municipal limits of the City of College Park (the
"City"). Exh. 6.2
3. The subject property is owned by Allen J. Rackers; The Pleasure Zone (trade name, The
Comfort Zone) is the occupant. Exhs. 4 and 27(4).3
4. On December 3, 2009, an application for plan examination and permit was submitted to the
County by Melonique Hayden on behalf of The Pleasure Zone. Exh. 27(4).
5. On December 18, 2009, Permit #34792-2009-U-00 was issued to the Pleasure Zone for a
"variety/department store per 3114-99-CU/02" by Permit Reviewer Michelle M. Hughes of The
Maryland-National Capital Park and Planning Commission ("M-NCPPC"). Exh. 27(2).
6. According to Exhibit 27(3), on December 18, 2009, a report generated for Permit 347922009-U by Permit Reviewer Michelle Hughes stated:
"12/18/09 - Per my conversation with the applicant the proposed use does not include
an adult store. No adult products would be sold at this establishment.4 Products similar
to a dollar store would be for sale. Variety/department store.… [floor plan] Not
required for a variety/department store." 5
In furtherance of the permit process for Permit #34792-2009-U, Ms. Hughes stamped "Ok for
variety/department store per 3114-99-CU/02". Exh. 27(2).
7. On December 18, 2009, Permit # 34792-2009-U for a variety/department store was approved
by M-NCPPC for The Pleasure Zone. Exh. 27(4).
8. Melonique Hayden testified that it was her understanding also that the subject business would
be for a variety store.6
9. The Prince George's County Department of Environmental Resources issued a Certificate of
Occupancy for case number 34792-2009-00 ("Occupancy Permit"), effective date January 4, 2010, to The
Pleasure Zone describing the purported business use was for "Clothing, Retail, Gifts, Novelties &
Souveniers, Shoes/Ret., Variety Store." Exh. 4.
10. In January 2010, the City's Public Services Department apparently became aware of the
operation of the "Comfort Zone." Exh. 44, page 1.
11. Inspector Keelah Allen-Smith testified that in February 2010 she inspected The Comfort Zone
as part of the City's annual occupancy permit process at which time she did not observe any inconsistent
business use for sales or any issues of safety and zoning violations related to the premises. She testified
that her review of the Occupancy Permit for the business indicated that the business use was for sale of
clothing, retail, gifts, novelties and souvenirs, shoes/ret variety store. She testified that at that time only
one floor was in use for sales and she observed store items such as certificates, family movies, card
games, tee shirts, oils, lotions, gift bags, a few swim suits on the first floor.7
12. Inspector Allen-Smith testified that after receiving numerous complaints from residents she
reinspected the subject property on October 12, 2010 and observed on "two floors" the types and items on
open display in the store reflected in Exhibits 24(A) thru (N) and 26(A) thru (W). She testified that she
2
Delegation of zoning enforcement authority within its boundaries was granted to the City of College Park by a Memorandum
of Understanding (Council Resolution 57-2002). Exh. 22.
3
Memorandum of Law submitted by the City of College Park stated that The Comfort Zone was co-owned by Robert Carl and
Melonique Hayden. Exhibit 44.
4
Melonique Hayden testified that she did not recall saying that there would be no adult products sold at the establishment.
5
There is no statutory definition of general/variety store in the Prince George's County Code.
6
Exhibit 27 reflects that Melonique Hayden filed the use and occupancy application on behalf of The Comfort Zone.
7
Ms. Allen-Smith testified that she inspected hundreds of retail businesses in the City.
Appeal No. V-83-10
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also observed a sign at the front entrance of the property that prevented entry to anyone under 18 years of
age without a parent. She testified that the sign was not present during her visit of the subject property in
February 2010.8
13. Exhibits 38 (A) through (C) depicted the location and wording of the sign.
14. On or about October 12, 2010, Zoning Violation Notice ("Violation Notice") was issued to
The Comfort Zone by the City of College Park for violation of Section 27-253(c): Use of the property [is]
not in conformance with the use and occupancy permit/or accompanying site plan. The corrective action
called for [is] cease use of the premises until a valid use and occupancy permit, including final approval
of the permit is granted by DER. Pictures of the alleged violations in the store were depicted in the
Violation Notice. The compliance date was November 13, 2010. Exh. 3.
15. On October 18, 2010, the Violation Notice was appealed to the Board of Appeals. Exh. 1.
16. Code Enforcement Manager Jeannette Ripley testified that on November 18, 2010, she visited
the subject property, and similar to Inspector Keelah Allen-Smith, observed the same types of
merchandise depicted in Exhibits 24 and 26.9
17. Ms. Ripley explained that through its Public Services Department the City enforces the
County's Zoning Code as well as the City's rental and non-commercial property occupancy permit
process. She explained that while the County issues use and occupancy permits which are renewable
upon an event such as change of owner/occupant, the City also issues an annual occupancy permit under
its own code, under which it inspects commercial properties.
18. Inspector Allen-Smith testified that she could not recall any other general stores in the City
with similar warning signs for 18 and older as posted by The Comfort Zone.
19. Gerald Goldberg testified that in October 2010 he worked at The Comfort Zone where a
variety of items, including comic books for all age brackets and baseball cards, as well as the merchandise
depicted in Exhibits 24 and 26, were sold. He explained the purpose of the signs found in Exhibit 38 was
to indicate who was permitted to enter the store because of the general mix of merchandise sold in the
store.
20. Robert Carl testified that the use and occupancy permit was for general merchandise and
believed that items sold at The Comfort Zone were similar to those sold by Spencer World Merchandise
located in the Beltway Plaza. He testified that business and/or tax records and inventory records for the
business no longer existed.
21. Fifteen residents of 9808 47th Place, College Park, Maryland, expressed opposition to the
"pornographic and adult materials" sold at The Comfort Zone. Exh. 28.
After hearing all the testimony and reviewing the evidence presented, the Board finds that:
1. The subject property is located at 9721 Baltimore Avenue, College Park, Prince George's
County, Maryland, and is C-S- C (Commercial Shopping Center) zoned property located at Lots 32 thru
35, Block 1, Hollywood on the Hill Subdivision.
2. Use and Occupancy Permit #34792-2009-U-00 was issued for the operation of The Comfort
Zone.
3. Zoning Ordinance Section 27-253(a)(1) prescribes that use of a building, structure and land
may not be permitted without a valid use and occupancy permit.
8
Ms. Allen-Smith believed that The Comfort Zone was being operated as an adult book store as defined in Section 27-902 of
the County Code, but it is not necessary for the Board to reach that conclusion in reaching a determination in this matter.
9
Mr. Carl testified that the photographs in Exhibits 24 and 26 depicted merchandise in the store in 2010.
Appeal No. V-83-10
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4. On or about October 12, 2010, Violation Notice CPZ-0468 was issued to The Comfort Zone
for violation of Section 27-253(c) for use of the property not in conformance with the use and occupancy
permit and/or accompanying plan. Exh. 3.
5. To comply with Section 27-253, the use must be consistent with the use understood at the time
of issuance of the permit.
6. The County (and City) believed the store was to be used as general variety store as they
commonly understood that to be in the County. Review of the history of the permit application (Exh.
27(4)) clearly states that a variety store was intended to be for the business use of The Comfort Zone (and
highlighted a contemporaneous discussion that was apparently held on the type of merchandise that would
and would not be sold at the establishment). We give substantial weight to the testimony of both
Inspector Keelah Allen-Smith and Code Enforcement Manager Officer Jeannette Ripley that based on
their experience and common understanding of what constituted a variety store in the County, the many
items found in Exhibits 24 and 26 were not the type of merchandise found in such stores. The Board does
not believe that the sign displayed in Exhibit 38 is a sign commonly associated with a general variety
store.
7. No one disputes that on the date the Violation Notice was issued the store displayed mixed
items, including like those found in Exhibits 24 and 26. We note that no evidence was offered to show
that a general variety store with a similar array of mixed items was issued a use and occupancy permit
similar to the one received by The Comfort Zone.
8. The Board agrees that the City had a responsibility, and fulfilled that responsibility, to inspect
commercial establishments within the City to determine annual compliance with safety requirements and
consistency with the business operations described in its use and occupancy permits.
BE IT THEREFORE RESOLVED, unanimously, that the determination of the Department of
Public Services Inspector, City of College Park, to issue Zoning Violation Notice CPZ-0468, dated
October 12, 2010, be and is hereby AFFIRMED.
BOARD OF ZONING APPEALS
By:
(Original Signed)
Bobbie S. Mack, Chairperson
NOTICE
Within thirty (30) days from the date of this decision, any person, firm, corporation, or
governmental agency who was a party to the Board's proceedings and is aggrieved by its decision may file
an appeal to the Circuit Court of Prince George's County.