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November 24, 2008

Pulaski considers appeal on Adultland XXX

By Nancy Lowry

Adultland XXX in Pulaski Township is open and plans to stay that way — with the blessings of Commonwealth Court.

The adult-themed business, located on Route 422 in Pulaski Township, prevailed in the state appeals court. Seven of the nine judges heard arguments Oct. 15 and Wednesday ruled in favor of Adultland XXX.

The township supervisors are considering their options, which include appealing the ruling to the state’s supreme court.

“They said as we felt all along, there were due process violations,” commented Pittsburgh attorney Joseph Moran, who represents Adultland XXX owner Eric Boron.

“The (township’s) ordinance did not give proper notice to (Boron) on what he must do to follow the law.”

In addition to establishing when an adult-themed business may operate — from 8 a.m. to 10 p.m. Mondays through Saturdays — the ordinance requires such businesses to be closed on Sundays and legal federal and state recognized holidays.

“But the statute did not refer to specific days to close, did not clearly define what a state-recognized holiday is and did not identify how anyone is to determine the meaning of state-recognized holidays. That has been our position all along and the court agreed.”

Moran pointed out the ordinance used what he called an old banking schedule, which he said listed 35 to 38 holidays plus every Saturday afternoon. Flag Day, Moran said, is recognized as a holiday only in Pennsylvania.

“It is not included in the (Pennsylvania) Liquor Code as an official holiday, most courts are open on that day and it is an optional holiday under the banking statutes.”

Moran said it was clear from the start that Boron had tried to comply with Pulaski Township’s ordinance, which was enacted in 2000.

After being cited for remaining open on Columbus Day 2005, Moran said, Boron, a resident of Salem, Ohio, hired a lawyer to research holidays. A list was found and posted at Adultland XXX. The business was closed every day listed, he said. But the list did not include Flag Day.

“He opened and the police came calling,” Moran said.

Since this constituted the second violation in a 12-month period, Boron’s business license was revoked.

Moran said the revocation was appealed to the township supervisors.

On May 29, 2007, the supervisors affirmed the police action. Under terms of the ordinance, the business must close for a year. However, the ordinance allows the business to remain open through the appeals process.

Boron appealed to the Lawrence County Common Pleas Court, where President Judge Dominick Motto sided with the township.

The case next was appealed to Commonwealth Court and argued before a three-judge panel. Adultland’s attorney argued that the ordinance is unconstitutionally vague and that the common pleas court had not considered evidence that an agreement had been made between Boron and the township that there had been no first violation.

Without issuing an opinion, the judges referred the case to the full court.

In court documents, Judge Mary Hannah Leavitt wrote that the Pulaski Township ordinance is “unconstitutionally vague because it does not identify what constitutes a state-recognized holiday.”

Pulaski Township Supervisor Chairman Sam Varano said he and Supervisor Tom Gates last night participated in a conference call with attorney Bernie Matthews of Pittsburgh, who is handling this case for the township.

“He told us our options, which include appealing the ruling and amending the ordinance,” Varano said. “We haven’t yet decided what we’re going to do. The ruling wasn’t what we wanted to hear.”

With 30 days to appeal, he said, the supervisors may call an executive session to discuss their options before their Dec. 15 meeting.

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