Oral Arguments in Comfort Zone Case Conclude, Briefs Awaited

 of legal wrangling over the fate of dildos and pantyhose wrapped up Wednesday night in Upper Marlboro, where the county’s Board of Appeals will now await written briefs from both sides of a decidedly provocative case in College Park.

At the center of that case sits the Comfort Zone, a “variety store” located along Route 1 that drew heat in October from zoning officials and some residents for its overabundance of “adult products” the city claims are inconsistent with the storeowner’s use and occupancy (U&O) permit.

Levi Zaslow, the attorney representing the Comfort Zone, struck two main chords during the evening: One, he argued that the city’s own definition of a general variety store doesn’t exist; and two, he said the store’s inventory of “adult products” falls below the city’s 10-percent, code compliance threshold.

“Legally and factually, there is nothing that has been established that prevents a dildo from being sold in a variety store,” said Zaslow, later referring to merchandise found in retail stores like Spencer’s Gifts and the Shoppers World located in Greenbelt. As entered into evidence, that Shoppers World apparently carries packages of pantyhose bearing images of topless women.

“The issue is what’s being sold,” said Chairwoman Bobbie Mack, querying at least one portion of Zaslow’s assertion. “Can you buy a dildo at a 7-Eleven?” she asked, referring to photo evidence of inventory found inside the Comfort Zone. “Can you buy these hanging balls at a 7-Eleven?”

“We have to get real here,” she said at another point, making a distinction between pornographic magazines offered by gas stations and the sort of products found at the Comfort Zone.

Zaslow also brought in two witnesses — store owner Robert Carl and an unpaid employee of the Comfort Zone named Gerald Goldberg — to substantiate the claim that the store primarily supplies and sells other items outside the “adult products” domain, including hundreds of comic books, several thousand incense sticks and some 60,000 baseball cards, among other things.

“Our position is that’s a ruse. That’s a sham,” countered City Attorney Suellen Ferguson, referring to the cards and comic books.

For his part, Goldberg recounted personally selling, on average, about “two to three” baseball cards and comic books per week since last October, when the city first cited the store.

“How many Dildos do you sell in a week?” Ferguson asked Goldberg, who hesitated. “How many whips and chains did you sell in October?”

Such questions prompted dozens of objections by Zaslow, who seemed to stir some irritation within the white-walled conference room.

“Objection,” said Zaslow.

“What’s the objection?” asked Ferguson, while directing Goldberg’s eyes to photo evidence. “Are you (Zaslow) suggesting the woman isn’t touching her breasts?”

“Mr. Goldberg – Do you refer to these as comic books, too?” Ferguson followed up.

“Objection,” said Zaslow.

Goldberg, who at one point estimated the store sold “three to four” dildos a week, eventually spoke up. “The term ‘sexually explicit’ is as nebulous as you can get, to me,” he said, pinpointing a claim among some who oppose the city's involvement in what is and isn't considered acceptable for retail. 

Yet the board did express some discomfort over  Zaslow’s witnesses, asking at numerous times for harder evidence that would substantiate their words, including sales and inventory receipts.

Along with Ferguson, Chairwoman Mack was among the most vocal on this point, encouraging the Comfort Zone to produce other evidence that would counter the city’s own evidence. “We need some hard numbers,” she said more than once.

“We can’t produce what doesn’t exist,” responded Zaslow, whose client apparently lost the data when the store's computers crashed last year. 

Carl, who said he thought – and still thinks – he is within code, claimed he didn’t decide to introduce “adult material” into the store until after being forewarned by a city inspector that his store would soon be cited for failure to comply with the U&O.

That inspector, Keelah Allen-Smith, also testified during the hearing, and denied the claim.

Allen-Smith, who first inspected the Comfort Zone in February 2010, said she only returned once to the Comfort Zone in October for a re-inspection — this, after receiving complaints from residents. And, Allen-Smith said, it was during that second inspection that she found a store composed of “totally different” inventory from February, including penis pumps, love dolls, vibrators and dildos.

Carl, who co-owns the Comfort Zone, also maintained that a county inspector had told him he was “100-percent compliant” prior to being cited by Allen-Smith. ‘“Kitchy but compliant,”’ were the inspector’s words, said Carl.

Ferguson didn’t buy it, calling out Carl for hearsay. “This is inherently unreliable,” she said, in more ways than one.

To the objection of Zaslow, Ferguson also said her two unfulfilled subpoenas for the Comfort Zone’s sales records and tax returns bodes well for the city.  “It’s evidence that is out there,” she said. “That evidence would be here if it favored (the Comfort Zone).” 

Ferguson is tentatively scheduled to produce the board with a final written brief on May 25, followed up by Zaslow’s on June 8. After that point, the board will make a final ruling over whether the adult products are in violation of the Comfort Zone’s U&O.