Department of Housing & Community Development v. Ellwest Stereo Theaters, Inc.

Finan, J., delivered the opinion of the Court. This appeal is brought by the Department of Housing and Community Development and the Mayor and City Council of Baltimore (hereinafter jointly referred to as the City), appellants, from an order of the Circuit Court of Baltimore City (Perrott, J.) enjoining the City from denying the validity of certain permits issued to Ellwest Stero Theaters, Inc. of Maryland (Ellwest) appellee, including a permit to operate an arcade. The City contends that Ellwest is actually operating a theater, which requires a City ordinance for the construction of or conversion of a building into a theater and in the absence of ⁶⁸⁰ such authorization is operating illegally. In the memorandum opinion accompanying his order the chancellor noted that while Ellwest “is probably operating a motion picture theater as contemplated by Chapter 14, Article 32 of the Baltimore City Code, the City shall nonetheless be estopped from denying the legality of the building permits issued in the instant case.” We affirm the order of the chancellor but not on the basis of estoppel working against the City, but, because we are of the opinion that Ellwest is not operating a theater within the meaning of that term as contemplated in the City Code.

Therefore, we address ourselves to the pivotal issue, is the premise in which the appellee conducts its business a “theater” ? The subject premises designated as No. 7 N. Guilford Avenue in the City of Baltimore, as improved by Ellwest, is a ground floor location containing twenty-two individual booths. Each booth is equipped with its own individual coin-operated movie projector and screen. There is a printed regulation on the wall of each booth stating that only one person may be in a booth at one time.

From the exhibits filed in the record it would appear that a booth would accommodate only one normal size person at a time. Only one individual watches a movie on one screen which can be observed only by that individual. Individuals in the various booths may select different films in the different booths. There is no projector operator.

The projector is activated by the patron when he places a coin in the slot in his booth. In Sanza v. Maryland Board of Censors, 245 Md. 319 , 226 A. 2d 317 (1967), this Court was confronted with a similar, if not identical, “peep show” operation as in the case at bar, catering to those whose tastes run to the pornographic. There the issues were whether the films were obscene and the constitutionality of certain provisions of Maryland Code (1970 Repl. Vol.), Article 66A, dealing with the censorship of movies.

Judge Oppenheimer, writing the opinion for the Court, commented in graphic language: ⁶⁸¹ “The films are not shown in a theater, hut are viewed only by a single spectator in a booth. Margaret Meade, the anthropologist, points out the distinction between ‘the pornographic, condemned in every society, and the bawdy, the ribald, the shared vulgarities and jokes, which are the safety valves of most social systems.’ She contrasts the music hall with ‘the pornography primarily designed to be brooded over in secret.’ Mead, Sex and Censorship in Contemporary Society, New World Writing 7, 23-24 (New American Library 1953). In the case before us, the films are part of an apparatus often referred to as a peep show, in which the solitary observer pays, minute by minute, for the gratification of his voyeurism.” 245 Md. at 331 . True, the above quoted language from Sanza is purely dicta, nonetheless, we think Judge Oppenheimer’s reaction that the place containing the 21 individual booths in which the films were shown was not a theater goes to the core of the matter in the instant case.

Such a place is not a theater within the common parlance and experience of society. In IV Webster’s New International Dictionary, Unabridged, page 2617 (2nd Edition, 1957), “theater” is defined in part as follows: “1. An edifice for dramatic performances of spectacles . . . Modern theaters have two main parts: (1) The auditorium, balconies, tiers of boxes flanking the proscenium arch, with the entrance, corridors, lobbies, foyer, etc.; (2) The stage with its side wings and flies, and with dressing rooms, etc., for the actors. “2.

That which resembles a theater (sense 1) in form, use, or the like; as: (a) A place rising by steps or graduations, (b) Any room adapted to any exhibition or performance before ⁶⁸² an assembly, as a lecture, scholastic exercise, surgical clinic, etc. (c) An amphitheater . . .” (Emphasis supplied). In Black’s Law Dictionary, page 1647 (4th Edition, 1968), “theater” is defined as follows: “Any edifice used for the purpose of dramatic or