Commission gets court victory
FRANKLIN – On Jan. 24, a federal court granted a summary judgement in favor of the Pendleton County Commission’s right by ordinance to regulate the location of exotic entertainment in the county.
However, Chief U.S. District Judge John Preston Bailey had reservations about other provisions in the Ordinance passed by the County Commission in April 2005.
In a footnote in the 17-page summary, Bailey warned that the Commission might have “exceeded its regulatory authority in adopting the ordinance.” The State Code gives the commission the power to adopt an ordinance that limits the areas of the county for locating a exotic entertainment business but “is silent” regarding powers to restrict in other ways, such as prohibiting the sale or consumption of alcohol and regulating signage and parking.
“This court therefore questions whether (the County Commission) had the authority to pass the ordinance under West Virginia law. As that question implicates neither the First Amendment nor (freedom of speech rights in the WV Constitution), however, this court feels it would be more appropriately resolved by the Circuit Court of Pendleton County,” Bailey said.
Golden Angels Cabaret, a strip club operated by Pancakes, Biscuits and More, LLC located in Brandywine, filed a lawsuit against the Pendleton County Commission in U.S. District Court for the Northern District of West Virginia on Aug. 13.
The federal lawsuit argued a county ordinance regulating businesses offering exotic entertainment is unconstitutional under the U.S. Constitution’s First Amendment and the guarantee of free speech in the West Virginia Constitution.
The ordinance asserts an exotic entertainment business may not be located within 2,500 feet of a church, school, park, day-care center or residence nor within 2,000 feet of either a private club or bar serving alcohol or another sexually oriented business.
The ordinance also requires the business to obtain location permits, pay permit fees, refrain from selling or consuming alcohol on the premises, design exteriors to certain specifications and hire attendants to ensure no minors gain entry.
Golden Angels did not deny it was in violation of several Ordinance provisions by locating within 2,500 feet of a private residence, an apartment building and a church.
On Aug. 6, 2013, the Pendleton County Circuit Court issued a temporary restraining order against Golden Angels from conducting nude, seminude or bikini clad dancing and continued the matter pending scheduling a permanent injunction hearing.
Golden Angels decided to initiate an “instant lawsuit” by filing its complaint in District Court contending the Ordinance was an unconstitutional restriction on Golden Angels owner Robin Shifflett’s freedom of speech.
Bailey stated in his summary judgement that both parties agreed there are “numerous parcels of real estate for sale and lease throughout the county where the cabaret could by located” and the ordinance does not deny the cabaret the “reasonable opportunity” to open and operate within Pendleton County.
County prosecutor Kevin C. Sponaugle agreed the matter is still pending in state court. Also, the cabaret has the right to file a motion to appeal the summary judgement to the Fourth Circuit of Appeals located in Richmond within 30 days.
County Commissioner Gene McConnell was “very very pleased” that the process went in the county’s favor, as it indicated a local government body still has control over the county’s destiny. “I certainly want to give credit to the former County Commission for their foresight in passing the ordinance in April 2005 after the shut down of the Cadillac Ranch following its owner, Lawrence Scible’s, indictment on multiple criminal charges,” McConnell said.
Cabaret attorney Floyd M. Sayre, III, said Wednesday he and his client, Robin Shifflett have not completely decided what their next step will be – whether to appeal, go to state court or both concurrently. “Judge Bailey indicated there might be a problem in the Ordinance that would be better addressed in state court,” Sayre said.
The County Commission went well beyond the authorization the state gave them to regulate nude and seminude dancing, but the county ordinance did not address bikini-clad dancing which essentially is fully clothed, Sayre said.
“Miss Shifflett is the only person in the state or in the nation who is prohibited from offering ‘fully clothed’ dancing in her establishment,” Sayre added.