A proposed strip joint in Brandywine has gone to federal district court to gain the right to open, claiming the Pendleton County Commission has suppressed the owner's First Amendment rights to "express herself in her dance."
Pancakes, Biscuits, and More, LLC, also doing business as the Golden Angels Cabaret at 12590 Blue Gray Trail, filed the suit against the Pendleton County Commission in U.S. District Court for the Northern District of West Virginia on Aug. 13.
County Commissioners Gene McConnell, Carl Hevener and Randy Roberson obtained a preliminary injunction granted by temporary County Circuit Judge Thomas Keadle against the opening in accordance with a county ordinance regulating the location of businesses offering exotic entertainment.
The federal suit seeks to declare the county ordinance unconstitutional under the U.S. Constitution's First Amendment and the guarantee of free speech in the West Virginia Constitution.
The April 2005 ordinance was passed and signed in an "effort to promote the health, safety, morals and general welfare of the citizens of Pendleton County" by then-Commissioners Robert Grimm, Kelly Hartman and Robert Armentrout.
State code gives county commissions the authority to regulate the location and signage of exotic entertainment businesses.
The cabaret, listed as owned by Robin Shifflett of Harrisonburg, violated the ordinance by locating within 2,500 feet of a private residence and an apartment building. A church is also in "close proximity" according to Prosecuting Attorney Kevin Sponaugle who presented the case in Circuit Court on Aug. 4.
The ordinance also prohibits the sale or consumption of alcoholic beverages in a business offering exotic entertainment. The cabaret, described as a "gentleman's club" advertises BYOB (bring your own bottle) on its sign.
The sign also exceeds a local 10-foot height limitation and contains female silhouettes. The ordinance prohibits the silhouette, drawing or a "pictorial representation in any manner" on a sign which can only contain the name of the enterprise.
The cabaret was slated to open on July 25 when County Commission president Gene McConnell hand-delivered a copy of the ordinance to the establishment. The business had not obtained a location permit, had not paid a $500 initial permit fee, and was not in compliance with the ordinance, McConnell said.
The opening was delayed, but later advertised as Aug. 1.
The complaint for a temporary restraining order, a preliminary injunction and a permanent injunction was served by Sheriff Donald L. Hedrick on Aug. 1.
In Circuit Court, Defense Attorney Floyd Sayre challenged the validity of the ordinance and said the cabaret was going to open up without any nude or semi-nude dancing.
"It would just be a bikini bar with something to cover up what shouldn't be uncovered," said Sayre, who indicated the Pendleton County ordinance goes beyond what the state allows.
Prosecutor Kevin Sponaugle said "We have a valid ordinance that allows McConnell to ask for an injunction."
At no time did anyone associated with the proposed establishment contact anyone of authority in the county and inquire about exotic entertainment.
"They were trying to fly under the radar and attempt to deceive and cover up what the true establishment would be," Sponaugle added.
The ordinance does not ban houses of exotic entertainment; it just sets the parameters in feet, etc. to regulate the locations.
"We are doing what we were elected to do to uphold the laws and ordinances validly passed in our county," Sponaugle said.Sayre said the ordinance was against his client's First Amendment right to express herself freely through dance.
Sayre later admitted to Keadle that ultimately the cabaret would include strip dancing.
Sayre said if the cabaret did not immediately offer nude dancing, then it was not established as an exotic entertainment facility and should not come under the ordinance.
"Our position is that we should be able to open," he insisted.
Judge Keadle said, "I don't agree with your position and a temporary injunction is granted."
The silhouette sign is still in place with a temporary sign below it asking for local support and stating, "not giving up!"
He is in the process of working on a response to the suit which will be heard in federal court at a later date, Sponaugle said last week.
Local churches are circulating petitions to prohibit the opening.