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Attorney: Hold off on adult business ordinance

August 06, 2004|by CANDICE BOSELY

martinsburg@herald-mail.com

MARTINSBURG, W.VA. - Berkeley County's attempt to regulate where adult-oriented businesses can and cannot be may not pass a court challenge unless zoning is in place first, an attorney warned the county commissioners Thursday morning.

Norwood Bentley, the county's legal counsel, said he has already heard from lawyers who plan to take the ordinance to court if it is adopted.

"If you want my honest opinion, I don't think that (the ordinance) would withstand any real scrutiny before a court," Bentley said.

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The Berkeley County Commission has already held a public hearing dealing with the ordinance, which would regulate adult movie theaters, video or bookstores, strip clubs, adult novelty stores and nightclubs or bars that feature nude or semi-nude female or male dancers.

Such businesses would not be allowed to open within 2,000 feet of churches, schools, day-care facilities, public parks or recreational facilities, hotels, motels, campgrounds, bed and breakfast establishments and homes, according to a draft version of the ordinance prepared by Bentley.

Adult businesses themselves also would have to be a certain distance apart, according to the ordinance.

A section of West Virginia state code allows counties to regulate only live adult entertainment, not other kinds of related businesses, Bentley said Thursday.

He said the state law seems to assume a county already has zoning in place.

Berkeley County has no zoning and Commissioners Steve Teufel and Howard Strauss both ran their campaigns using an anti-zoning stance. Both now say the matter should be decided by voters.

Bentley encouraged the commissioners to add the adult ordinance to the county's comprehensive plan, which is not yet finished. After the comprehensive plan is adopted and if the county creates a zoning ordinance, the county could follow up on an adult ordinance "that has some teeth in it," he said.

If zoning were in place, businesses that are deemed to be problems could be handled.

"I think you can outlaw it that way. But I think you have to do it through the process of zoning," Bentley said.

The commissioners still could decide to approve the ordinance before voters tackle the question of zoning.

"It certainly sends a message to the public," Bentley said of the commissioners' support of the ordinance.

Next week at their Thursday morning meeting, the commissioners are scheduled to take action on the ordinance. Public comments will be allowed, but a specific time for the discussion has not been set.

Even if the ordinance is passed, it would not affect business at Slightly Sinful, an adult store that opened recently next to Bunker Hill Elementary School. The store sells ladies lingerie, clothing for dancers, jewelry, candles, videos and "marital aids."

Existing businesses such as Slightly Sinful would be grandfathered in and would not be subject to the rules of the ordinance.

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