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Eatery, city in court over video lottery machines

January 05, 2006|by CANDICE BOSELY

martinsburg@herald-mail.com

MARTINSBURG, W.Va. - A dispute over whether a downtown restaurant in Martinsburg illegally installed video lottery terminals - which are similar to slot machines - was heard in court Wednesday, with the city alleging that a denial to open an "executive lounge" and "martini bar" in the restaurant equaled a denial to install the machines.

Circuit Judge David Sanders listened to nearly two hours of arguments and testimony in the case, which involves the recently opened Counsellor's Grill at the intersection of Burke and College streets, one block off the town's main north-south thoroughfare of Queen Street.

Sanders did not make a ruling after the hearing and did not indicate when he might reach a decision.

Carter Craft, who owns Tatra Restaurant Inc., and Matthew St. Martin, who owns The Counsellor's Grill - which is overseen by Tatra - filed a petition last month against city officials, including Planner/Engineer Mike Covell, Code Enforcement Officer John Whitacre and the Martinsburg Board of Zoning Appeals.

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In the petition, the men are asking that the city not be allowed to prosecute them for installing the machines. A citation was issued Nov. 29 charging The Counsellor's Grill and Tatra Restaurant Inc. with a misdemeanor offense of "illegal placement of gambling machines without proper zoning," according to a copy of the citation included in the case's court file.

The citation carries a penalty of up to $300 a day for each day the machines remain in place.

During the hearing, attorneys and witnesses in the case discussed when the restaurant, formerly the site of a restaurant named The Peppermill, was sold, when alcohol and video lottery terminal licenses were acquired, applications filed to reopen the restaurant, a city law passed dealing with video lottery terminals and a Board of Zoning Appeals decision that prohibited the restaurant from opening a "martini bar" and an "executive lounge" on the second floor of the building.

The Counsellor's Grill is now open. No video lottery terminals were in place when the building housed The Peppermill.

In an application filed Sept. 26, 2005, in the city planning office, St. Martin said he wanted to reopen a full-service restaurant in the building as well as an upstairs executive lounge, which, he wrote, "will be closed off and separated from view and noise from the downstairs dining and will contain a Martini Bar, five slot machines, plasma TVs, video surveillance system and lounge seating."

On Oct. 4, 2005, members of the Martinsburg Board of Zoning Appeals held a hearing on the request. During that hearing, a pastor of a Martinsburg church and two owners of downtown businesses spoke against the request to install video lottery machines.

Board members voted unanimously to allow St. Martin to reopen the restaurant but voted 3-2 against the plans for the second floor, saying "it would be detrimental to the surrounding development," according to a written decision issued by the Board.

"Therefore, Appellant's application to expand the nonconforming use of the upstairs to an 'executive lounge' and 'martini bar' is denied," the written decision states.

It did not specify that slot machines were prohibited, but before voting, three Board members said they opposed slot machines being placed in the restaurant.

The machines were installed Oct. 26 and 27, and were activated for playing use Nov. 4 - a month after the Board of Zoning Appeals held its hearing.

Craft, represented by attorney Michael Scales, and St. Martin, represented by attorney Kathy Santa Barbara, argued the machines were lawfully installed. While testifying, St. Martin and Craft both said they complied with the ruling by not opening an executive lounge or a martini bar.

They said the video lottery terminals are in a separate room from the upstairs dining area. The room that contains the machines also houses a bar, they said.

A license to operate the video lottery terminals was issued Oct. 4, 2005, St. Martin testified.

Scales also pointed out during the hearing that the Nov. 29 misdemeanor citation was issued one day after the city passed an ordinance prohibiting video lottery terminals from opening within 1,000 feet of, among other sites, a school, church, park or playground. Under the ordinance, machines would not be allowed at The Counsellor's Grill, however, the ordinance has a "pre-existing use" clause that states businesses with machines in operation on or before the ordinance was passed do not have to comply.

The city argued that that ordinance is irrelevant and that its argument centers on the alleged violation of the Board of Zoning Appeals' decision.

Andy Blake, attorney for the city, said representatives of The Counsellor's Grill had 30 days to appeal the Board of Zoning Appeals' decision, but did not.

Scales said no appeal was made because the decision did not mention video lottery terminals.

Also, Craft testified, no law was on the city's books at that time regulating where video lottery terminals could be placed. By the time such a law was adopted Nov. 28, the video lottery terminals at The Counsellor's Grill had been operating for more than three weeks.

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