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Judge to have say in Berkeley County strip club's future

September 24, 2008|By MATTHEW UMSTEAD

MARTINSBURG, W.Va. - A 23rd Judicial Circuit judge has been asked to stop the Berkeley County Planning Commission from enforcing an "exotic entertainment" ordinance as a means to shut down a new strip club in southern Berkeley County.

Judge Christopher C. Wilkes is expected to hear arguments next Wednesday about a petition for injunction filed last week by attorney Floyd M. Sayre III on behalf of TNA Entertainment LLC and Robert Musselman, according to records filed with Berkeley County Circuit Clerk Virginia M. Sine's office.

In his petition against the planning commission and county planning department director Stefanie Morton, Sayre cited a 2006 ruling in a Mineral County case by the state's high court that prohibited West Virginia counties that have planning commissions from limiting the location of adult entertainment businesses.

Sayre said in the civil action that his client received appropriate permits by August 2008 to open Paradise City Gentleman's Club at 9734 Winchester Ave. in Bunker Hill, W.Va., before receiving a cease and desist order from Morton dated Sept. 8.

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Aside from citing the county's exotic entertainment ordinance that was adopted in 2004, Morton said in the letter to Musselman that the Planning Commission would contact authorities to enforce state alcohol consumption laws that prohibit drinking in a public place.

"...if your club is not licensed by the (West Virginia Alcohol Beverage Control Administration), then the club is considered a public place and it will be the Planning Commission's intention to contact the West Virginia State Police to enforce the law with you and your patrons," Morton said.

In order to be considered a private club, the business would have to get a ABCA license, and county legal counsel Norwood Bentley III said Monday he checked with the agency and they did not have one on file for the business.

A search of the ABCA's Internet database Tuesday did not produce any record of a license being issued to Paradise Gentleman's Club or TNA Entertainment LLC. The ABCA Web site indicated the database was last updated Tuesday at 7 p.m.

Bentley on Monday said he believed the county had a good case for shutting down the business based on alcohol consumption laws, but also understood where Sayre and his client were coming from in making their legal arguments.

Nearly two years before the county's exotic ordinance was adopted by the County Commission in November 2004, Bentley advised the county commission that state law prohibited any county exotic entertainment ordinance from being enforced because the county had a planning commission, according to the Commission's December 2002 meeting minutes.

Six years ago, Bentley told then county commissioners Howard L. Strauss, Robert L. Burkhart and John E. Wright that there were other counties in the state that have planning commissions that are not "reading the legislation" that way, but instituting a location restriction on exotic entertainment was based on use and required zoning, which the county generally did not have in place, according to the meeting minutes.

A bid to adopt a zoning ordinance was overwhelmingly defeated in the May primary election this year.

By the time the exotic entertainment ordinance was adopted, Burkhart had left office. Steven C. Teufel won the seat in November 2002 and took office in January 2003.

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