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Judge says Berkeley County's exotic entertainment law is 'invalid'

October 02, 2008|By MATTHEW UMSTEAD

MARTINSBURG, W.Va. -- Berkeley County's four-year-old "exotic entertainment" ordinance was deemed "invalid" by a 23rd Judicial Circuit judge who said in a hearing Wednesday that he was bound by a 2006 state high court ruling that doesn't allow counties with planning commissions to restrict the location of strip clubs.

"I don't really like it," Judge Christopher C. Wilkes told county legal counsel Norwood Bentley III in a brief hearing involving the operation of Paradise City Gentleman's Club at 9734 Winchester Ave. in southern Berkeley County.

Attorney Floyd M. Sayre III, on behalf of TNA Entertainment LLC and Robert Musselman, had asked the judge in a petition for injunction to stop the county's planning commission from attempting to enforce the ordinance, which was adopted by the county commission in 2004.

Two years earlier, Bentley had advised the county commission they had no authority to adopt the ordinance, and in court Wednesday acknowledged his legal position was "unenviable," considering state law.

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Bentley said the law upheld by the Supreme Court of Appeals of West Virginia involving a Mineral County, W.Va., case serves as an incentive for counties not to form planning commissions, a panel that reviews commercial and residential development applications and helps guide development.

Wilkes, Bentley and Sayre seemed all in agreement that about the only way the county could regulate the location of strip clubs currently was through the adoption of a zoning ordinance.

Proposed county land-use regulations that would have prevented Paradise City from opening were overwhelmingly defeated by voters in the May primary election.

Sayre was sympathetic to the concerns of residents and county officials who attended the hearing in opposition to the strip club, which he said has been operating since Aug. 25.

"This industry does need regulation," Sayre said after the hearing. "However, the legislature and the Supreme Court have tied the hands of the county commission."

Aside from the validity of the ordinance, Wilkes questioned Bentley how the county could legally enforce the state liquor laws that County Planning Director Stefanie Morton had also cited in a cease and desist letter to the owner of the strip club property on Sept. 8.

Bentley said Wednesday that the adult entertainment business is considered a public place because it does not have a license to serve or sell alcohol and that he was prepared to contact the police to uphold state laws that prohibit public consumption of alcohol.

Sayre said Wednesday that his client was not serving or selling alcohol at the strip club and the alcohol-related laws didn't apply.

"It's a BYOB (Bring Your Own Beverage)," Sayre said. "It's our position that we're not doing anything illegal."

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