FRANKLIN - Bikini-clad, but no nude or semi-nude dancing, is allowed at the Golden Angels Cabaret in Brandywine, Circuit Judge H. Charles Carl, III stated at a status hearing Monday.
Bikini-clad dancing was not covered in an ordinance passed by the Pendleton County Commission regulating the location of exotic entertainment businesses in Pendleton County.
The ordinance asserts an exotic entertainment business may not be located within 2,500 feet of a church, school, park, day-care center or residence nor within 2,000 feet of either a private club or bar serving alcohol or another sexually oriented business.
The ordinance also requires the business to obtain location permits, pay permit fees, refrain from selling or consuming alcohol on the premises, design exteriors to certain specifications and hire attendants to ensure no minors gain entry.
Golden Angels did not deny it was in violation of several ordinance provisions by locating within 2,500 feet of a private residence, an apartment building and a church.
On Aug. 6, 2013, the Pendleton County Circuit Court issued a temporary restraining order that prohibited Golden Angels from conducting nude, seminude or bikini-clad dancing and continued the matter pending a permanent injunction hearing.
Golden Angels decided to initiate an "instant lawsuit" by filing a complaint in District Court contending the ordinance was an unconstitutional restriction on Golden Angels owner Robin Shifflett's freedom of speech.
On Jan. 24, a federal court granted a summary judgment in favor of the Pendleton County Commission's right by ordinance to regulate the location of exotic entertainment in the county.
However, Chief U.S. District Judge John Preston Bailey had reservations about other provisions in the ordinance passed by the County Commission in April 2005.
In a footnote in the 17-page summary, Bailey warned the Commission might have "exceeded its regulatory authority in adopting the ordinance." The State Code gives the commission the power to adopt an ordinance that limits the areas of the county for locating a exotic entertainment business but "is silent" regarding powers to restrict in other ways, such as prohibiting the sale or consumption of alcohol and regulating signage and
"This court therefore questions whether (the County Commission) had the authority to pass the ordinance under West Virginia law. As that question implicates neither the First Amendment nor (freedom of speech rights in the West Virginia Constitution), however, this court feels it would be more appropriately resolved by the Circuit Court of Pendleton County," Bailey said.
On April 24, Prosecutor Kevin Sponaugle filed a motion for default judgment on behalf of the County Commission asking the judge, without the need for further hearings, to enforce the ordinance, so the cabaret could not have nude or semi-nude dancing. Bikini-clad dancing was not mentioned in the
Sponaugle asked the default be granted because the Cabaret did not file any pleading or responsive answer for the last nine months, since the temporary injunction was put in place.
"We're supposed to play by the rules. They decided to take their case to federal court, and when they lost, they came back to local court...They can't get around the location of the club since it is within 100 feet of a residence," Sponaugle said.
He asserted the sign Cabaret implies nude
"The sign needs to be changed. The windows are boarded up and the plywood should be taken down. They're going to try and play games ... before the cops come in, the bottoms could be pulled down," Sponaugle said.
Defense attorney Floyd M. Sayre III answered that the word "cabaret" does not mean naked women, and the club advertises that it is a private club, which denotes covered windows.
Sayre feels the County Commission went well beyond the authorization the state gave them to regulate nude and seminude dancing, and the ordinance did not address bikini-clad dancing, which essentially is fully clothed, Sayre said.
"Miss Shifflett in the only person in the state or in the nation who is prohibited from offering 'fully clothed' dancing in her establishment," Sayre said in the past.
Carl requested briefs from both attorneys in 30 days to address any additional issues before making a final determination.
Carl stated there will be strict conformity - everything in the ordinance will be enforced until then.