Recht
NEW CUMBERLAND – Circuit Judge Arthur Recht took a while to figure out how to apply zoning law to a kinky Web site, but at last he caught on.
Recht signed an injunction July 10 to prevent activities that Rosemary Susko advertised at Rosemont Manor, a mansion in Weirton.
He listed them: "BDSM, fetish, master/slave, lesbian/gay trans-gender, fem-dom, leather, swingers, nudists, CFNM, barbeques, munches, parties, meet-and-greets, play space, lectures, seminars, demonstrations, schools ..."
He wrote that any Web site inviting attention to those activities would be "removed forthwith and shall not appear on the internet again unless authorized by this court."
He already had entered an oral order to that effect in April.
Susko scored a partial victory. Recht ordered Weirton to issue a license for Rosemont Manor.
The city revoked the license last year due to Web site content. On the web, Susko called the place Our House on the Hill.
Recht stressed in his order that the license would cover only a bed and breakfast with weddings and receptions.
When he took the case, he knew nothing about Web sites.
He jumped into the electronic age at a hearing April 18 in Hancock County courthouse at New Cumberland.
"Is it permissible to deny a business license and a zoning application simply based upon a Web site with no other proof that what is recited in the Web site actually occurred?" he asked. "I don't know anything about Web sites. I have a computer and it's all prepared for me by other people and I push buttons and it works."
Attorney William Ryan of Wheeling represented Susko.
"Even if you assume facts most favorably to the respondents about an expansion of use, under no circumstances may the entire business be shut down in any event," Ryan said.
He said Susko already had lost more than $90,000.
For the city, John Yeager Jr. of Weirton said Susko did not deny the activities at a zoning hearing. He said Susko could obtain a license for a sexually oriented business.
"But not in that zone," he said. "That's a residential zone.
"Nobody ever told us that somebody was going to come there and do clothed female naked male meetings or anything like that."
Ryan asked Recht to permit Susko to use her business for social events, bed and breakfast, weddings, photo sessions and historic tours.
"I suspect what she really wants to do is, do what she wants and tell us that it was okay," Yeager said. "It was approved by the court."
"It doesn't take a genius to figure out that maybe photo session in other areas may be beyond what's done at a wedding reception," Recht replied.
"We have to protect the people in that zone up there," Yeager said.
Ryan said, "You can't revoke somebody's zoning permit on a nonconforming pre-existing use. You can't prohibit all the uses."
Yeager said Susko essentially asked to continue to break zoning laws.
"I also worry that she will say, if she is not sponsoring this but simply rents to people who do it, then she's not responsible," Yeager said.
Ryan then stressed, "We are here on a zoning enforcement matter, not a morality enforcement matter."
"If somebody wants to be naked in their bed and breakfast room, they have just as much right to do that as if they were in their own home," he said. "If the Web site made things available like wireless internet access as an attraction, croquet and sand volleyball, would we still be having the same conversation?"
Recht scanned the activity list.
"With the exception of a CFNM party -- I have no idea what that is -- everything else there presumably are subsumed within a bed and breakfast, wedding and reception center," he said.
Ryan said, "Any of these that are alleged, are they Ms. Susko's use of the business or are they her guests' use of the business?"
Yeager said, "We think that Our House on the Hill, all those sites ought to come down."
Recht said he contemplated an order reserving to Susko the right to use the property as it was grandfathered, and no activity as described on websites could be conducted until further order.
Yeager persisted: "Shall the Web sites come down, your honor?"
Recht said, "Yes. Is that how you do it? Is that what you say?"
Yeager said, "It's up to them to do it."
Recht got frustrated.
"No, is that the language you use?" he asked. "Is that how you eliminate them? God damn."
He then excused himself.
"This cyber stuff, I don't understand it," Recht said. "You push a button and it comes off?"
Yeager said, "I couldn't even set up a joint phone call."
Recht said, "The Web site shall be removed, taken down, eliminated. I don't know what verb to use.
"If there's anybody in this audience that understands this cyber business, tell me. I'll appoint you as an expert witness to assist me. I can't pay you but ..."
Ryan objected. He said no Web site was relevant to any zoning law.
"It has nothing to do with an activity and we are here all about activity, not expression or advertisement," he said.
Recht said he would enter an order on a limited basis while he waited for minutes of the zoning hearing and a transcript.
He signed an order July 10 declaring that Susko could not carry on, allow invite or advertise for others the activities on his list.
He instructed Ryan to inform him and Yeager if he intended to introduce additional testimony. He instructed Yeager to send him the zoning file and a hearing transcript. He noted and saved Susko's objection to adverse portions of his order.