Adult business wants to operate despite cease and desist order

By Kelly Holleran | Oct 20, 2008

MARTINSBURG – An adult entertainment business and its owner have filed a motion for preliminary injunction against the Planning Commission of Berkeley County and its director, alleging it should be allowed to continue to operate its business after it was issued a cease and desist order.

The Planning Commission issued the order to TNA Entertainment in Bunker Hill on Sept. 8 because of a "Location of Exotic Entertainment Ordinance" enacted by the Berkeley County Commission Nov. 18, 2004, according to the complaint filed Sept. 16 in Berkeley Circuit Court.

But TNA claims the commission did not have the authority to pass the ordinance.

"The authority to pass an ordinance restricting the location of exotic entertainment under West Virginia Code 7-1-3jj is only granted to counties that do not have a duly constituted planning commission pursuant to subsection (b)," the suit states.

Further, TNA and its owner, Robert Musselman allege the West Virginia Supreme Court of Appeals has come to the same conclusion.

"We hold that a county commission that has created a planning commission pursuant to W.Va. Coade 8-24-1 does not have authority under W.Va.Code 7-1-3ii(b) [2002] to adopt a county ordinance limiting the areas of the county in which a business may offer exotic entertainment," the suit sites as the court's answer.

It was less than a month before he was issued a cease and desist order that Musselman was issued a use and occupancy permit on Aug. 25, according to the complaint.

He claims he was issued the permit after he made an application for a building permit, including a change of use to allow for the operation of the adult entertainment establishment, on April 8.

Although the application did not have a slot for adult entertainment establishment, Musselman alleges he informed the Planning Commission of his plan.

He is seeking the issuance of a preliminary injunction that would enjoin the enforcement of the cease and desist order.

Floyd M. Sayre, III, of Bowles, Rice, McDavid, Graff & Love in Martinsburg will be representing him.

Berkeley Circuit Court case number: 08-C-1172

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