Strip club wants Kanawha closure decision overturned

CHARLESTON – A former Cross Lanes strip club wants a Kanawha County judge to overturn the decision of some county agencies and allow the club to reopen.

West Virginia Country Club, doing business as The Pink Pony, says the decisions of the Kanawha County Planning Commission and a subsequent affirming decision by the county Board of Zoning Appeals to keep the club closed are illegal.

"Specifically, the decision of the BZA is illegal, as it, and the decision of the Planning Commission, were made in violation of the club's due process rights," the suit, filed Aug. 31 in Kanawha Circuit Court, states. "Moreover, the BZA and Planning Commission both applied erroneous principles of law and were plainly wrong in their factual findings, which were arbitrary and capricious."

Responding to the suit, Kanawha County Commission President Kent Carper said the county must uphold the law.

"Despite the lawsuit filed by the West Virginia Country Club, aka 'The Pink Pony' and realizing it will incur substantial legal fees, my position has not changed," Kanawha County Commission President Kent Carper said. "I believe it is our responsibility to uphold the rule of law.

"Additionally, it is important the people of Cross Lanes know we respect their property rights as there was significant opposition from the neighborhood and a clear violation of our ordinance. Unfortunately this was not unexpected."

According to the complaint, The Pink Pony opened in April 2001 as an adult entertainment establishment. It didn't require a license to be an adult entertainment establishment then, but it did obtain a license to sell alcohol. It had that license until 2003, when two employees were accused of committing "illegal acts." Then, the state Alcoholic Beverage Control Commission revoked that license.

Still, according to the suit, the Pony remained open as a "juice bar" three nights a week, still offering adult entertainment.

Also, the suit states, the alleged charges against the two employees were dismissed in 2005.

In 2008, after the required five-year waiting period after the ABCC license was revoked, the club reapplied. That required a letter from the county commissioner saying the location of the club is compliant with zoning. In February 2009, the Pony requested such a letter.

On March 9, Kanawha County Planning Director David Armstrong wrote a letter stating the county wouldn't provide such a letter to the state ABCC because the county believes the club "had not operated as a viable Adult Entertainment Establishment for many years, even though (the club) has maintained (its) business license."

Armstrong also noted the club was too close to another establishment that already sold alcohol.

After some back-and-forth regarding proof that the club had been open since 2003, the club and its reopening was listed on the agenda for an April 8 Planning Commission meeting. No one from the club was able to attend. Still, a discussion about the club occurred, according to the complaint.

In the complaint, the club says Carper "launched into a 20-minute diatribe against the club, without objection by other Planning Commission members, in which he directed the testimony of witnesses to prejudicial issues with no legal relevance."

The issue was tabled until a May 13 meeting. But a conflict kept club officials from that meeting, too. Again at that meeting, according to the complaint, a discussion about the club took place. Kanawha County Chief Deputy John Rutherford testified then that deputies had seen the club's lights on and that deputies had seen people going in and out of the club from time to time.

At the May 13 meeting, the commission voted to affirm Armstrong's ruling that the club could not comply.

The club appealed to the BZA on June 12. On July 20, a public hearing took place on the matter. The club says the BZA wouldn't allow new evidence – including affidavits from workers, dancers and former customers. The BZA voted against the club 4-1.

The club wants Judge Duke Bloom to issue a writ of certiorari and issue judgment that the actions of the BZA and Planning Commission were illegal.

The Pink Pony is represented by S. Michael Holmes of Atlanta and Tanya P. Tremble of Morgantown.

Kanawha Circuit Court case number 09-AA-149