Justices dismiss adult establishment’s appeal for 'extraordinary relief'

By Kyla Asbury | Nov 2, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals has dismissed an appeal by an adult establishment seeking “extraordinary relief.”

F.S.T. Inc., which is doing business as Tiffany’s Dolls Cabaret appealed the order of Hancock Circuit Court entered on Nov. 9, granting Hancock County Commission’s motion to quash writs and dismiss the petitioner’s appeal.

The Supreme Court dismissed the appeal under Rule 31(b) of the Rules of Appellate Procedure, finding no prejudicial error.

The memorandum decision was filed on Oct. 20.

“This appeal centers on petitioner’s challenge to respondent’s ‘Adults Only Establishment Location Ordinance,’ enacted in 2004, insofar as the ordinance provides that a business such as petitioner’s is ‘abandoned’ when the use with respect to a Premises, regardless of the intent of the user, has ceased or has discontinued for a period of more than sixty (60) consecutive days, or [there is] an explicit declaration by the user of a Premises that it has created a use with respect to the premises that is non-conforming with the Ordinance,” the decision states.

Tiffany’s closed its doors in compliance with a West Virginia Alcohol Beverage Control Administration-ordered “cooling off” period in September 2015, and its principal subsequently relinquished his license to serve alcohol.

“The business apparently remains dormant,” the memo states. “Petitioner’s counsel contacted the Hancock County Prosecuting Attorney’s Office in April of 2016, and expressed petitioner’s interest in reopening.”

An assistant prosecuting attorney informed petitioner’s counsel that the business likely would be deemed abandoned under the ordinance, but the assistant prosecuting attorney also explained that he was not offering “the county’s official position” and that petitioner should seek a formal determination from respondent.

The petitioner did not pursue the avenue suggested by the assistant prosecuting attorney, and, instead, it filed a writ of certiorari, a writ of error, an appeal and a writ of prohibition” with Hancock Circuit Court, ostensibly requesting that the circuit court declare the ordinance invalid because the county failed to establish a board of zoning appeals within the meaning of West Virginia Code 8A-8-1.2 

The petitioner asked specifically that the court issue an order prohibiting the Hancock County Commissioners from prohibiting it from operating the establishment in the same manner as it had been previously operated, as well as an order permitting it to operate its business in accordance to their prior established business model and activities.

“Respondent moved the circuit court to quash petitioner’s writs and dismiss the appeal, on the ground that respondent had taken no action with regard to petitioner’s business and the parties thus had no controversy,” the memo states. “The circuit court granted that motion, finding in pertinent part that petitioner failed to support its petition for extraordinary relief under the rubric of State ex rel. Parsons v. Zakaib…because there was no evidence that petitioner had filed an application with respondent.”

The circuit court also found that the respondent was not required to establish a zoning board of appeals because the ordinance at issue pre-dated the enactment of West Virginia Code 8A-8-1.

The circuit court noted that respondent provided an appeal directly to it, so the petitioner would not be without recourse were its application denied.

“Petitioner has neither made application with respondent and been refused, nor attempted to reopen its business and been impeded,” the memo states. “The appendix record on appeal is devoid of any action taken by respondent to frustrate petitioner’s purpose.”

The Supreme Court dismissed the appeal.

W.Va. Supreme Court of Appeals case number: 17-0016

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