FRANKLIN, W.Va. — Bikini-clad — but no nude or seminude dancing — will be allowed at the Golden Angels Cabaret in Brandywine, W.Va., Circuit Judge H. Charles Carl III ruled at a status hearing Monday.
The ruling is just the latest in the back-and-forth legal battle between the cabaret club and Pendleton County, which has sought to keep the club from opening, or at least restrict its risqué format.
Bikini-clad dancing is not covered in a 2005 county ordinance regulating the location of exotic entertainment businesses.
The ordinance asserts an exotic entertainment business may not be 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 other sexually oriented business.
Golden Angels did not deny it was in violation of several of the ordinance’s provisions by locating within 2,500 feet of a private residence, an apartment building and a church. On Aug. 6, the Pendleton County Circuit Court issued a temporary restraining order prohibiting the club from conducting nude, seminude or bikini-clad dancing.
The court continued the matter pending a permanent injunction hearing.
Golden Angels filed a complaint in district court contending the ordinance was an unconstitutional restriction on club owner Robin Shifflett’s First Amendment rights.
But 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 commission’s ordinance. In a footnote in the 17-page summary, Bailey warned that the commission might have “exceeded its regulatory authority in adopting the ordinance.”
The West Virginia State Code gives the commission the power to adopt an ordinance that limits the areas of the county in which an exotic entertainment business may be located, but is silent regarding powers to restrict it in other ways.
Last week, Pendleton County Prosecutor Kevin Sponaugle filed a motion for default judgment on behalf of the commission, asking the judge to enforce the ordinance so the cabaret would be banned from featuring nude or seminude dancing. Bikini-clad dancing was not mentioned in the ordinance.
Sponaugle asked that the default be granted because the cabaret had not responded since its loss in federal court.
“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 word cabaret implies nude dancing and that the sign must be changed. Also, he said 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.
Golden Angels’ attorney, Floyd M. Sayre, answered that the word “cabaret” does not mean naked women, and the club advertises that it is private, denoting covered windows.
Carl ruled to keep the temporary injunction in place with the caveat that bikini-clad dancing would be allowed until a permanent ruling is made. He asked Sponaugle and Sayre to file any briefs within 30 days to address additional issues before making a final determination. Carl stated everything in the ordinance will be enforced until then.
Contact Joan Ashley at 574-6281