F.S.T., Inc. d/b/a Tiffany's Dolls Cabaret, Petitioner Below, Petitioner
Hancock County Commission, Respondent Below, Respondent
F.S.T., Inc. d/b/a Tiffany's Dolls Cabaret, by counsel
Joseph L. Ludovici and Ian T. Masters, appeals the order of
the Circuit Court of Hancock County, entered on November 9,
2016, granting respondent's motion to quash writs and
dismiss petitioner's appeal. Respondent Hancock County
Commission appears by counsel Michael W. Lucas, III.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, dismissal of the appeal
is appropriate under Rule 31(b) of the Rules of Appellate
appeal centers on petitioner's challenge to
respondent's "Adults Only Establishment Location
Ordinance" ("the 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.
an "adult entertainment establishment, " closed its
doors in compliance with a West Virginia Alcohol Beverage
Control Administration-ordered "cooling off" period
in September of 2015, and its principal subsequently
relinquished his license to serve alcohol. The business
apparently remains dormant. 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
Petitioner did not pursue the avenue suggested by the
assistant prosecuting attorney. Instead, it filed its
"Writ of Certiorari[, ] Writ of Error[, ] Appeal[, and]
Writ of Prohibition" with the Circuit Court of Hancock
County, 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. However, petitioner asked specifically
that the court "issue an [o]rder prohibiting the Hancock
County Commissioners from prohibiting [petitioner] from
operating the establishment in the same manner as it had been
previously operated" as well as an order
"permitting [petitioner] to operate [its] business in
accordance to their prior established business model and
activities. . . ." Based on this specific request for
relief, as well as petitioner's styling, we consider the
pleading filed with the circuit court a petition for
extraordinary relief. See n. 1.
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 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, 207 W.Va.
385, 532 S.E.2d 654 (2000), because there was no evidence
that petitioner had filed an application with respondent. The
circuit court also found that 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 petitioner would not be without recourse
were its application denied.
appeal, petitioner asserts three assignments of error: (1)
that the circuit court erred in its application of law
(arguing, essentially, that the circuit court wrongly found
that petitioner failed to exhaust administrative remedies);
(2) that respondent is required to create a zoning board of
appeals pursuant to West Virginia Code § 8A-8-1, and the
circuit court incorrectly found otherwise; and (3) that the
circuit court erred in its application of Parsons.
We decline to address these assignments of error for lack of
ripeness, which leaves us without subject matter jurisdiction
over petitioner's claims. "Subject matter
jurisdiction does not exist over claims that are not ripe for
adjudication." Syl. Pt. 3, State ex rel. Universal
Underwriters Ins. Co. v. Wilson, 239 W.Va. 338, 801
S.E.2d 216, 218 (2017). "'This Court, on its own
motion, will take notice of lack of jurisdiction at any time
or at any stage of the litigation pending therein.' Syl.
Pt. 2, In re Boggs' Estate, 135 W.Va. 288, 63
S.E.2d 497 (1951)." Id. at __, 801 S.E.2d 216,
has neither made application with respondent and been
refused, nor attempted to reopen its business and been
impeded. The appendix record on appeal is devoid of any
action taken by respondent to frustrate petitioner's
purpose. As we explained in State ex rel. Morrisey v. W.
Virginia Office of Disciplinary Counsel, 234 W.Va. 238,
246, 764 S.E.2d 769, 777 (2014), wherein we discussed the
related doctrine of standing, the relief sought by petitioner
would result in our "issuing an advisory opinion . . .
to a situation that has not occurred." We wrote:
The writ of prohibition is not designed to accord relief to a
person who merely receives a requested advisory opinion with
which he or she disagrees. The writ of prohibition is not a
revolving door. See Woodall v. Laurita, 156 W.Va.
707, 713, 195 S.E.2d 717, 721 (1973) ("The piecemeal
challenge of discretionary rulings through writs of
prohibition does not facilitate the orderly administration of
justice."). "[T]he right to prohibition must be
clearly shown before a petitioner is entitled to this
extraordinary remedy." Norfolk S. Ry. Co. v.
Maynard, 190 W.Va. 113, 120, 437 S.E.2d 277, 284 (1993).
See also State ex rel. Kees v. Sanders, 192 W.Va.
602, 606, 453 S.E.2d 436, 440 (1994) ("The
petitioner's right to the extraordinary remedy of
prohibition must clearly appear before he is entitled to such
remedy.") . . . .
It is a deeply rooted and fundamental law that "this
Court is not authorized to issue advisory opinions[.]"
State ex rel. City of Charleston v. Coghill, 156
W.Va. 877, 891, 207 S.E.2d 113, 122 (1973) (Haden, J.,
dissenting). In this regard, we observed in Harshbarger
v. Gainer, 184 W.Va. 656, 659, 403 S.E.2d 399, 402
(1991), that "[s]ince President Washington, in 1793,
sought and was refused legal advice from the Justices of the
United States Supreme Court, courts-state and federal-have
continuously maintained that they will not give 'advisory
opinions.'" Moreover, in United Fuel Gas Co. v.
Public Service Commission, 73 W.Va. 571, 578, 80 S.E.
931, 934 (1914), we noted that "[b]y the plain terms of
the Constitution appellate jurisdiction is limited to
controversies arising in judicial proceedings[.]" This
Court further addressed the issue of advisory opinions in
Mainella v. Board of Trustees of Policemen's Pension
or Relief Fund of City of Fairmont, 126 W.Va. 183,
185-86, 27 S.E.2d 486, 487-88 (1943), as follows:
Courts are not constituted for the purpose of making advisory
decrees or resolving academic disputes. The pleadings and
evidence must present a claim of legal right asserted by one
party and denied by the other before jurisdiction of a suit
may be taken.
Consistent with our general rule, it is obvious that
"the writ of prohibition cannot be invoked[ ] to secure
from th[is] Court . . . an advisory opinion[.]"
Barnett v. Brett, 401 P.2d 532, 534
(Okla.Crim.App.1965). See also State ex rel. ACF Indus.,
Inc. v. Vieweg, 204 W.Va. 525, 533 n. 13, 514 S.E.2d
176, 184 n. ...