F.S.T., Inc. d/b/a Tiffany's Dolls Cabaret v. Hancock Co. Commission, 17-0016

Background

Petitioner F.S.T., Inc. (Tiffany’s Dolls Cabaret) is an adult entertainment business that closed in Sept. 2015 during an ABC "cooling off" period and has remained dormant; its principal relinquished the alcohol license.
Hancock County enacted an "Adults Only Establishment Location Ordinance" (2004) that deems such a use "abandoned" if it ceases for more than 60 consecutive days, regardless of intent.
In April 2016 petitioner’s counsel asked the county prosecutor about reopening; the prosecutor informally indicated the business likely would be deemed abandoned and advised seeking a formal county determination, which petitioner did not do.
Instead petitioner filed a multi‑styled pleading in Hancock County Circuit Court framed as writs (certiorari, error, appeal, prohibition) asking the court to declare the ordinance invalid for lack of a zoning board of appeals and to prohibit the county from preventing reopening.
The circuit court granted the county’s motion to quash and dismiss, finding no justiciable controversy (petitioner had not applied to the county or been denied) and that the county was not required to create a zoning board because the ordinance predated the statute.
The Supreme Court of Appeals dismissed the appeal for lack of ripeness/subject‑matter jurisdiction: petitioner sought an advisory ruling without having sought administrative relief or suffered a governmental denial or enforcement action.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court had jurisdiction to grant extraordinary relief without administrative application or denial	F.S.T. asked court to declare ordinance invalid and permit reopening without applying to county first	County argued no controversy because petitioner never applied or been denied; dismissal appropriate	Dismissed for lack of ripeness; no subject‑matter jurisdiction because petitioner sought an advisory ruling
Whether Hancock County was required to create a zoning board of appeals under W. Va. Code § 8A‑8‑1	Petitioner contended county must create board and ordinance invalid without it	County said ordinance predates statute and is not subject to that requirement	Court declined to reach merits (ripeness); circuit court had found no requirement because ordinance predated statute but Supreme Court dismissed appeal on procedural grounds
Whether extraordinary writ (prohibition) was proper here	Petitioner sought writs to prevent county from enforcing ordinance	County argued prohibition unwarranted because no pending enforcement or decision to prohibit reopening	Court held prohibition would be an advisory opinion; extraordinary relief not warranted absent clear right and actual controversy
Whether petitioner failed to exhaust administrative remedies	Petitioner argued exhaustion not required for relief	County argued petitioner must seek county determination or be denied before judicial review	Court agreed exhaustion necessary here; absence of application/denial made claims unripe and non‑justiciable

Key Cases Cited

State ex rel. Parsons v. Zakaib, 207 W. Va. 385, 532 S.E.2d 654 (2000) (standards for extraordinary relief by writ)
State ex rel. Universal Underwriters Ins. Co. v. Wilson, 239 W. Va. 338, 801 S.E.2d 216 (2017) (ripeness/subject‑matter jurisdiction requires an actual controversy)
In re Boggs' Estate, 135 W. Va. 288, 63 S.E.2d 497 (1951) (court may notice lack of jurisdiction at any stage)
State ex rel. Morrisey v. W. Va. Office of Disciplinary Counsel, 234 W. Va. 238, 764 S.E.2d 769 (2014) (refusal to issue advisory opinions; standing/ripeness discussion)
Norfolk S. Ry. Co. v. Maynard, 190 W. Va. 113, 437 S.E.2d 277 (1993) (extraordinary writ relief requires clear showing of right)
Mainella v. Bd. of Trustees of Policemen's Pension or Relief Fund of City of Fairmont, 126 W. Va. 183, 27 S.E.2d 486 (1943) (courts will not render advisory decrees)
United Fuel Gas Co. v. Pub. Serv. Comm'n, 73 W. Va. 571, 80 S.E. 931 (1914) (appellate jurisdiction limited to actual controversies arising from judicial proceedings)