Senate Bill No. 482

(By Senators Hunter, McCabe, Rowe, Snyder, Bowman, Minear, Sprouse, White, Unger, Harrison, Love, Weeks and Prezioso)


[Originating in the Committee on the Judiciary;

reported February 28, 2003.]


A BILL to amend and reenact section three-jj, article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to defining "adult-oriented establishment" relative to counties' authority to enact ordinances restricting location of exotic entertainment establishments; authorizing counties to restrict the location of an "adult-oriented establishment"; and severability.

Be it enacted by the Legislature of West Virginia:
That section three-jj, article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:

§7-1-3jj. Authority of counties to enact ordinances restricting the location of businesses offering exotic entertainment.

(a) For the purposes of this section:
(1) "Exotic entertainment" means live entertainment, dancing or other services conducted by persons while nude or seminude in a commercial setting or for profit.
(2) "Seminude" means the appearance of:
(A) The female breast below a horizontal line across the top of the areola at its highest point, including the entire lower portion of the human female breast, but does not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt, leotard, bathing suit or other wearing apparel provided the areola is not exposed, in whole or in part;
(B) A human bare buttock, anus, anal cleft or cleavage, pubic area, male genitals, female genitals or vulva, with less than a fully opaque covering; or
(C) A human male genital in a discernibly turgid state even if completely and opaquely covered.
(3) "Adult-oriented establishment" means any commercial establishment, business or service, or portion thereof, which offers, as its principal or predominant stock or trade, sexually oriented material, devices or paraphernalia, or any combination or form thereof, whether printed, filmed, recorded or live and which restricts or purports to restrict admission to adults or to any class of adults.
(b) In the event a county has not created or designated a planning commission pursuant to the provisions of article twenty-four, chapter eight of this code, a county commission may, by order entered of record, adopt an ordinance that limits the areas of the county in which a business may offer "exotic entertainment" or operate as an "adult-oriented establishment" as that term is those terms are defined in subsection (a) of this section. Any such ordinance shall be subject to the provisions of section fifty, article twenty-four, chapter eight of this code: Provided, That in the event of the partial or total loss of any existing business structure due to fire, flood, accident or any other unforeseen act, that business structure may be repaired or replaced and the business use of that structure may continue notwithstanding the existence of any ordinance authorized by this section. Any such repair or replacement will be limited to restoring or replacing the damaged or lost structure with one reasonably similar, or smaller, in size as measured in square footage and any enlargement of the business structure will subject the structure to any existing ordinance authorized by this section. Notwithstanding any other provision of this code to the contrary, no ordinance enacted pursuant to the provisions of this section may apply to or affect any municipal corporation that either: (1) Has adopted and has in effect an ordinance restricting the location of exotic entertainment or substantially similar businesses pursuant to the authority granted in article twelve or twenty-four, chapter eight of this code; or (2) adopts an ordinance to exempt itself from any county ordinance enacted pursuant to this section.
(c) Any person adversely affected by an ordinance enacted pursuant to the authority granted in subsection (b) of this section is entitled to seek direct judicial review with regard to whether the ordinance impermissibly burdens his or her right to establish a business offering exotic entertainment or an adult-oriented establishment.
(d) If any part of this section is declared invalid or unconstitutional by a court of competent jurisdiction, the decision shall not affect the validity of the remaining provisions of this section.