H. B. 2412
(By Delegate Argento)
[Introduced February 14, 2009; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact §7-1-3jj of the Code of West Virginia,
1931, as amended, relating to providing certain county
commissions with authority to regulate the location of
sexually-oriented businesses.
Be it enacted by the Legislature of West Virginia:
That §7-1-3jj of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3jj. Authority of counties to enact ordinances restricting
the location of businesses offering exotic
entertainment and sexually-oriented businesses.
(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)"Sexually-oriented business" means a sex parlor, nude
studio, modeling studio, love parlor, adult bookstore, adult movie
theater, adult video arcade, adult movie arcade, adult video store,
adult motel or other commercial enterprise the primary business of
which is the offering of a service or the selling, renting or
exhibiting of devices or any other items intended to provide sexual
stimulation or sexual gratification to the customer.
(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 a "sexually-oriented business" as
that
term is those terms are defined in subsection (a) of this section:
Provided, That a county that has created a planning commission
shall use the authority and process pursuant to chapter eight-a of
this code.
(c) Any such The ordinance
shall be is subject to the
provisions of section
fifty ten, article
twenty-four seven, chapter
eight eight-a 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 is 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 subjects the structure to any
existing ordinance authorized by this section.
(d) 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 applies to or affects 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
articles twelve or twenty-four article twelve, chapter eight of
this code,
or chapter eight-a of this code; or (2) adopts an
ordinance to exempt itself from any county ordinance enacted
pursuant to this section.
(c) (e) 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.
NOTE: The purpose of this bill is to allow a county commission
without an established planning commission to regulate the location
of businesses selling sexually-oriented material.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.