Senate Bill No. 1010
(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)
[Introduced May 31, 2009; referred to the Committee on the
Be it enacted by the Legislature of West Virginia
A BILL to amend and reenact §7-1-3jj of the Code of West Virginia,
1931, as amended, relating to ordinances; and providing
certain county commissions with authority to regulate the
location of businesses offering exotic entertainment.
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
(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.
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
as that term is defined in subsection (a) of this
However, an ordinance enacted pursuant to this section may
not affect a business offering exotic entertainment prior to the
effective date of the ordinance.
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
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 provide certain county
commissions with the authority to regulate the location of
businesses offering exotic entertainment.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would