H. B. 2303
(By Delegates Frich, Walters and Romine)
[Introduced
January 11, 2006
; referred to the
Committee on the Judiciary then Finance.]
A BILL to
amend and reenact §60-4-23
of the Code of West Virginia,
1931, as amended,
relating to regulating businesses offering
exotic entertainment; authorizing the Commissioner of the
Alcohol Beverage Control Commission to license all businesses
offering exotic entertainment; defining terms; regulating the
conduct of performances; removing time periods in which
application for license may be made; providing opportunity for
public comment; establishing standards for approval of
application; requiring Commissioner to issue license if
certain criteria are met; setting time limit in which decision
on application must be rendered; providing for prompt judicial
review; providing that exhaustion of administration remedies
is not required; setting effective date; and directing
Commissioner to promulgate emergency rules.
Be it enacted by the Legislature of West Virginia:
That §60-4-23 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 4. LICENSES.
§60-4-23. License to operate a facility where exotic entertainment
is offered; definitions; restrictions; regulations
and prohibitions; prohibitions against minors;
application, renewal, license fee, restrictions on
transfer; effective date; legislative rules; unlawful
acts and penalties imposed.
(a) For purposes of this section:
(1) "Exotic entertainment" means live nude dancing, nude
service personnel or live nude entertainment, and "nude" means any
state of undress in which male or female genitalia or female
breasts are exposed.
the exhibition of live performers, dancers or
service personnel in a state of undress, or the act of undressing,
for sexually-oriented entertainment which, taken as a whole, is
intended to appeal to prurient interest: Provided, That the
exhibition of nude or partially-nude performers in any play, drama,
ballet, or theatrical production in which the nudity is incidental
to the production and presentation of the work, as a whole, shall
not be deemed "exotic entertainment";
(2) "Spectator" means any customer, invitee, or patron of a
facility offering exotic entertainment, or any spectator, on the
premises of a facility offering exotic entertainment, who is not an employee of the facility; and
(2) (3) "Places set apart for traditional family-oriented
naturism" means family nudist parks, clubs and resorts chartered by
the American Association for Nude Recreation or the Naturist
Society, including all of their appurtenant business components,
and also including places temporarily in use for traditional
family-oriented naturist activities.
(b) No person may operate any commercial facility where exotic
entertainment is permitted or offered unless such person is granted
a license by the Commissioner to operate a facility where exotic
entertainment may be offered. The provisions of this subsection
apply whether or not alcoholic liquor, wine or nonalcoholic beer is
legally kept, served, sold or dispensed in a facility, or purchased
for use in a facility, or permitted to be brought by others into a
facility and whether or not such person holds any other license or
permit issued pursuant to chapter sixty of this code.
(c) A licensee is subject to all the regulatory provisions of
article seven of this chapter, whether or not the licensee is
otherwise a private club. The Commissioner shall have all the
powers and authorization granted under article seven of this
chapter to regulate, restrict and sanction a licensee under this
section. No licensee may purchase, keep, sell, serve, dispense or
purchase for use in a licensed facility, or permit others to bring
into the facility, any alcoholic liquor, wine or nonintoxicating beer without having the appropriate license therefor. No licensee
may operate a private club without being licensed therefor.
(d) No person or licensee may allow a person under the age of
eighteen years to perform as an exotic entertainer. No person
under the age of twenty-one years other than a performing exotic
entertainer, may be allowed to be in a commercial facility on any
day on which any exotic entertainment is offered therein. No
licensee may hold special nonalcoholic entertainment events for
persons under age twenty-one pursuant to the provisions of section
eight, article seven of this chapter in the licensed facility.
(e) A person performing exotic entertainment may not touch any
spectator and shall remain at a distance of at least six feet from
all spectators and shall have a fully opaque covering over the male
or female genitalia, anus, and anal cleft, and over the nipples of
the female breasts at all times. No licensee shall cause or permit
any performance in violation of this subsection.
(e) (f) Any person operating a commercial facility where
exotic entertainment is offered on the effective date of this
section may apply to the Commissioner for a license to operate a
facility where exotic entertainment may be offered. Applications
must be filed with the commissioner on or before the first day of
July, two thousand; thereafter no application for license may be
received by the commissioner. The Commissioner may issue a license
to a person complying with the provisions of this chapter and who meets the requirements imposed by subsection (h) of this section.
Upon application for renewal, the Commissioner shall annually, on
the first day of July of each succeeding year, renew the license of
any licensee then in compliance with the provisions of this
chapter. The Commissioner shall specify the form of application
and information required of applicants and licensees. No license
which has lapsed, been revoked or expired without renewal may be
reissued. The commissioner shall render a decision on each
application within thirty days of receipt of such application.
(g) Before granting a license to any applicant, the
commissioner shall review and consider all public comments received
concerning the application. Any person, or the governing body of
any county or municipality where the facility identified in the
application is to be located, may submit comments in the form of
statements, petitions and evidence pertaining to any of the
following subjects:
(1) False, deceptive or misleading information provided in
the license application;
(2) Any of the criteria listed in subsection (h) of this
section, pertaining to the applicant or any person with greater
than a five percent interest in a corporation applying for the
license;
(3) Adverse affects on public health and safety;
(4) The potential impact of increased traffic or crime resulting from operation of the facility at the location or in the
premises proposed in the application; and
(5) Incompatibility with any adopted county or municipal plan
for revitalization or rehabilitation of the area in which the
proposed facility is to be located.
(h) If, after review of all public comments submitted pursuant
to the provisions of subsection (g) of this section, the
Commissioner finds that substantial evidence does not exist that
the grant of the license will adversely affect the public health,
safety and welfare, the Commissioner may issue the license to
conduct a business offering exotic entertainment if all the
following criteria have been met in addition to any other
applicable requirements imposed by this chapter:
(1) The applicant is at least twenty-one years of age;
(2) The applicant has not been convicted of a violation of any
of the provisions of section five, six, seven, eight, or
twenty-eight, article eight, chapter sixty-one of this code or the
provisions of article eight-a, eight-b or eight-c, chapter
sixty-one of this code or of a violation of a law of any other
state that, if committed or attempted in this State, would have
been punishable as one of the offenses set forth in this paragraph;
(3) The applicant has not been convicted of any felony offense
involving the sale of a controlled substance specified in section
two hundred four, two hundred six, two hundred eight, two hundred ten or two hundred twelve, article two, chapter sixty-a of this
code or of an offense in any other jurisdiction that, if committed
or attempted in this State, would have been punishable as one or
more of the offenses set forth in this paragraph;
(4) The applicant has not been convicted of any violation of
§§18 U.S.C. 2421, 2422 or 2423;
(5) The applicant has not been adjudged guilty of, or enjoined
from, maintaining a public nuisance, pursuant to the provisions of
article nine, chapter sixty-one of this code or similar provisions
in law or equity of any other jurisdiction;
(6) The premises to be used for the exotic entertainment
business has been approved as being in compliance with applicable
health, fire and building codes by the entity responsible for
investigating compliance with the codes;
(7) The premises to be used for the exotic entertainment
business is not located in an area that any county or municipal
ordinance has declared to be ineligible for the conducting of such
business; and
(8) The applicant has not had a license issued under this
section or a similar license issued by another jurisdiction
suspended or revoked within five years preceding the date of the
application.
(i) A decision denying, suspending, revoking or refusing to
issue a license is subject to direct review in the circuit court of the county in which the business is or is intended to be located
and, notwithstanding the provisions of article five, chapter
twenty-nine-a and any other provisions of this code to the
contrary, exhaustion of administrative remedies is not a condition
precedent to the right to seek judicial review.
(f) (j) A person to whom a license is issued or renewed under
the provisions of this section shall pay annually to the
Commissioner a license fee of three thousand dollars. A municipal
corporation wherein any such licensee is located shall issue a
municipal license to any person to whom the Commissioner has issued
a license and may impose a license fee not in excess of the state
license fee.
(g) (k) A person shall not sell, assign or otherwise transfer
a license without the prior written approval of the Commissioner.
For purposes of this section, the merger of a licensee or the sale
of more than fifty percent of the outstanding stock of or
partnership interests in the licensee shall be deemed to be a sale,
assignment or transfer of a license under this section. A license
shall not be transferred to another location, except within the
county of original licensure. A transferee of a licensed facility
may apply for reissuance of the transferor's license if the
transferee applicant otherwise qualifies for a license. The
Commissioner is authorized to propose the promulgation of a
legislative rule in accordance with the provisions of chapter twenty-nine-a of this code, to implement the provisions of this
subsection.
(h) (l) This section shall be effective upon passage by the
Legislature in the year two thousand five. On or before the first
day of May June, two thousand five, the Commissioner shall
promulgate an emergency legislative rule pursuant to the provisions
of chapter twenty-nine-a of this code to effectuate the provisions
of this section, and shall propose a legislative rule therefor, for
consideration by the Legislature, prior to the last day of
December, two thousand five.
(i) (m) Any person who violates any provision of this section,
or principal of a firm or corporation which violates any provision
of this section, or licensee, agent, employee or member of any
licensee who violates any provision of this section, or who
violates any of the provisions of section twelve, article seven of
this chapter, on the premises of a licensed facility, is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not less
than one thousand dollars nor more than three thousand dollars, or
imprisoned for a period not to exceed one year, or both so fined
and imprisoned.
(j) (n) The provisions of this section do not apply to places
set apart for traditional family-oriented naturist activities.
NOTE: The purpose of this bill is to authorize the Alcohol
Beverage Control Commissioner to license businesses offering exotic
entertainment to prevent harmful secondary effects associated with such businesses.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.