H. B. 3151
(By Delegates Argento, Talbott, Barker,
Ellis, Hrutkay, Eldridge and Stemple)
[Introduced January 9, 2008; 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
businesses selling sexually oriented materials.
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.
(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 material" means any book, article,
magazine, publication or written matter of any kind, drawing,
etching, painting, photograph, motion picture film or sound
recording that depicts sexual activity, actual or simulated,
involving human beings or human beings and animals, that exhibits
uncovered human genitals or pubic region in a lewd or lascivious
manner, or that exhibits human male genitals in a discernibly
turgid state, even if completely covered.
(b) In the event a county has not created or designated a
planning commission pursuant to the provisions of
article
twenty-four, chapter eight chapter eight-a 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 "sexually oriented material" 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 articles 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.
NOTE: The purpose of this bill is to allow a county
commission with 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.