Senate Bill No. 273
(By Senators Kessler, Oliverio, Chafin, Foster, Green, Hunter,
Jenkins, Minard, Stollings, Wells, Barnes, Deem, Hall, McKenzie
and Yoder)
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[Originating in the Committee on the Judiciary;
reported January 18, 2008.]
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A BILL to amend and reenact §7-1-3jj of the Code of West Virginia,
1931, as amended; and to amend and reenact §8-12-5c of said
code, all relating to removing references to repealed statutes
and replacing with current statutory references.
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; and that §8-12-5c of said code be amended
and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
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.
(b) In the event a county has not created or designated a
planning commission pursuant to the provisions of article
twenty-four two, chapter
eight 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" as that term is defined in subsection (a) of
this section. Any such ordinance shall be 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 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 article twelve
or twenty-four, chapter eight of this
code
or article two, chapter eight-a 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.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED
RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND MUNICIPAL
OFFICERS AND EMPLOYEES; SUITS AGAINST MUNICIPALITIES.
§8-12-5c. Authority to enact ordinance restricting the location of
businesses offering exotic entertainment.
(a) For the purposes of this section, the term "exotic
entertainment" has the same meaning ascribed to it in section
three-jj, article one, chapter seven of this code.
(b) In the event a municipality has not created or designated
a planning commission in accordance with the provisions of article
twenty-four two, chapter eight-a of this
chapter code, every
municipality and the governing body of the municipality may, in
addition to all other powers of municipalities, adopt an ordinance
that limits the areas of the municipality in which businesses may
offer exotic entertainment. Any such ordinance shall be subject to
the provisions of section
fifty ten, article
twenty-four seven,
this chapter
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 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.
(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.
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(NOTE: The purpose of this bill is to delete statutory
references to article twenty-four, chapter eight of this code,
which was repealed in 2004 and recodified in current chapter eight-
a of this code, and substitute the repealed statutes with
references to the appropriate statutes in the recodification.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)