Senate Bill No. 394
(By Senators Barnes, Unger, Snyder, Fanning, Edgell, Sypolt,
Boley, Guills, Caruth, Deem, McCabe, Jenkins and Williams)
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[Introduced February 26, 2009; referred to the Committee on
Government Organization; and then to the Committee on the
Judiciary.]
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A BILL to amend and reenact §7-1-3jj of the Code of West
Virginia, 1931, as amended, relating to the regulation of
the locations of businesses offering exotic entertainment.
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.
(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" as that term is defined in subsection (a) of this
section.
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 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
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
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) 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 change the county
commission's authority to regulate through an ordinance the
locations of businesses of exotic entertainment from section fifty, article twenty-four of chapter eight to section ten,
article seven of chapter eight. The bill also eliminates the
authority of article twenty-four of chapter eight of the code and
replaces it with chapter eight-a. These changes are necessitated
by the earlier repeal of article twenty-four of chapter eight.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.