COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 482
(By Senators Hunter, McCabe, Rowe, Snyder, Bowman, Minear,
Sprouse, White, Unger, Harrison, Love, Weeks and Prezioso)
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[Originating in the Committee on the Judiciary;
reported February 28, 2003.]
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A BILL to amend and reenact section three-jj, article one, chapter
seven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to defining "adult-oriented
establishment" relative to counties' authority to enact
ordinances restricting location of exotic entertainment
establishments; authorizing counties to restrict the location
of an "adult-oriented establishment"; and severability.
Be it enacted by the Legislature of West Virginia:
That section three-jj, article one, chapter seven of the code
of West Virginia, one thousand nine hundred thirty-one, 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) "Adult-oriented establishment" means any commercial
establishment, business or service, or portion thereof, which
offers, as its principal or predominant stock or trade, sexually
oriented material, devices or paraphernalia, or any combination or
form thereof, whether printed, filmed, recorded or live and which
restricts or purports to restrict admission to adults or to any
class of adults.
(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" or operate as an "adult-oriented establishment" 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 article 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 or an adult-oriented
establishment.
(d) If any part of this section is declared invalid or
unconstitutional by a court of competent jurisdiction, the decision
shall not affect the validity of the remaining provisions of this
section.
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(NOTE: The purpose of this bill is to
define "adult-oriented
establishment" relative to counties' authority to enact ordinances
restricting location of exotic entertainment establishments while
authorizing counties to restrict the location of an "adult-oriented
establishment".
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
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