Senate Bill No. 530
(By Senators Hunter, Unger, Prezioso, McCabe, Harrison, Rowe,
Fanning, White, Dempsey, Jenkins and Bowman)
____________
[Introduced February 13, 2004; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §7-1-3jj of the code of West Virginia,
1931, as amended, relating to defining "adult-oriented
establishment" and
"limited video lottery location
";
authorizing counties to restrict the location of
adult-oriented establishments and limited video lottery
establishments; and exempting certain existing limited video
lottery establishments from regulation by county ordinance.
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) "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.
(4) "Limited video lottery location" means
the premises on
which a video lottery retailer is licensed to conduct limited video lottery games: Provided, That each person licensed as a retailer
shall have and maintain sole and exclusive legal possession of the
entire premises for which the retail license is issued.
(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," "limited video lottery location
" or "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 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, limited video lottery
location
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.
(e) N
o ordinance enacted pursuant to the provisions of this
section applies to or affect
s the location of a limited video
lottery location in existence on the effective date of this section
unless the premises is altered in any way or the retailer licensed
to conduct limited video lottery games on the premises is no longer
licensed to conduct limited video lottery games.
NOTE: The purpose of this bill is to
define
"limited video
lottery location
"
and "adult-oriented establishment." The bill
authorizes counties to enact an ordinance restricting the location
of exotic entertainment establishments and limited video lottery
establishments.
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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