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Introduced Version House Bill 2303 History

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hb2303 intr
H. B. 2303


(By Delegates Frich, Walters and Romine)
[Introduced February 14, 2005; referred to the
Committee on the Judiciary then Finance.]




A BILL to amend and reenact §60-4-23 of the Code of West Virginia, 1931, as amended, relating to regulating businesses offering exotic entertainment; authorizing the Commissioner of the Alcohol Beverage Control Commission to license all businesses offering exotic entertainment; defining terms; regulating the conduct of performances; removing time periods in which application for license may be made; providing opportunity for public comment; establishing standards for approval of application; requiring Commissioner to issue license if certain criteria are met; setting time limit in which decision on application must be rendered; providing for prompt judicial review; providing that exhaustion of administration remedies is not required; setting effective date; and directing Commissioner to promulgate emergency rules.

Be it enacted by the Legislature of West Virginia:
That §60-4-23 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 4. LICENSES.
§60-4-23. License to operate a facility where exotic entertainment

is offered; definitions; restrictions; regulations and prohibitions; prohibitions against minors; application, renewal, license fee, restrictions on transfer; effective date; legislative rules; unlawful acts and penalties imposed.

(a) For purposes of this section:
(1) "Exotic entertainment" means live nude dancing, nude service personnel or live nude entertainment, and "nude" means any state of undress in which male or female genitalia or female breasts are exposed.
the exhibition of live performers, dancers or service personnel in a state of undress, or the act of undressing, for sexually-oriented entertainment which, taken as a whole, is intended to appeal to prurient interest: Provided, That the exhibition of nude or partially-nude performers in any play, drama, ballet, or theatrical production in which the nudity is incidental to the production and presentation of the work, as a whole, shall not be deemed "exotic entertainment";
(2) "Spectator" means any customer, invitee, or patron of a facility offering exotic entertainment, or any spectator, on the premises of a facility offering exotic entertainment, who is not an employee of the facility; and
(2) (3) "Places set apart for traditional family-oriented naturism" means family nudist parks, clubs and resorts chartered by the American Association for Nude Recreation or the Naturist Society, including all of their appurtenant business components, and also including places temporarily in use for traditional family-oriented naturist activities.
(b) No person may operate any commercial facility where exotic entertainment is permitted or offered unless such person is granted a license by the Commissioner to operate a facility where exotic entertainment may be offered. The provisions of this subsection apply whether or not alcoholic liquor, wine or nonalcoholic beer is legally kept, served, sold or dispensed in a facility, or purchased for use in a facility, or permitted to be brought by others into a facility and whether or not such person holds any other license or permit issued pursuant to chapter sixty of this code.
(c) A licensee is subject to all the regulatory provisions of article seven of this chapter, whether or not the licensee is otherwise a private club. The Commissioner shall have all the powers and authorization granted under article seven of this chapter to regulate, restrict and sanction a licensee under this section. No licensee may purchase, keep, sell, serve, dispense or purchase for use in a licensed facility, or permit others to bring into the facility, any alcoholic liquor, wine or nonintoxicating beer without having the appropriate license therefor. No licensee may operate a private club without being licensed therefor.
(d) No person or licensee may allow a person under the age of eighteen years to perform as an exotic entertainer. No person under the age of twenty-one years other than a performing exotic entertainer, may be allowed to be in a commercial facility on any day on which any exotic entertainment is offered therein. No licensee may hold special nonalcoholic entertainment events for persons under age twenty-one pursuant to the provisions of section eight, article seven of this chapter in the licensed facility.
(e) A person performing exotic entertainment may not touch any spectator and shall remain at a distance of at least six feet from all spectators and shall have a fully opaque covering over the male or female genitalia, anus, and anal cleft, and over the nipples of the female breasts at all times. No licensee shall cause or permit any performance in violation of this subsection.
(e) (f) Any person operating a commercial facility where exotic entertainment is offered on the effective date of this section may apply to the Commissioner for a license to operate a facility where exotic entertainment may be offered. Applications must be filed with the commissioner on or before the first day of July, two thousand; thereafter no application for license may be received by the commissioner. The Commissioner may issue a license to a person complying with the provisions of this chapter and who meets the requirements imposed by subsection (h) of this section. Upon application for renewal, the Commissioner shall annually, on the first day of July of each succeeding year, renew the license of any licensee then in compliance with the provisions of this chapter. The Commissioner shall specify the form of application and information required of applicants and licensees. No license which has lapsed, been revoked or expired without renewal may be reissued. The commissioner shall render a decision on each application within thirty days of receipt of such application.
(g) Before granting a license to any applicant, the commissioner shall review and consider all public comments received concerning the application. Any person, or the governing body of any county or municipality where the facility identified in the application is to be located, may submit comments in the form of statements, petitions and evidence pertaining to any of the following subjects:
(1) False, deceptive or misleading information provided in the license application;
(2) Any of the criteria listed in subsection (h) of this section, pertaining to the applicant or any person with greater than a five percent interest in a corporation applying for the license;
(3) Adverse affects on public health and safety;
(4) The potential impact of increased traffic or crime resulting from operation of the facility at the location or in the premises proposed in the application; and
(5) Incompatibility with any adopted county or municipal plan for revitalization or rehabilitation of the area in which the proposed facility is to be located.

(h) If, after review of all public comments submitted pursuant to the provisions of subsection (g) of this section, the Commissioner finds that substantial evidence does not exist that the grant of the license will adversely affect the public health, safety and welfare, the Commissioner may issue the license to conduct a business offering exotic entertainment if all the following criteria have been met in addition to any other applicable requirements imposed by this chapter:
(1) The applicant is at least twenty-one years of age;
(2) The applicant has not been convicted of a violation of any of the provisions of section five, six, seven, eight, or twenty-eight, article eight, chapter sixty-one of this code or the provisions of article eight-a, eight-b or eight-c, chapter sixty-one of this code or of a violation of a law of any other state that, if committed or attempted in this State, would have been punishable as one of the offenses set forth in this paragraph;
(3) The applicant has not been convicted of any felony offense involving the sale of a controlled substance specified in section two hundred four, two hundred six, two hundred eight, two hundred ten or two hundred twelve, article two, chapter sixty-a of this code or of an offense in any other jurisdiction that, if committed or attempted in this State, would have been punishable as one or more of the offenses set forth in this paragraph;
(4) The applicant has not been convicted of any violation of §§18 U.S.C. 2421, 2422 or 2423;
(5) The applicant has not been adjudged guilty of, or enjoined from, maintaining a public nuisance, pursuant to the provisions of article nine, chapter sixty-one of this code or similar provisions in law or equity of any other jurisdiction;

(6) The premises to be used for the exotic entertainment business has been approved as being in compliance with applicable health, fire and building codes by the entity responsible for investigating compliance with the codes;
(7) The premises to be used for the exotic entertainment business is not located in an area that any county or municipal ordinance has declared to be ineligible for the conducting of such business; and
(8) The applicant has not had a license issued under this section or a similar license issued by another jurisdiction suspended or revoked within five years preceding the date of the application.
(i) A decision denying, suspending, revoking or refusing to issue a license is subject to direct review in the circuit court of the county in which the business is or is intended to be located and, notwithstanding the provisions of article five, chapter twenty-nine-a and any other provisions of this code to the contrary, exhaustion of administrative remedies is not a condition precedent to the right to seek judicial review.
(f) (j) A person to whom a license is issued or renewed under the provisions of this section shall pay annually to the Commissioner a license fee of three thousand dollars. A municipal corporation wherein any such licensee is located shall issue a municipal license to any person to whom the Commissioner has issued a license and may impose a license fee not in excess of the state license fee.
(g) (k) A person shall not sell, assign or otherwise transfer a license without the prior written approval of the Commissioner. For purposes of this section, the merger of a licensee or the sale of more than fifty percent of the outstanding stock of or partnership interests in the licensee shall be deemed to be a sale, assignment or transfer of a license under this section. A license shall not be transferred to another location, except within the county of original licensure. A transferee of a licensed facility may apply for reissuance of the transferor's license if the transferee applicant otherwise qualifies for a license. The Commissioner is authorized to propose the promulgation of a legislative rule in accordance with the provisions of chapter twenty-nine-a of this code, to implement the provisions of this subsection.
(h) (l) This section shall be effective upon passage by the Legislature in the year two thousand five. On or before the first day of May June, two thousand five, the Commissioner shall promulgate an emergency legislative rule pursuant to the provisions of chapter twenty-nine-a of this code to effectuate the provisions of this section, and shall propose a legislative rule therefor, for consideration by the Legislature, prior to the last day of December, two thousand five.
(i) (m) Any person who violates any provision of this section, or principal of a firm or corporation which violates any provision of this section, or licensee, agent, employee or member of any licensee who violates any provision of this section, or who violates any of the provisions of section twelve, article seven of this chapter, on the premises of a licensed facility, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than three thousand dollars, or imprisoned for a period not to exceed one year, or both so fined and imprisoned.
(j) (n) The provisions of this section do not apply to places set apart for traditional family-oriented naturist activities.

NOTE: The purpose of this bill is to authorize the Alcohol Beverage Control Commissioner to license businesses offering exotic entertainment to prevent harmful secondary effects associated with such businesses.


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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