H. B. 2421
(By Delegates Howard and Hamilton)
[Introduced February 16, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §61-8G-1, §61-8G-2,
§61-8G-3, §61-8G-4, §61-8G-5, §61-8G-6 and §61-8G-7, all
relating to the operation and activities of sexually oriented
businesses; criminal penalties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §61-8G-1, §61-8G-2,
§61-8G-3, §61-8G-4, §61-8G-5, §61-8G-6 and §61-8G-7, all to read as
ARTICLE 8G. REGULATION OF SEXUALLY ORIENTED BUSINESSES.
§61-8G-1. Short title.
This article shall be known and may be cited as the "Sexually
Oriented Businesses Regulation Act."
§61-8G-2. Legislative findings.
The Legislature finds and declares as follows:
(1) Crime statistics show that all types of crimes, especially
sex-related crimes, occur with more frequency in neighborhoods
where sexually oriented businesses are located.
(2) Nude dancing in adult establishments encourages
prostitution, increases sexual assaults and attracts other criminal
(3) Nude dancing in adult establishments increases the
likelihood of drug-dealing and drug use.
(4) Persons frequent certain adult theaters, adult arcades,
and other sexually oriented businesses for the purpose of engaging
in sex within the premises of such sexually oriented businesses.
(5) It is desirable to reduce the incidences of crime, disease
and public sexual acts that occur in and around sexually oriented
(6) It is the purpose of this article to regulate the
operation of sexually oriented businesses in order to promote the
health, safety, morals and general welfare of the citizens of this
(a) "Adult arcade" means any place to which the public is
permitted or invited wherein coin-operated or slug-operated or
electronically, electrically or mechanically controlled still or
motion picture machines, projectors or other image-producing
devices are maintained to show images to five or fewer persons per
machine at any one time, and where the images so displayed are
distinguished or characterized by the depicting or describing of
"specified sexual activities" or "specified anatomical areas."
(b) "Adult bookstore" or "adult video store" means a
commercial establishment that, as one of its principal business
purposes, offers for sale or rental for any form of consideration
any one or more of the following:
(1) Books, magazines, periodicals or other printed matter or
photographs, films, motion picture, video cassettes or video
reproductions, slides or other visual representations that depict
or describe "specified sexual activities" or "specified anatomical
(2) Instruments, devices or paraphernalia that are designed
for use in connection with "specified sexual activities."
A commercial establishment may have other principal business
purposes that do not involve the offering for sale or rental of
material depicting or describing "specified sexual activities" or
"specified anatomical areas" and still be categorized as "adult
book store" or "adult video store." These other business purposes
will not serve to exempt such commercial establishments from being
categorized as an adult bookstore or adult video store so long as
one of its principal business purposes is the offering for sale or
rental for consideration the specified materials that depict or
describe "specified sexual activities" or "specified anatomical
areas." A principal business purpose need not be a primary use of
an establishment so long as it is a significant use based upon the
visible inventory or commercial activity of the establishment.
(c) "Adult cabaret" means a club, nightclub, bar, restaurant
or similar commercial establishment that regularly features:
(1) Persons who appear in a state of nudity or seminudity; or
(2) Live performances that are characterized by the exposure
of "specified anatomical areas" or by "specified sexual
(3) Films, motion pictures, video cassettes, slides or other
photographic reproductions that are characterized by the depiction
or description of "specified sexual activities"; or "specified
anatomical areas"; or
(4) Persons who engage in erotic dancing or performances that
are intended for the sexual interests or titillation of an audience
(d) "Adult motion picture theater" means a commercial
establishment where, for any form of consideration, films, motion
pictures, video cassettes, slides or similar photographic
reproductions are regularly shown that are characterized by the
depiction or description of "specified sexual activities" or
"specified anatomical areas."
(e) "Adult theater" means a theater, concert hall, auditorium
or similar commercial establishment that regularly features persons
who appear, in person, in a state of nudity and/or seminudity,
and/or live performances that are characterized by the exposure of
"specified anatomical areas" or by "specified sexual activities."
(f) "Hours of operation" means the period of day a sexually
oriented business may offer for use, view, rent, sale or
consumption, entertainment, beverages or other types of products or
(g) "Live theatrical performance" means a play, opera, ballet,
concert or musical drama.
(h) "Nude model studio" means any place where a person who
appears in a state of nudity or displays "specified anatomical
areas" is provided to be observed, sketched, drawn, painted,
sculptured, photographed or similarly depicted by other persons for
(i) "Nudity" or a "state of nudity" means the appearance of 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 a female breast with less than a fully opaque covering
of any part of the areola; or human male genitals in a discernibly
turgid state even if completely and opaquely covered.
(j) "Seminude or seminudity" means the appearance of the
female breast below a horizontal line across the top of the areola
at its highest point. This definition shall include the entire
lower portion of the human female breast, but shall not include any
portion of the cleavage of the human female breast exhibited by a
dress, blouse, skirt or leotard.
(k) "Sexual encounter center" means a business or commercial
enterprise that, as one of its principal business purposes, offers
for any form of consideration:
(1) Physical contact in the form of wrestling or tumbling
between persons of the opposite sex; or
(2) Activities between male and female persons and/or persons
of the same sex when one or more of the persons is in a state of
nudity or seminudity.
(l) "Sexually oriented business" means an adult arcade, adult
bookstore or adult video store, adult cabaret, adult motion picture
theater, adult theater, nude model studio or sexual encounter
(m) "Specified anatomical areas" means:
(1) The human male genitals in a discernibly turgid state,
even if fully and opaquely covered;
(2) Less than completely and opaquely covered human genitals,
pubic region, buttocks or a female breast below a point immediately
above the top of the areola.
(3) Notwithstanding any other provision in this article,
movies rated G, PG, PG-13 or R by the Motion Picture Association of
America (MPAA), or live theatrical performances with serious
artistic, social or political value, that depict or describe
specified anatomical areas, are expressly exempted from the
provisions of this ordinance.
(n) "Specified sexual activities" means and includes any of
(1) The fondling or other erotic touching of human genitals,
pubic region, buttocks, anus or female breasts, whether covered or
(2) Sex acts, normal or perverted, actual or simulated,
including intercourse, oral copulation or sodomy;
(3) Masturbation, actual or simulated; or
(4) Excretory functions as part of or in connection with any
of the activities set forth in (1) through (3) above.
(5) Notwithstanding any other provision in this chapter,
movies rated G, PG, PG-13, or R by the Motion Picture Association
of America (MPAA), or live theatrical performances with serious
artistic, social or political value, that depict or describe
specified sexual activities, are expressly exempted from the
provisions of this ordinance.
§61-8G-4. Hours of operation; prohibitions.
A sexually oriented business, as defined in section three of
this article, shall not remain open at any time between the hours
of 11:00 p.m. and 10:00 a.m. on Monday through Saturday. No
sexually oriented business shall open or be open on Sundays or
legal holidays recognized by this State.
§61-8G-5. Regulation of certain activities; prohibitions.
(a) No person shall appear or be allowed to appear in person
in a nude or seminude condition on a sexually oriented business
premises, unless the person is an employee who, while nude or
seminude, is at least ten feet from any patron or customer and on
a stage raised at least two feet from the floor.
(b) No person shall, while nude or seminude, solicit or be
allowed to solicit any pay or gratuity from any patron or customer,
pay or give, or be allowed to pay or give, any gratuity to any
employee while the employee is nude or seminude on the sexually
oriented business premises.
(c) No employee shall, while nude or seminude, touch or be
allowed to touch, a patron, or the clothing of a patron, while the
employee is on the sexually oriented business premises, nor shall
a patron touch, or be allowed to touch, a nude or seminude employee
or the clothing of a nude or seminude employee, while the employee
is on the sexually oriented business premises.
Notwithstanding any provision in this article to the contrary,
local government bodies may enact additional regulations as they
consider necessary to eliminate, reduce or control the adverse
secondary effects caused by sexually oriented businesses within
§61-8G-7. Penalties for violation.
Violation of the provisions of this article is a misdemeanor
punishable by a fine of not more than one thousand dollars. A
fourth violation of this article within a sixty-day period is a
misdemeanor, punishable by fine of up to ten thousand dollars or
imprisonment up to one year in jail.
NOTE: The purpose of this bill is to regulate sexually
oriented businesses to promote the morals and general welfare of
the citizens of the State.
This article is new; therefore, strike-throughs and
underscoring have been omitted.