H. B. 2616
(By Delegates J. Miller and D. Poling)
[Introduced February 18, 2009; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact §7-1-3jj of the Code of West Virginia,
1931, as amended, relating to removing extraneous language
regarding the limitation of exotic entertainment by county
commissions.
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 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.
NOTE: The purpose of this bill is to remove extraneous
language regarding the limitation of exotic entertainment by county
commissions.
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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