Senate Bill No. 532
(By Senators Hunter, Bowman, Ross, Minear and Helmick)
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[Introduced March 20, 2001; referred to the Committee on the Judiciary.]
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A BILL to repeal section twenty-three, article four, chapter sixty of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend article one, chapter seven of said code by adding thereto two new sections, designated sections three-hh and three-ii; to amend article twelve, chapter eight of said code by adding thereto two new sections, designated sections five-c and five-d; and to amend and reenact section twelve, article seven, chapter sixty of said code, all relating to exotic entertainment; authorizing county commissions and municipalities to enact ordinances to license and regulate businesses offering exotic entertainment; authorizing county commissions and municipalities to enact ordinances to regulate the location of businesses offering exotic entertainment; establishing certain requirements for the ordinances; prohibiting private clubs licensed by the alcohol beverage control commissioner from offering exotic entertainment; authorizing the promulgation of rules; and establishing criminal penalties.

Be it enacted by the Legislature of West Virginia:
That section twenty-three, article four, chapter sixty of the code of West Virginia, one thousand nine hundred thirty-one, as amended

CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.

§7-1-3hh. Authority of counties to enact ordinances restricting the location of business offering exotic entertainment.

(a) 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 section three-ii of this article. Notwithstanding any other provision of this code to the contrary, no ordinance may apply to or affect any municipal corporation that has adopted and has in effect an ordinance that provides for the restriction of the location of exotic entertainment businesses pursuant to the authority granted in section five-d, article twelve, chapter eight of this code.
(b) Any person adversely affected by an ordinance enacted pursuant to the authority granted in subsection (a) of this section is entitled to seek judicial review with regard to whether the ordinance impermissibly burdens his or her right to establish a business offering exotic entertainment.

§7-1-3ii. Authority of counties to govern business of exotic entertainment ordinance provisions; defining terms; restricting certain activities in relation to exotic entertainment and establishing penalties for violations.

(a) For the purposes of this section:
(1) "Exotic entertainment" means live entertainment, dancing or other services conducted while semi-nude in a commercial setting or for profit.
(2) "Semi-nude" 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) A county commission may, by order entered of record, adopt an ordinance that provides for the licensing of and regulation of businesses offering exotic entertainment when carried on in the county. Notwithstanding any other provision of this code to the contrary, no ordinance may apply to or affect any municipal corporation that has adopted and has in effect an ordinance that provides for the regulation of exotic entertainment businesses pursuant to the authority granted in section five-c, article twelve, chapter eight of this code.
(c) Any ordinance enacted pursuant to the authority granted in this section shall require that an application for a license to conduct an exotic entertainment business contain the following information:
(1) The name of the applicant;
(2) If the applicant is an unincorporated association, the names and addresses of all the members of its governing board;
(3) If the applicant is a corporation, the names and addresses of all its officers and directors;
(4) The place at which the applicant will conduct its operations and whether that place is owned or leased by the applicant;
(5) The name of the owner of the place at which the applicant will conduct its operation, if not the same as the applicant; and
(6) The number of members of the applicant.
(d) An ordinance enacted pursuant to the authority granted in this section shall provide that:
(1) The application for a permit and any renewal of the license be accompanied by a license fee not to exceed one hundred dollars;
(2) A decision to grant or deny a license to engage in an exotic entertainment business will be made within thirty days of receipt of the application;
(3) Any licensee operating an exotic entertainment business may not employ any person under the age of eighteen years;
(4) The license be granted if all the following criteria have been met:
(A) The applicant is at least eighteen years of age;
(B) The applicant has not been convicted of a violation of any of 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;
(C) 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 state that, if committed or attempted in this state, would have been punishable as one or more of the offenses set forth in this paragraph.
(D) 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;
(E) The premises to be used for the exotic entertainment business is located in an area that an ordinance has declared to be eligible for the conducting of the business; and
(F) The applicant has not had a permit under the ordinance suspended or revoked within five years preceding the date of the application; and
(5) A license is effective for one year and may be renewed upon the same showing as required for the issuance of the initial license, together with the payment of renewal fees, if any. (e) A decision denying, suspending, revoking or refusing to issue a license under an ordinance authorized by this section is subject to prompt review in the circuit court of the county in which the business is or is intended to be located and, notwithstanding any provisions in this code to the contrary, exhaustion of administrative remedies is not a condition precedent to the right to seek judicial review. An action brought pursuant to this section shall be given precedence over all other civil matters on the court's docket.
CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST MUNICIPALITIES.

§8-12-5c. Municipal authority to enact ordinance; ordinance provisions defining terms; restricting certain activities in relation to exotic entertainment and establishing penalties for violations.

(a) For the purposes of this section, the term "exotic entertainment" has the same meaning given it in section three-ii, article one, chapter seven of this code.
(b) A municipality and its governing body may, by order entered of record, adopt an ordinance that provides for the licensing and the regulation of businesses offering exotic entertainment when carried on in the municipality.
(c) Any ordinance enacted pursuant to the authority granted in this section shall require that an application for a license to conduct an exotic entertainment business contain the following information:
(1) The name of the applicant;
(2) If the applicant is an unincorporated association, the names and addresses of all the members of its governing board;
(3) If the applicant is a corporation, the names and addresses of all its officers and directors;
(4) The place at which the applicant will conduct its operations and whether that place is owned or leased by the applicant;
(5) The name of the owner of the place at which the applicant will conduct its operation, if not the same as the applicant; and
(6) The number of members of the applicant.
(d) An ordinance enacted pursuant to this section shall provide that:
(1) The application for a license and any renewal of a license be accompanied by a license fee not to exceed one hundred dollars;
(2) A decision to grant or deny a license to engage in a business offering exotic entertainment shall be made within thirty days of receipt of the application;
(3) Any licensee operating an exotic entertainment business may not employ any person under the age of eighteen years;
(4) The license be granted if all the following criteria are met:
(A) The applicant is at least eighteen years of age;
(B) The applicant has not been convicted of a violation of any of 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;
(C) 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 state that, if committed or attempted in this state, would have been punishable as one or more of the offenses set forth in this paragraph;
(D) 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;
(E) The premises to be used for the exotic entertainment business is located in an area in which an ordinance has declared the business may be conducted; and
(F) The applicant has not had a permit issued under this ordinance or any other county or municipal ordinance regulating exotic entertainment businesses in this state suspended or revoked within the five years preceding the date of the application; and
(5) Any license issued under the provisions of an ordinance enacted pursuant to this section is effective for one year and may be renewed upon the same showing as required for the issuance of the initial license, together with the payment of renewal fees, if any.
(e) A decision denying, suspending, revoking or refusing to issue a license under an ordinance authorized by this section is subject to prompt review in the circuit court of the county in which the business is or is intended to be located and, notwithstanding any provisions in this code to the contrary, exhaustion of administrative remedies is not a condition precedent to the right to seek judicial review. An action brought pursuant to this section shall be given precedence over all other civil matters on the court's docket.

§8-12-5d. Authority to enact ordinance restricting the location of businesses offering exotic entertainment.

(a) Notwithstanding the provisions of section one, article eleven, chapter eight of this code, in addition to all other powers of municipalities, every municipality and the governing body of the municipality may adopt an ordinance that limits the areas of the municipality in which businesses may offer exotic entertainment, as that term is defined in section three-ii, article one, chapter seven of this code.
(b) Any person adversely affected by an ordinance enacted pursuant to the authority of subsection (a) of this section is entitled to seek judicial review with regard to whether the ordinance impermissibly burdens his or her right to establish a business offering exotic entertainment.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

ARTICLE 7. LICENSES TO PRIVATE CLUBS.

§60-7-12. Certain acts of licensee prohibited; criminal penalties.

(a) It is unlawful for any No licensee, or agent, employee or member thereof of a licensee on such the licensee's premises to may:
(1) Sell or offer for sale any alcoholic liquors other than from the original package or container;
(2) Authorize or permit any disturbance of the peace; obscene, lewd, immoral or improper entertainment, conduct or practice, gambling or any slot machine, multiple coin console machine, multiple coin console slot machine or device in the nature of a slot machine;
(3) Sell, give away or permit the sale of, gift to or the procurement of any nonintoxicating beer, wine or alcoholic liquors for or to, or permit the consumption of nonintoxicating beer, wine or alcoholic liquors on the licensee's premises, by any person less than twenty-one years of age;
(4) Sell, give away or permit the sale of, gift to or the procurement of any nonintoxicating beer, wine or alcoholic liquors, for or to any person known to be deemed legally incompetent, or for or to any person who is physically incapacitated due to consumption of nonintoxicating beer, wine or alcoholic liquor or the use of drugs;
(5) Sell, give or dispense nonintoxicating beer, wine or alcoholic liquors in or on any licensed premises or in any rooms directly connected therewith, between the hours of three o'clock a.m. and one o'clock p.m. on any Sunday;
(6) Permit the consumption by, or serve to, on the licensed premises any nonintoxicating beer, wine or alcoholic liquors, covered by this article, to any person who is less than twenty-one years of age;
(7) With the intent to defraud, alter, change or misrepresent the quality, quantity or brand name of any alcoholic liquor;
(8) Sell or offer for sale any alcoholic liquor to any person who is not a duly elected or approved dues paying member in good standing of said private club or a guest of such the member;
(9) Sell, offer for sale, give away, facilitate the use of or allow the use of carbon dioxide, cyclopropane, ethylene, helium or nitrous oxide for purposes of human consumption except as authorized by the commissioner;
(10) (A) Employ any person who is less than eighteen years of age in a position where the primary responsibility for such the employment is to sell, furnish or give nonintoxicating beer, wine or alcoholic liquors to any person;
(B) Employ any person who is between the ages of eighteen and twenty-one who is not directly supervised by a person aged twenty-one or over in a position where the primary responsibility for such the employment is to sell, furnish or give nonintoxicating beer, wine or alcoholic liquors to any person; or
(11) Violate any reasonable rule of the commissioner.
(b) It is unlawful for any No licensee to may advertise in any news media or other means, outside of the licensee's premises, the fact that alcoholic liquors may be purchased thereat at the premises.
(c)(1) Effective the first day of September, two thousand one, no licensee may offer "exotic entertainment," as that term is defined in section three-ii, article one, chapter seven.
(2) Before the first day of September, two thousand one, 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 subsection.
(c) (d) Any person who violates any of the foregoing provisions is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than one thousand dollars, or imprisoned confined in the a county or regional jail for a period not to exceed one year, or both fined and imprisoned confined.

NOTE: The purpose of this bill is to authorize counties and municipalities to regulate businesses offering exotic entertainment and to prohibit private clubs licensed by the ABCC from offering exotic entertainment.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§§7-1-3hh and 3ii, and §§8-12-5c and 5d are new; therefore, strike-throughs and underscoring have been omitted.