Senate Bill No. 695
(By Senators Bailey, Kessler and White)
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[Introduced February 18, 2008; referred to the Committee on the
Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §61-13-1, §61-13-2,
§61-13-3 and §61-13-4, all relating to the regulation of
sexually oriented businesses; purposes and legislative
findings; definitions; regulations; and 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 §61-13-1, §61-13-2,
§61-13-3 and §61-13-4, all to read as follows:
ARTICLE 13. WEST VIRGINIA COMMUNITY DEFENSE ACT.
§61-13-1. Purpose and legislative findings.
(a) It is the purpose of this article to promote the health,
safety, and general welfare of the people of West Virginia by
establishing reasonable regulations to prevent the deleterious
secondary effects of sexually oriented businesses. The regulations in this article have neither the purpose nor effect of imposing a
limitation or restriction on the content or reasonable access to
any communicative materials, including sexually oriented materials.
(b) The prohibitions in this article are based upon and
justified by the adverse secondary effects of sexually oriented
businesses identified in numerous judicial decisions and reports
concerning such secondary effects including, but not limited to:
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002);
City of Erie v. Pap's A.M., 529 U.S. 277 (2000);
Barnes v. Glen
Theatre, Inc., 501 U.S. 560 (1991);
City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1986),
Young v. American Mini
Theatres, 427 U.S. 50 (1976),
California v. LaRue, 409 U.S. 109
(1972); which support the following findings:
(1) Sexually oriented businesses, as a category of commercial
uses, are associated with a wide variety of adverse secondary
effects including, but not limited to, lewdness, public indecency,
prostitution, potential spread of disease, illicit drug use and
drug trafficking, personal and property crimes, negative impacts on
surrounding properties, blight, litter, and sexual assault and
exploitation.
(2) Each of the foregoing negative secondary effects
constitutes a harm that the state has a substantial government
interest in preventing or abating, or both. This substantial
government interest in preventing secondary effects is independent of any comparative analysis between sexually oriented and
nonsexually oriented businesses. The cases and documentation
relied on in this article are reasonably believed to be relevant to
said secondary effects.
(c) The provisions of this article shall be construed so as to
further the purposes of this article as set forth in division (a)
of this section.
(d) Nothing in this article shall be construed to preempt or
prevent counties, municipal corporations and townships from
adopting or enforcing laws concerning sexually oriented businesses
that are as restrictive or more restrictive than the provisions in
this article.
§61-13-2. Definitions.
As used in this article:
(1) "Adult bookstore" or "adult video store" means a
commercial establishment that has as a significant or substantial
portion of its stock in trade or inventory in, derives a
significant or substantial portion of its revenues from, devotes a
significant or substantial portion of its interior business or
advertising to, or maintains a substantial section of its sales or
display space for the sale or rental, for any form of
consideration, of any of the following: Books, magazines,
periodicals, or other printed matter, or photographs, films, motion
pictures, video cassettes, compact discs, slides, or other visual representations, that are characterized by their emphasis upon the
exhibition or description of specified sexual activities or
specified anatomical areas.
(2) "Adult cabaret" means a nightclub, bar, juice bar,
restaurant, bottle club or other commercial establishment,
regardless of whether alcoholic beverages are served, which
regularly features any of the following:
(A) Persons who appear in a state of nudity or seminudity; or
(B) Live performances that are characterized by the exposure
of specified anatomical areas or specified sexual activities.
(3) "Adult motion picture theater" means a commercial
establishment where films, motion pictures, videocassettes, slides,
or similar photographic reproductions which are characterized by
their emphasis upon the display of "specified sexual activities" or
"specified anatomical areas" are regularly shown to more than five
persons for any form of consideration.
(4) "Characterized by" means describing the essential
character or quality of an item.
(5) "Employee" means any person who performs any service on
the premises of a sexually oriented business, on a full-time,
part-time or contract basis, whether or not the person is
denominated an employee, independent contractor, agent or
otherwise. "Employee" does not include a person exclusively on the
premises for repair or maintenance of the premises or for the delivery of goods to the premises.
(6) "Licensed facility" means a commercial facility that is
licensed under section twenty-three, article four, chapter sixty of
this code.
(7) "Nudity," "nude" or "state of nudity" means the showing of
the human male or female genitals, pubic area, vulva or anus with
less than a fully opaque covering, or the showing of the female
breast with less than a fully opaque covering of any part of the
nipple and areola.
(8) "Operate" means to cause to function or to put or keep in
a state of doing business. "Operator" means any person on the
premises of a sexually oriented business who causes the business to
function or who puts or keeps in operation the business or who is
authorized to manage the business or exercise overall operational
control of the business premises.
(9) "Patron" means any person on the premises of a sexually
oriented business except:
(A) An operator or an employee of that sexually oriented
business; or
(B) A person who is on the premises exclusively for repair or
maintenance of the premises or for the delivery of goods to the
premises.
(10) "Person" means an individual, proprietorship,
partnership, corporation, association or other legal entity.
(11) "Premises" means the real property upon which the
sexually oriented business is located, and all appurtenances
thereto and buildings thereon, including, but not limited to, the
sexually oriented business, the grounds, private walkways, and
parking lots and/or parking garages adjacent thereto, under the
ownership, control, or supervision of the licensee.
(12) "Regularly" means and refers to the consistent or
repeated doing of the act so described.
(13) "Seminude" or "state of seminudity" means the showing of
the female breast below a horizontal line across the top of the
areola and extending across the top of the areola and extending
across the width of the breast at that point, or the showing of the
male or female buttocks. This definition shall include the lower
portion of the human female breast, but shall not include any
portion of the cleavage of the human female breasts exhibited by a
bikini, dress, blouse, shirt, leotard or similar wearing apparel
provided the areola is not exposed in whole or in part.
(14) "Sexual device" means any three dimensional object
designed and marketed for stimulation of the male or female human
genitals, anus, female breasts, or for sadomasochistic use or abuse
of oneself or others and shall include devices such as dildos,
vibrators, penis pumps and physical representations of the human
genital organs. Nothing in this subdivision shall be construed to
include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy.
(15) "Sexual device shop" means a commercial establishment
that regularly features sexual devices. Nothing in this definition
shall be construed to include any pharmacy, drug store, medical
clinic or any establishment primarily dedicated to providing
medical or healthcare products or services, nor shall this
definition be construed to include commercial establishments which
do not restrict access to their premises by reason of age.
(16) "Sexual encounter center" means a business or commercial
enterprise that, as one of its principal business purposes,
purports to offer for any form of consideration, physical contact
in the form of wrestling or tumbling between persons of the
opposite sex when one or more of the persons is nude or seminude.
(17) "Sexually oriented business" means an adult bookstore or
adult video store, an adult cabaret, an adult motion picture
theater, a sexual device shop or a sexual encounter center. For
purposes of this article, no business shall be classified as a
sexually oriented business by virtue of showing, selling, or
renting materials rated NC-17 or R by the motion picture
association of America.
(18) "Sexually oriented entertainment activity" means the
sale, rental or exhibition, for any form of consideration, of
books, films, video cassettes, magazines, visual images or live
performances which are characterized by an emphasis on the exposure or display of any specified anatomical areas or specified sexual
activity.
(19) "Specified anatomical areas" means and includes human
genitals, pubic region, buttocks, and female breast below a point
immediately above the top of the areola.
(20) "Specified sexual activity" means intercourse, oral
copulation, masturbation, sodomy or excretory functions as a part
of or in connection with any of these activities.
§61-13-3. Regulations governing sexually oriented businesses.
(a) No sexually oriented business shall be or remain open for
business between 12:00 midnight and 6:00 a.m. on any day, except
that a sexually oriented business that holds a liquor license
pursuant to section twenty-three, article four, chapter sixty of
this code, may remain open until the hour specified in that permit,
provided that it does not conduct, offer or allow sexually oriented
entertainment activity between 12:00 midnight and 6:00 a.m.
(b) While on the premises of a sexually oriented business:
(1) No employee, while nude or seminude, knowingly shall do
any of the following:
(A) Appear in the view of any patron unless the employee is at
least six feet from all patrons and on a stage at least two feet
above the floor;
(B) Touch any patron or the clothing of any patron; or
(C) While in the view of any patron, touch any other person who is nude or seminude;
(2) No patron knowingly shall touch any employee while that
employee is nude or seminude, or touch the clothing or costume of
any employee while that employee is nude or seminude;
(3) No employee of a sexually oriented business who regularly
appears nude or seminude on the premises of that sexually oriented
business shall knowingly be or remain within six feet of any
patron.
§61-13-4. Penalties.
(a) Any person who violates any provision of this article, or
principal of a firm or corporation which violates any provision of
this article, or licensee, agent, employee or member of any
licensee who violates any provision of this article, on the
premises of a licensed facility or sexually oriented business, 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.
(b) A fourth violation of this article on the premises of a
licensed facility or sexually oriented business within a sixty-day
period shall, upon conviction thereof, result in the suspension of
the license issued under section twenty-three, article four,
chapter sixty of this code to a licensed facility or sexually
oriented business for a period not to exceed thirty days.
(c) A sixth violation of this article on the premises of a
licensed facility or sexually oriented business within a calendar
year shall, upon conviction thereof, result in the revocation of
the license issued to a sexually oriented business or licensed
facility pursuant to section twenty-three, article four, chapter
sixty of this code.
NOTE: The purpose of this bill is to regulate the secondary
effects of sexually oriented businesses, establishing regulations
governing sexually oriented businesses and penalties.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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