Senate Bill No. 417
(By Senator Boley)
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[Introduced March 19, 1993; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section four, article one, chapter
seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to ordinance
concerning obscene matter.
Be it enacted by the Legislature of West Virginia:
That section four, article one, chapter seven of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-4. County commission authority to enact ordinance;
ordinance provisions defining terms; restricting certain
activities in relation to obscene matter; and establishing
penalties for violations.
(a) In addition to all other powers which county commissions
now possess by law, county commissions may adopt the ordinance
provided in subsection (b) of this section.
A county commission when adopting this ordinance may deletetherefrom such portions of paragraph (A), subdivision (4),
subsection (b) of this section that it deems appropriate.
(b) The ordinance which county commissions may adopt
pursuant to the power granted them under subsection (a) of this
section shall be:
Section 1. Definitions.
For purposes of this ordinance:
(1) "Knowingly" means to have knowledge of or to be aware of
the content or character of obscene matter.
(2) "Matter" means any book, magazine, newspaper or other
printed or written material, or any picture, drawing or
photograph, motion picture, or other visual representation, or
live conduct, or any recording, transcription or mechanical,
chemical or electrical reproduction, or any other articles,
equipment, machines or materials.
(3) "Individual" means any human being regardless of age.
(4) "Obscene" means matter which the average a reasonable
adult individual applying contemporary community standards would
find (i) taken as a whole, appeals to the prurient interest; (ii)
depicts or describes in a patently offensive way ultimate sexual
acts, normal or perverted, actual or simulated; and (iii) the
matter, taken as a whole, lacks serious literary, artistic,
political or scientific value, and which either:
(A) Depicts or describes patently offensive representation
of masturbation, excretory functions, lewd exhibition of the
genitals, sodomy, fellatio, cunnilingus, bestiality, sadism,masochism; or
(B) Depicts or describes nudity or sexual acts of persons,
male or female, below the age of eighteen years.
(5) "Person" means any individual, partnership, firm,
association, corporation or other legal entity.
(6) "Prepare" means to produce, publish or print.
(7) "Public display" means the placing of material on or in
a billboard, viewing screen, theatre, marquee, newsstand, display
rack, window, showcase, display case or similar public place so
that material can be purchased or viewed by individuals.
Section 1a. Injunctive relief.
The circuit court shall have jurisdiction to issue an
injunction to enforce the purposes of this ordinance upon
petition by the prosecuting attorney or any citizen of the county
who can show a good faith and valid reason for making such
application. No bond shall be required unless for good cause
shown.
Section 2. Activities prohibited; penalties.
Any person who knowingly sends or causes to be sent or
causes to be brought into the county of (name of county) for
sale, rent or public display, or prepares, sells, rents or makes
a public display, or in the county of (name of county) offers to
prepare, sell, rent or make a public display, or has in his
possession with the intent to sell, rent or make a public display
of any obscene matter to any individual, is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined notmore than five hundred dollars or imprisoned in the county jail
not more than thirty days or both fined and imprisoned. A
person convicted of a second or subsequent offense under this
ordinance is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not more than one thousand dollars or
imprisoned in the county jail not more than six months or both
fined and imprisoned.
Section 3. Prosecution by presentment or indictment.
No person may be prosecuted for an offense under this
ordinance except by indictment or information.
Section 4. Employees acting within scope of employment
shall not be prosecuted.
No employee shall be guilty of a violation of this ordinance
when such employee is a projectionist, ticket taker, usher, or
when such employee prepares, sells, rents or makes a public
display of obscene matter while acting within the scope of his
regular employment, unless such employee has a proprietary
interest in such obscene matter or is a shareholder or officer of
a corporation which has a proprietary interest in such obscene
matter.
Section 5. Exceptions.
Nothing in this ordinance shall be construed so as to apply
to any person exercising a right secured by the constitution or
laws of this state or of these United States.
NOTE: The purpose of this bill is to reconcile the sectionto a recent federal court decision.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.