Senate Bill No. 263

(By Senators Dittmar, By Request and Craigo)

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[Introduced January 30, 1998; 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 imposing greater penalties for the criminal offense of displaying obscene materials; and modifying the language of the statute in order to bring it into constitutional compliance.

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 delete therefrom 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 over the age of eighteen years.
(4) "Obscene" means matter which (i) the average 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 theater, marquee, newsstand, display rack, window, showcase, display case or similar public place so that material can be purchased or viewed by individuals.
Section 1a 2. 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 3. 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 or public display, or prepares, sells or makes a public display, or in the county of (name of county) offers to prepare, sell or make a public display, or has in his or her possession with the intent to sell or make a public display of any obscene matter to any individual, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred ten thousand dollars or imprisoned in the county jail or regional not more than thirty days one year or both fined and imprisoned. A person convicted of a second or subsequent offense under this ordinance is guilty of a misdemeanor felony and, upon conviction thereof, shall be fined not more than one twenty thousand dollars or imprisoned in the county jail a state correctional institution not more than six months two years or both fined and imprisoned.
Section 3 4. Prosecution by presentment or indictment.
No person may be prosecuted for an offense under this ordinance except by indictment or information.
Section 4 5. 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 or makes a public display of obscene matter while acting within the scope of his or her 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 impose greater penalties for the criminal offense of displaying obscene materials, to modify the language of the statute in order to bring it into constitutional compliance, and to correct one misspelling.

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