COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 73
(By Senators Bowman, Buckalew, Kimble, Sharpe, Ball and White)
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[Originating in the Committee on the Judiciary;
reported March 4, 1998.]
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A BILL to amend article one, chapter seven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new section, designated section four-a;
to amend article twelve, chapter eight of said code by
adding thereto a new section, designated section five-c; and
to amend and reenact section twelve, article seven, chapter
sixty of said code, all relating to restricting businesses
from offering nude dancing as entertainment; allowing
municipalities and county commissions to adopt zoning
ordinances restricting nude dancing; requiring the alcohol
beverage control commissioner to promulgate rules to
prohibit nude dancing as entertainment in private clubs in
counties or municipalities in which such ordinances are in
effect; defining the term "nude"; providing criminal
penalties; and making certain technical revisions.
Be it enacted by the Legislature of West Virginia:
That section article one, chapter seven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section four- a; that article twelve, chapter eight of said code be amended by
adding thereto a new section, designated section five-c; and that
section twelve, article seven, chapter sixty of said code be
amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-4a. Authority to enact zoning ordinance restricting nude
dancing.
(a) In addition to all other powers and duties conferred by
law upon county commissions as set forth in this article, the
governing body of any county may adopt a zoning ordinance
prohibiting businesses from offering nude dancing as
entertainment within the unincorporated area of the county or any
portion thereof.
(b) A county commission may enact an ordinance pursuant to
subsection (a) of this section, notwithstanding that it has not
adopted an ordinance creating a planning commission or created or
implemented a comprehensive plan for development pursuant to the
provisions of article twenty-four, chapter eight of this code.
(c) As used in this section, "nude" means a state of undress
in which male or female genitalia or female breasts are exposed.
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. Authority to enact zoning ordinance restricting nude
dancing.
(a) In addition to all other powers and duties conferred by
law upon municipal corporations as set forth in this article, the
governing body of any municipality may adopt a zoning ordinance
prohibiting businesses from offering nude dancing as
entertainment within all or any designated part of the
municipality.
(b) A municipality may enact an ordinance pursuant to
subsection (a) of this section, notwithstanding that it has not
adopted an ordinance creating a planning commission or created or
implemented a comprehensive plan for development pursuant to the
provisions of article twenty-four, chapter eight of this code.
(c) As used in this section, "nude" means a state of undress
in which male or female genitalia or female breasts are exposed.
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 licensee, or agent, employee or
member thereof, on such licensee's premises to:
(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 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
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 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 licensee to advertise in any news
media or other means, outside of the licensee's premises, the
fact that alcoholic liquors may be purchased thereat.
(c) On or before the first day of July, one thousand nine hundred ninety-eight, the commissioner shall promulgate an
emergency rule and propose for legislative promulgation a rule
pursuant to the provisions of chapter twenty-nine-a of this code
which prohibits licensees from offering nude dancing as
entertainment where the licensee's premises are located in a
municipality or county which has, subsequent to the licensee's
offering of nude dancing as entertainment, adopted a zoning
ordinance to prohibit businesses from offering nude dancing as
entertainment within the area in which the licensee's premises
are located. As used in this subsection, the term "nude" shall
mean a state of undress in which male or female genitalia or
female breasts are exposed.
(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
county jail or regional jail facility for a period not to exceed
one year, or both fined and imprisoned and confined.
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(NOTE: The purpose of this bill is to allow municipalities
and county commissions to determine by zoning ordinances the
location of private clubs offering nude dancing and to require
the ABCC commissioner to promulgate rules relating to licensing
of existing clubs in violation of subsequent ordinances.
§§7-1-4a and 8-12-5c are new; therefore, strike-throughs and
underscoring have been omitted.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language that would be added.)