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.)