H. B. 3182


(By Delegates L. Smith, Louisos Prunty,
Canterbury, Ashley, Hall and Flanigan)
[Introduced March 30, 2001; referred to the
Committee on the Judiciary.]



A BILL to amend chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article eight-g, relating to the operation and activities of sexually oriented businesses.

Be it enacted by the Legislature of West Virginia:
That chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article eight-g, to read as follows:
ARTICLE 8G. REGULATION OF SEXUALLY ORIENTED BUSINESSES
§61-8G-1. Short title.
This act shall be known and may be cited as the "Sexually Oriented Businesses Regulation Act."
§61-8G-2. Legislative findings.
The Legislature finds and declares as follows:
(1) Crime statistics show that all types of crimes, especially sex-related crimes, occur with more frequency in neighborhoods where sexually oriented businesses are located.
(2) Nude dancing in adult establishments encourages prostitution, increases sexual assaults and attracts other criminal activity.
(3) Nude dancing in adult establishments increases the likelihood of drug-dealing and drug use.
(4) Persons frequent certain adult theaters, adult arcades, and other sexually oriented businesses for the purpose of engaging in sex within the premises of such sexually oriented businesses.
(5) It is desirable to reduce the incidences of crime, disease and public sexual acts that occur in and around sexually oriented businesses.
(6) It is the purpose of this article to regulate the operation of sexually oriented businesses in order to promote the health, safety, morals and general welfare of the citizens of this state.
§61-8G-3. Definitions.
(a) "Adult arcade" means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of "specified sexual activities" or "specified anatomical areas."
(b) "Adult bookstore" or "adult video store" means a commercial establishment that, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:
(1) Books, magazines, periodicals or other printed matter or photographs, films, motion picture, video cassettes or video reproductions, slides, or other visual representations that depict or describe "specified sexual activities" or "specified anatomical areas"; or
(2) Instruments, devices or paraphernalia that are designed for use in connection with "specified sexual activities."
A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing "specified sexual activities" or "specified anatomical areas" and still be categorized as "adult book store" or "adult video store." These other business purposes will not serve to exempt such commercial establishments from being categorized as an adult bookstore or adult video store so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials that depict or describe "specified sexual activities" or "specified anatomical areas." A principal business purpose need not be a primary use of an establishment so long as it is a significant use based upon the visible inventory or commercial activity of the establishment.
(c) "Adult cabaret" means a club, nightclub, bar, restaurant or similar commercial establishment that regularly features:
(1) Persons who appear in a state of nudity or semi-nudity; or
(2) Live performances that are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or
(3) Films, motion pictures, video cassettes, slides or other photographic reproductions that are characterized by the depiction or description of "specified sexual activities;" or "specified anatomical areas"; or
(4) Persons who engage in erotic dancing or performances that are intended for the sexual interests or titillation of an audience or customers.
(d) "Adult motion picture theater" means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions are regularly shown that are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."
(e) "Adult theater" means a theater, concert hall, auditorium or similar commercial establishment that regularly features persons who appear, in person, in a state of nudity and/or semi-nudity, and/or live performances that are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities."
(f) "Hours of operation" means the period of day a sexually oriented business may offer for use, view, rent, sale or consumption, entertainment, beverages or other types of products or services.
(g) "Live theatrical performance" means a play, opera, ballet, concert or musical drama.
(h) "Nude model studio" means any place where a person who appears in a state of nudity or displays "specified anatomical areas" is provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons for consideration.
(i) "Nudity" or a "state of nudity" means the appearance of a human bare buttock, anus, anal cleft or cleavage, pubic area, male genitals, female genitals or vulva, with less than a fully opaque covering; or a female breast with less than a fully opaque covering of any part of the areola; or human male genitals in a discernibly turgid state even if completely and opaquely covered.
(j) "Semi-nude or semi-nudity" means the appearance of the female breast below a horizontal line across the top of the areola at its highest point. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt or leotard.
(k) "Sexual encounter center" means a business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration:
(1) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
(2) Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nudity.
(l) "Sexually oriented business" means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motion picture theater, adult theater, nude model studio or sexual encounter center.
(m) "Specified anatomical areas" means:
(1) The human male genitals in a discernibly turgid state, even if fully and opaquely covered;
(2) Less than completely and opaquely covered human genitals, pubic region, buttocks or a female breast below a point immediately above the top of the areola.
(3) Notwithstanding any other provision in this article, movies rated G, PG, PG-13, or R by the Motion Picture Association of America (MPAA), or live theatrical performances with serious artistic, social or political value, that depict or describe specified anatomical areas, are expressly exempted from the provisions of this ordinance.
(n) "Specified sexual activities" means and includes any of the following:
(1) The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts, whether covered or uncovered;
(2) Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy;
(3) Masturbation, actual or simulated; or
(4) Excretory functions as part of or in connection with any of the activities set forth in (A) through (C) above.
(5) Notwithstanding any other provision in this chapter, movies rated G, PG, PG-13, or R by the Motion Picture Association of America (MPAA), or live theatrical performances with serious artistic, social or political value, that depict or describe specified sexual activities, are expressly exempted from the provisions of this ordinance.
§61-8G-4. Hours of operation; prohibitions
A sexually oriented business, as defined in section three, shall not remain open at any time between the hours of 11:00 p.m. and 10:00 a.m. on Monday through Saturday. No sexually oriented business shall open or be open on Sundays or legal holidays recognized by this state.
§61-8G-5. Regulation of certain activities; prohibitions.
(a) No person shall appear or be allowed to appear in person in a nude or semi-nude condition on a sexually oriented business premises, unless the person is an employee who, while nude or semi-nude, is at least ten feet from any patron or customer and on a stage raised at least two feet from the floor.
(b) No person shall, while nude or semi-nude, solicit or be allowed to solicit any pay or gratuity from any patron or customer pay or give, or be allowed to pay or give, any gratuity to any employee while the employee is nude or semi-nude on the sexually oriented business premises.
(c) No employee shall, while nude or semi-nude, touch or be allowed to touch, a patron, or the clothing of a patron, while the employee is on the sexually oriented business premises, nor shall a patron touch, or be allowed to touch, a nude or semi-nude employee or the clothing of a nude or semi-nude employee, while the employee is on the sexually oriented business premises.
§61-8G-6. Preemption.
Notwithstanding any provision in this article to the contrary, local government bodies may enact additional regulations as they consider necessary to eliminate, reduce or control the adverse secondary effects caused by sexually oriented businesses within their communities.
§61-8G-7. Repeal.
All acts and parts of acts are repealed insofar as they are inconsistent with this article.
§61-8G-8. Penalties for violation.
Violation of the provisions of this article shall constitute a misdemeanor punishable by a fine of not more than one thousand dollars. A fourth violation of this article within a sixty day period shall constitute a felony, punishable by fine of up to ten thousand dollars and/or imprisonment up to one year in a state correctional facility.
§61-18G-9. Effective date.
This article shall take effect thirty days from the date of passage.

NOTE: The purpose of this bill is to regulate sexually oriented businesses to promote the morals and general welfare of the citizens of the state.

This article is new; therefore, strike-throughs and underscoring have been omitted.