Senate Bill No. 722

(By Senators Snyder and Hunter)

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[Originating in the Committee on the Judiciary;


reported April 3, 2001.]

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A BILL to amend and reenact section twenty-three, article four, chapter sixty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to regulating businesses offering exotic entertainment; authorizing the commissioner of the alcohol beverage control commission to license all businesses offering exotic entertainment; defining terms; removing time periods in which application for license may be made; establishing standards for approval of application; requiring commissioner to issue license if certain criteria are met; setting time limit in which decision on application must be rendered; providing for prompt judicial review; providing that exhaustion of administration remedies is not required; setting effective date; and directing commissioner to promulgate emergency rules.

Be it enacted by the Legislature of West Virginia:
That section twenty-three, article four, chapter sixty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 4. LICENSES.
§60-4-23. License to operate a facility where exotic entertainment is offered; definitions; restrictions, regulations and prohibitions; prohibitions against minors; application, renewal, license fee, restrictions on transfer; effective date; legislative rules; unlawful acts and penalties imposed.

(a) For purposes of this section:
(1) "Exotic entertainment" means live nude dancing, nude service personnel or live nude entertainment, and "nude" means any state of undress in which male or female genitalia or female breasts are exposed live entertainment, dancing or other services conducted by persons while nude or semi-nude in a commercial setting or for profit.
(2) "Semi-nude" means the appearance of:
(A) The female breast below a horizontal line across the top of the areola at its highest point, including the entire lower portion of the human female breast, but does not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt, leotard, bathing suit or other wearing apparel provided the areola is not exposed, in whole or in part;
(B) 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
(C) A human male genital in a discernibly turgid state even if completely and opaquely covered.
(2) (3) "Places set apart for traditional family-oriented naturism" means family nudist parks, clubs and resorts chartered by the American association for nude recreation or the naturist society, including all of their appurtenant business components, and also including places temporarily in use for traditional family- oriented naturist activities.
(b) No person may operate any commercial facility where exotic entertainment is permitted or offered unless such person is granted a license by the commissioner to operate a facility where exotic entertainment may be offered. The provisions of this subsection apply whether or not alcoholic liquor, wine or nonalcoholic beer is legally kept, served, sold or dispensed in a facility, or purchased for use in a facility, or permitted to be brought by others into a facility and whether or not such person holds any other license or permit issued pursuant to chapter sixty of this code.
(c) A licensee is subject to all the regulatory provisions of article seven of this chapter, whether or not the licensee is otherwise a private club. The commissioner shall have all the powers and authorization granted under article seven of this chapter to regulate, restrict and sanction a licensee under this section. No licensee may purchase, keep, sell, serve, dispense or purchase for use in a licensed facility, or permit others to bring into the facility, any alcoholic liquor, wine or nonintoxicating beer without having the appropriate license therefor. No licensee may operate a private club without being licensed therefor.
(d) No person or licensee may allow a person under the age of eighteen years to perform as an exotic entertainer. No person under the age of twenty-one years, other than a performing exotic entertainer, may be allowed to be in a commercial facility on any day on which any exotic entertainment is offered therein. No licensee may hold special nonalcoholic entertainment events for persons under age twenty-one pursuant to the provisions of section eight, article seven of this chapter in the licensed facility.
(e) Any person operating a commercial facility where exotic entertainment is offered on the effective date of this section may apply to the commissioner for a license to operate a facility where exotic entertainment may be offered. Applications must be filed with the commissioner on or before the first day of July, two thousand; thereafter no application for license may be received by the commissioner. The commissioner may shall issue a license to a person complying with the provisions of this chapter and who meets the requirements imposed by subsection (f) of this section. Upon application for renewal, the commissioner shall annually, on the first day of July of each succeeding year, renew the license of any licensee then in compliance with the provisions of this chapter. The commissioner shall specify the form of application and information required of applicants and licensees. No license which has lapsed, been revoked or expired without renewal may be reissued. The commissioner shall render a decision on each application within thirty days of receipt of such application.
(f) The commissioner shall issue the license to conduct a business offering exotic entertainment if all the following criteria have been met in addition to any other applicable requirements imposed by this chapter:
(1) The applicant is at least twenty-one years of age;
(2) The applicant has not been convicted of a violation of any of the provisions of article eight-a, eight-b or eight-c, chapter sixty-one of this code or of a violation of a law of any other state that, if committed or attempted in this state, would have been punishable as one of the offenses set forth in this paragraph;
(3) The applicant has not been convicted of any felony offense involving the sale of a controlled substance specified in section two hundred four, two hundred six, two hundred eight, two hundred ten or two hundred twelve, article two, chapter sixty-a of this code or of an offense in any other state that, if committed or attempted in this state, would have been punishable as one or more of the offenses set forth in this paragraph.
(4) The premises to be used for the exotic entertainment business has been approved as being in compliance with applicable health, fire and building codes by the entity responsible for investigating compliance with the codes;
(5) The premises to be used for the exotic entertainment business is not located in an area that any county or municipal ordinance has declared to be eligible for the conducting of such business; and
(6) The applicant has not had a license issued under this section or a similar license issued by another jurisdiction suspended or revoked within five years preceding the date of the application.
(g) A decision denying, suspending, revoking or refusing to issue a license is subject to direct review in the circuit court of the county in which the business is or is intended to be located and, notwithstanding the provisions of article five, chapter twenty- nine-a and any other provisions of this code to the contrary, exhaustion of administrative remedies is not a condition precedent to the right to seek judicial review. An action brought pursuant to this section shall be given precedence over all other civil matters on the court's docket.
(f) (h) A person to whom a license is issued or renewed under the provisions of this section shall pay annually to the commissioner a license fee of three thousand dollars. A municipal corporation wherein any such licensee is located shall issue a municipal license to any person to whom the commissioner has issued a license and may impose a license fee not in excess of the state license fee.
(g) (i) A person shall not sell, assign or otherwise transfer a license without the prior written approval of the commissioner. For purposes of this section, the merger of a licensee or the sale of more than fifty percent of the outstanding stock of or partnership interests in the licensee shall be deemed to be a sale, assignment or transfer of a license under this section. A license shall not be transferred to another location, except within the county of original licensure. A transferee of a licensed facility may apply for reissuance of the transferor's license if the transferee applicant otherwise qualifies for a license. The commissioner is authorized to propose the promulgation of a legislative rule in accordance with the provisions of chapter twenty-nine-a of this code, to implement the provisions of this subsection.
(h) (j) This section shall be effective upon passage by the Legislature in the year two thousand one. On or before the first day of May June, two thousand one, the commissioner shall promulgate an emergency legislative rule pursuant to the provisions of chapter twenty-nine-a of this code to effectuate the provisions of this section, and shall propose a legislative rule therefor, for consideration by the Legislature, prior to the last day of December, two thousand one.
(i) (k) Any person who violates any provision of this section, or principal of a firm or corporation which violates any provision of this section, or licensee, agent, employee or member of any licensee who violates any provision of this section, or who violates any of the provisions of section twelve, article seven of this chapter, on the premises of a licensed facility, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than three thousand dollars, or imprisoned for a period not to exceed one year, or both so fined and imprisoned.
(j) (l) The provisions of this section do not apply to places set apart for traditional family-oriented naturist activities.

NOTE: The purpose of this bill is to authorize the alcohol beverage control commissioner to license businesses offering exotic entertainment.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.