Senate Bill No. 138
(By Senators Snyder, Hunter and Anderson)
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[Introduced January 10, 2002; referred to the Committee
on the Judiciary.]
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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, 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 the
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 the 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
the 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 considered to be a sale, assignment or transfer of a license under this section. A license shall may 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 two. On or before the first
day of May June, two thousand two, 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 two.
(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.