hb4594 intr

H. B. 4594

(By Delegate Ellem (By Request))

[Introduced February 22, 2002 ; referred to the

Committee on the Judiciary then Finance.]

A BILL to amend chapter forty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article one-b, relating to the regulation of pornography generally; regulating sexually oriented businesses; giving the commissioner of labor certain powers, duties and responsibilities; providing for a license and permit system; providing penalties for violations of certain provisions of the article; and establishing a special account in the state treasury for the deposit of certain funds.

Be it enacted by the Legislature of West Virginia:

That chapter forty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article one-b, to read as follows:

ARTICLE 1B. REGULATION AND CONTROL OF SEXUALLY ORIENTED BUSINESSES.

§47-1B-1. Purpose and findings.
In order to promote the health, safety and general welfare of the citizens of this state, this article provides for the reasonable regulation of sexually oriented businesses and enterprises and requires that computer services paid for with federal, state or local government funds include screening devices to prohibit access to unsolicited pornography.

The Legislature hereby finds and declares that the reasonable regulation of sexually oriented businesses and enterprises and the screening of pornography from publicly funded computers are required to further economic growth in this state by protecting and promoting wholesome family oriented communities and businesses. Economic development depends on the state's ability to attract and maintain businesses and industry and promote tourism which can only be accomplished by maintaining the characteristics of bucolic rural living and an atmosphere of vibrant small communities. The unregulated sexually oriented businesses and enterprises and the use of publicly funded computers to access pornography pose a threat to the economic well being of these communities and denigrate the quality of life for the citizens of this state.
§47-1B-2. Definitions.

As used in this article:

(a) "Adult" means any person over the age of twenty-one years of age.

(b) "Child pornography" means material that is predominantly sexually explicit with children and intended primarily for the purpose of sexual arousal.

(c) "Employee" means a person who works or performs in or for a sexually oriented business, or both, regardless of whether or not the person is paid a salary, wage or other compensation by the operator of the business.

(d) "Establishment" means and includes any of the following:

(1) The opening or commencement of any business as a new business;

(2) The conversion of an existing business, regardless of whether it currently exists as a sexually oriented business, to any of the sexually oriented businesses defined in this article;

(3) The addition of any of the sexually oriented businesses defined in this article to any other existing sexually oriented business; or

(4) The relocation of any sexually oriented business.

(e) "Nudity" or "state of nudity" means:

(1) The appearance of human bare buttock, anus, male or female genitals or the areola or nipple of the female breast; or

(2) A state of dress which fails to opaquely and fully cover a human buttocks, anus, male or female genitals, pubic region or areola or nipple of the female breast.

(f) "Operator" means and includes the owner, permit holder, custodian, manager, operator or person in charge of any permitted or licensed premises.

(g) "Obscenity" is defined by the United States supreme court and specifically defined by state or federal law and includes:

(1) Matter that an average person, applying contemporary adult community standards, would find, taken as a whole, appeals to the prurient interest, is intended to appeal to the prurient interest or is pandered to a prurient interest;

(2) An average person, applying contemporary adult community standards, would find depicts or describes, in a patently offensive way, sexually explicit conduct consisting of an ultimate sexual act, normal or perverted, actual or simulated, and excretory function, masturbation, lewd exhibitions of the genitals, or sadomasochistic sexual abuse; and

(3) A reasonable person would find, taken as a whole, lacks serious literary, artistic, political or scientific value.

(h) "Performance" means any play, dance or other live exhibition performed before an audience.

(i) "Permitted or licensed premises" means any premises that requires a license or permit, or both, and that is classified as a sexually oriented business.

(j) "Permit holder or licensee" means a person in whose name a permit or license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit or license.

(k) "Person" means an individual, proprietorship, partnership, corporation, association or other legal entity.

(l) "Pornography" means material that is predominantly sexually explicit and intended primarily for the purpose of sexual arousal.

(m) "Prostitution" means the act of engaging in sexual acts for money or other form of consideration.

(n) "Public building" means any building owned, leased or held by the United States, the state, the county, the city, any special district, school district or any other agency or political subdivision of the state or the United States, which building is used for governmental purposes.

(o) "Public park" or "recreation area" means public land which has been designated for park or recreational activities including, but not limited to, a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian or bicycle paths, open space, wilderness areas or similar public land.

(p) "Protected use" means any public park, religious institution, residential district, school, nursing or private care home.

(q) "Religious institution" means any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities.

(r) "Residential district or use" means a single family dwelling, duplex, townhouse, multiple family unit, mobile home park or subdivision.

(s) "School" means any public or private educational facility including, but not limited to, child day care facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, colleges and universities. The term "school" includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school.

(t) "Semi-nude" means a state of dress in which clothing covers no more than the genitals, pubic region and areola of the female breast, as well as portions of the body covered by supporting straps or devices.

(u) "Sexually oriented business" means an adult arcade, adult bookstore, adult novelty shop, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, massage parlor, sexual encounter establishment, escort, escort agency or nude model studio defined as follows:

(1) "Adult arcade" means an establishment where, for any form of consideration, one or more still or motion picture projectors, slide projectors, or similar machines or other image producing machines, for viewing by five or fewer persons each, are regularly used to show films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."

(2) "Adult bookstore," "adult novelty store" or "adult video store" means a commercial establishment which has as a significant or substantial portion of its stock-in-trade or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or advertising to the sale or rental, for any form of consideration, of any one or more of the following:

(A) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides or other visual representations which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas;"

(B) Instruments, devices or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others;

(C) An establishment may have other principal business purposes that do not involve the offering for sale, rental or viewing of materials depicting or describing "specified sexual activities" or "specified anatomical areas," and still be categorized as adult bookstore, adult novelty store or adult video store. The other business purposes do not exempt the establishments from being categorized as an adult bookstore, adult novelty store or adult video store so long as one of its principal business purposes is offering for sale or rental, for some form of consideration, the specified materials which depict or describe "specified anatomical areas" or "specified sexual activities."

(3) "Adult cabaret" means a nightclub, bar, restaurant "bottle club," "gentleman's club" or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features:

(A) Persons who appear nude or in a state of nudity or semi-nude;

(B) Live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities;" or

(C) Films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."

(4) "Adult motel" means a motel, hotel or similar commercial establishment which:

(A) Offers public accommodations, for any form of consideration, which provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas" and which advertises the availability of this sexually oriented type of material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising including, but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television;

(B) Offers a sleeping room for rent for a period of time less than ten hours; or

(5) "Adult motion picture theater" means a commercial establishment where films, motion pictures, video cassettes, slides or similar photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas" are regularly shown for any form of consideration.

(6) "Adult theater" means a theater, concert hall, auditorium, or similar commercial establishment which, for any form of consideration, regularly features persons who appear in a state of nudity or live performances which are characterized by exposure of "specified anatomical areas" or by "specified sexual activities."

(7) "Escort" means a person who, for any form of consideration, agrees or offers to act as a companion, guide or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.

(8) "Escort agency" means a person or business association who furnishes, offers to furnish or advertises to furnish escorts as one of its primary business purposes for a fee, tip or other consideration.

(9) "Massage parlor" means any place where, for any form of consideration or gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic treatments or any other treatment or manipulation of the human body which occurs as a part of or in connection with specified sexual activities, or where any person providing the treatment, manipulation or service related thereto, exposes his or her specified anatomical areas. The definition of sexually oriented businesses does not include the practice of massage in or by:

(A) A licensed hospital;

(B) A licensed physician, surgeon, chiropractor or osteopath;

(D) Trainers for any amateur, semiprofessional or professional athlete or athletic team or school athletic program.

(10) "Nude model studio" means any place where a person, who regularly appears in a state of nudity or displays specified anatomical areas for money or any form of consideration and is to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons.

(11) "Sexual encounter establishment" means a business or commercial establishment that, as one of its primary business purposes offers for any form of consideration a place where two or more persons may congregate, associate or consort for the purpose of engaging in specified sexual activities or the exposure of specified anatomical areas or activities when one or more of the persons is in a state of nudity or semi-nude. A sexually oriented business does not include an establishment where a medical practitioner, psychologist, psychiatrist or similar professional person licensed by the state engages in medically approved and recognized sexual therapy.

(v) "Specified anatomical areas" means and includes any of the following:

(1) Less than completely and opaquely covered human genitals, pubic region, buttocks, anus or female breasts below a point immediately above the top of the areola; or

(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

(w) "Specified sexual activities" means and includes any of the following:

(1) The fondling or other intentional touching of human genitals, pubic region, buttocks, anus or female breasts;

(2) Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy;

(3) Masturbation, actual or simulated;

(4) Human genitals in a state of sexual stimulation, arousal or tumescence;

(5) Excretory functions as part of or in connection with any of the activities set forth in subdivisions (1) through (4) of this subsection.

(x) "Substantial enlargement of a sexually oriented business" means increase in the floor areas occupied by the business by more than fifteen percent, as the floor areas exist on the effective date of this article.

(y) "Transfer of ownership or control of a sexually oriented business" means and includes any of the following:

(1) The sale, lease or sublease of the business;

(2) The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means;

(3) The establishment of a trust, gift or other similar legal devise which transfers ownership or control of the business, except for transfer by bequest or other operation of law upon the death of a person possessing the ownership or control.
§47-1B-3. Establishment and classification of businesses.

(a) No person may cause or permit the establishment of any sexually oriented business on any parcel of land, any portion of which is within one thousand feet of the right-of-way of an interstate highway. In no case may any sign advertising a sexually oriented business be visible from an interstate highway, entrance or exit ramp, regardless of whether the sign is located on the premises of the business or any other property. This prohibition includes but is not limited to billboards and other outdoor signs.

(b) Signs may only have the name of the business with the use of words only.

(d) No sexually oriented business may be established within one thousand five hundred feet of another similar business or within one thousand five hundred feet of a protected use.

(e) In no case may a sexually oriented business engage in the outdoor exhibition of specified anatomical areas or specified sexual activities.
§47-1B-4. Measurement of distance.

(a) For the purposes of the regulation of sexually oriented businesses distance is measured in a straight, horizontal line without regard to intervening structures.

(b) The distance between any two sexually oriented businesses and the distance between any sexually oriented business and any establishment where alcohol is served is measured from the closest exterior structural wall of each business. The distance between any sexually oriented business and any protected use, as defined, is measured from the closest exterior structural wall of the sexually oriented business and the nearest property line of the protected use.
§47-1B-5. Regulation of the exterior structure of a sexually oriented business.

The exterior structure of a sexually oriented business shall be as follows:

(a) Be painted in neutral colors and be approved as to appearance by the commissioner of labor or his or her designee; and

(b) Be properly landscaped including landscaping of all exterior areas around the building that are exposed to the public and other businesses.
§47-1B-6. Commissioner of labor is commissioner of sexually oriented business regulation; powers and duties; appointment of deputies and inspectors.

The state commissioner of labor is the commissioner of sexually oriented business regulation. The commissioner may appoint deputies and inspectors as may be required to carry out the provisions and purposes of this article within the limits of appropriation as may be made by the Legislature.

The commissioner shall:

(a) Implement and enforce the permit system provided by this article;

(b) Enforce the provisions of this article;

(c) Propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code for the enforcement of this article;

(d) Establish necessary standards for the conduct of business by the entities governed by the provisions of this article in order to promote the health, safety and economic well being of the citizens of this state;

(e) Grant exemptions from the provisions of this article or rule when authorized and appropriate;

(f) Conduct investigations on the premises of each sexually oriented business to ensure compliance with this article;

(g) Delegate to appropriate personnel any of these responsibilities for the proper administration of this article;

(h) Report annually to the Legislature the number of sexually oriented businesses, the location of each sexually oriented business and the number of employees of each sexually oriented business in existence in this state, the number of sexually oriented businesses obtaining new permits and the number of sexually oriented businesses with permits denied, revoked, suspended or cancelled during the year.

(i) Inspect sexually oriented business es at least monthly;

(j) When necessary for the enforcement of this article or rules authorized pursuant thereto, the commissioner is:

(1) Authorized to enter any commercial premises during normal business hours, without formal warrant, for the purpose of enforcement of this article;

(2) Empowered to issue stop and desist orders with respect to any sexually oriented business not in compliance with this article; and

(3) Empowered to close, seize, for use as evidence, without formal warrant, any display, item, package or commodity found to be used, retained, offered or exposed for sale or sold in violation of the provisions of this article or rules promulgated pursuant thereto.

With respect to the enforcement of this article, the commissioner is hereby vested with special police powers, and is authorized to arrest, without formal warrant, any violator of this article.
§47-1B-7. Nonconforming use.

A sexually oriented business lawfully operating as a conforming use is not rendered nonconforming by the subsequent location of a protected use within one thousand five hundred feet of the sexually oriented business.
§47-1B-8. Permit required.

A sexually oriented business may not operate without a valid sexually oriented business permit issued by the commissioner of labor.

The commissioner of labor is responsible for granting, denying, revoking, renewing, suspending and/or canceling permits for existing or proposed sexually oriented businesses. To be approved, an applicant for a permit must comply with all applicable requirements of law, including state and local building and zoning codes.

The commissioner may not issue a permit for an owner or operator of a sexually oriented business if the applicant or any person involved in the ownership or operation of the business has been convicted of a felony or any sexually oriented crime.

The state police is hereby authorized to and shall be responsible for obtaining information on the criminal records of applicants and their associates and the state police shall provide the information to the commissioner of labor within five days of a request therefore.

Permit applications must be made on a form provided by the commissioner of labor. Every applicant shall provide, under penalty of perjury for intentionally false statements, one signed and verified original, and all additional copies required by the commissioner of labor of an application which shall contain the following information and attached documentation:

(a) Whether the applicant is:

(1) An individual, the legal name, all aliases and proof that the applicant is at least twenty-one years of age; or

(2) A partnership, the complete name, all partners' legal names and aliases, proof that each partner is at least twenty-one years of age and a copy of any partnership agreement; or

(3) A corporation, its complete name, date of incorporation, legal names of all officers, directors and stockholders, proof that all officers, directors and stockholders are at least twenty-one years of age, legal name and address of its registered agent, a copy of articles of incorporation and evidence of good standing under West Virginia law;

(b) The proposed name of the sexually oriented business as well as any registration documentation;

(c) Whether the applicant or any other individual listed in the application has been convicted of a specified criminal act within either two years for misdemeanor offenses or five years for felony offenses or two or more misdemeanor offenses immediately preceding the application date and if so, the criminal act involved, date and place of conviction;

(d) Whether the applicant, a person with whom the applicant is residing, or any individual listed in the application, has had a sexually oriented business permit revoked, suspended, canceled or denied, and, if so, the name of the business, the jurisdiction and the date of revocation, suspension, cancellation or denial;

(e) Whether the applicant, the spouse of the applicant, or any individual listed in the application, holds any other sexually oriented business permits, as well as the names and locations of all such other businesses and whether the aforementioned are overdue on the payment of taxes, fees, fines or penalties assessed or imposed in relation to a sexually oriented business;

(f) The proposed location of the business, including a legal description of the property, street address and telephone numbers;

(g) The applicant's business and residential addresses and telephone numbers;

(h) The applicant's driver's license number, social security number, tax identification number and recent photograph;

(i) An architectural drawing showing the configuration and total floor space of the premises upon which the sexually oriented business will be conducted. The sketch must be professional, and must be drawn to scale and accurate to within six inches;

(j) A straight line drawing, prepared within thirty days prior to application by a registered land surveyor, depicting property lines, structures and the property lines of any existing protected use and other sexually oriented businesses within one thousand five hundred feet of the proposed sexually oriented business.

(k) A signed application, signed by:

(1) The individual applicant if the applicant is an individual.

(2) All partners if the applicant is a partnership;

(3) An authorized officer and all shareholders if the applicant is a corporation; and

(4) All persons having any ownership interest in the sexually oriented business.

Applicants are under a continuing duty to promptly update their application information and failure to do so within thirty days of the date of a change in application information is grounds for permit suspension.

If the commissioner determines that an applicant has provided incomplete or inaccurate information or improperly completed the permit application, the applicant shall be notified and allowed an additional ten days to make necessary corrections. The time period for application review shall be stayed during the period in which the applicant is allowed an opportunity to properly complete the application.

A nonrefundable application fee of ten thousand dollars shall accompany all applications. Applications will not be accepted without the required filing fee.

All applicants must be qualified according to all provisions of this article and the premises must be inspected and found to be in compliance with all applicable health, fire, state and local building and zoning codes and laws.

The possession of a liquor license or other similar types of permits does not affect the requirements of this article and holders of such licenses are not exempt from its provisions.

By making application for a sexually oriented business permit, an applicant consents to be governed by all the provisions of this article.

In addition, an applicant is required to provide the commissioner of labor with the names (including aliases) of all employees required to be licensed under this article before they may commence employment. Failure to comply with this requirement is grounds for permit suspension. No employee may work in a sexually oriented business without a valid sexually oriented business employee license issued by the commissioner of labor as provided herein.
§47-1B-9. Application investigation.

Upon receipt of a completed application and the required non- refundable application fee, the commissioner of labor (or designee) shall immediately stamp the application as received and shall immediately thereafter send photocopies of the application to any agencies responsible for the enforcement of health codes, fire codes, affected law-enforcement agencies and agencies responsible for building and zoning codes at the location of the proposed business. Each agency shall promptly investigate the application. A background investigation of the applicant shall be undertaken by the commissioner of labor or designee and no applicant who has been convicted of a felony or sexually oriented crime shall be permitted to own or operate a sexually oriented business in the state of West Virginia. All investigations shall be completed within thirty days and the results of any investigation shall be forwarded to the commissioner not later than five days thereafter.

At the conclusion of its investigation, each agency shall indicate on the photocopy of the application whether the application meets the agencies requirements for approval. A notation shall be made on the photocopy of the application with the date and the signature of the responsible agency designee and in the event of disapproval, the reasons for disapproval shall be listed in detail. Notwithstanding any other provision at law, the commissioner of labor shall disapprove any application which reveals that the proposed sexually oriented business is in violation of any provision of any statute, code, regulation or other law in effect in West Virginia. With the notations or disapproval reasons appended thereto, each affected agency shall immediately, but in no case later than thirty-five days after receipt, return the photocopy of the application to the commissioner of labor.
§47-1B-10. Permit approval procedure.

A sexually oriented business permit shall be approved or denied by the commissioner of labor within forty-five days of the receipt of a complete application. The permit, if granted, shall state on its face the name of the person or persons to whom it is granted, the name of the business, the address of the business and the permit expiration date. The permit shall be posted in a conspicuous interior location, at or near the entrance to the business so that it may be easily read by persons entering the business at any time.

A permit application shall be approved unless one or more of the following criteria is found to exist in which case it shall be denied:

(a) An applicant, partner of a partnership applicant, or officer, director or shareholder of a corporate applicant, is under twenty-one years of age;

(b) An applicant, or, if the applicant is an individual, an applicant's spouse, has outstanding taxes, fees, fines or penalties assessed or imposed in relation to sexually oriented business or child support;

(c) An applicant, if the applicant is an individual, is residing with a person to whom a permit to operate a sexually oriented business has been denied or revoked within the preceding twenty-four months;

(d) An applicant, after the notice, has failed to provide required information in the application, or has supplied false information;

(e) The premises to be used are not in compliance with applicable health and fire codes and building and zoning codes, as determined by the agencies responsible for determining compliance;

(f) The nonrefundable permit application fee has not been paid;

(g) An applicant is in violation of or not in compliance with any of the provisions of this article;

(h) The issuance of the permit would violate a statute, resolution or court order;

(i) The applicant held a sexually oriented business permit under which has been revoked;

(j) The applicant has been convicted of a criminal act as set forth in this article; or

(k) An applicant knowingly has an employee who does not have a valid sexually oriented business employee license.

No person may make application for a permit for a sexually oriented business at a particular location if that person has had an application for a sexually oriented business at the same location denied within twenty-four months of the time application is made. The permit application shall be titled in block letters across the top of the application "Permit Application For a Sexually Oriented Business."
§47-1B-11. Annual permit fee.

A sexually oriented business shall pay, in addition to the application fee, an annual renewal fee in the amount of five thousand dollars. If approved by the commissioner of labor for renewal, the sexually oriented business shall pay the renewal fee to the commissioner of labor each year on the anniversary date of issuance of the initial permit as long as the business is in existence.
§47-1B-12. Inspection.

An applicant or permit holder shall allow representatives of the commissioner of labor, state and local law-enforcement authorities, state and local health officials, the state fire marshal and local fire departments to inspect the premises of a sexually oriented business for the purpose of insuring compliance with their respective regulations at the time it is occupied or open for business.
§47-1B-13. Expiration and renewal of permit.

A sexually oriented business may not operate without a valid sexually oriented business permit. Every sexually oriented business permit shall expire one year from date of issuance and may be renewed prior to its expiration subject to the following requirements:

(a) The permit holder shall request renewal in writing to the commissioner of labor at least sixty days prior to permit expiration;

(b) The request shall be accompanied by a fee of five thousand dollars which is nonrefundable; and

(c) Renewal shall be subject to a finding by the commissioner of labor that the permit holder remains in conformance with all applicable permit requirements.

An application filed less than sixty days before a permit expires does not extend the current expiration date. If a permit is not renewed before it expires, the permit holder is not eligible for a renewal but may make a new application as provided for herein.
§47-1B-14. Suspension of permit.

A permit to operate a sexually oriented business shall be suspended by the commissioner of labor for thirty days until the violation has been corrected, if after an investigation, it is determined that a permit holder or the employee of a permit holder has:

(a) Violated or is not in compliance with any provision of this article; or

(b) Been under the influence of alcoholic beverages or controlled substance while working on the sexually oriented business premises; or

(d) Knowingly permitted gambling by any person on the premises; or

(e) Failed to correct a violation of a building, zoning, safety, fire or health code within seven days of the notification of such violation; or

(f) Transferred a permit in violation of this article; or

(g) Knowingly employed a person without a valid license as required by this article.
§47-1B-15. Revocation of permit.

A permit to operate a sexually oriented business shall be revoked by the commissioner of labor if:

(a) It is determined that the permit holder's permit has been suspended two times in one twelve-month period;

(b) The permit holder has:

(1) Given false or misleading information in material submitted with an application or renewal; or

(2) Knowingly allowed possession, use or sale of controlled substances on the permit premises; or

(3) Knowingly allowed prostitution on the premises; or

(4) Knowingly operated the sexually oriented business while under permit suspension; or

(5) Been convicted of a crime within the applicable time periods set forth herein; or

(6) Been convicted of a crime involving the payment of taxes or fees related to a sexually oriented business; or

(7) Knowingly allowed any specified sexual activities, as defined herein between patrons or between patrons and employees to occur in or on the premises or property owned by the permit holder; or

(8) Operate more than one sexually oriented business under a single roof.

A permit shall be revoked for one year. A permit holder shall not be granted any other permits for any other sexually oriented business during the effective revocation period.
§47-1B-16. Transfer of permit.

A permit holder shall not operate a sexually oriented business at any location other than the address designated in the application for permit. A permit holder shall not transfer a sexually oriented business permit unless and until the transferee satisfies the following requirements:

(a) The transferee obtains an amendment to the permit from the state inspector upon satisfactory completion of all permit application requirements;

(b) The transferee pays a transfer fee of fifty percent of the annual permit fee;

(c) The transferring permit holder has not been notified that suspension or revocation proceedings have been or are being brought against the permit holder;

(d) The permit is not transferred to another location.

Any attempt to transfer a permit in violation of these provisions is void and the permit shall be revoked by the commissioner of labor.
§47-1B-17. Sexually oriented business employee license.

Every employee of a sexually oriented business shall obtain a sexually oriented business employee license. Each employee applicant shall pay a license fee of thirty dollars to cover the reasonable cost of administering the provisions of this article. An application may not be accepted for processing without the payment of the license fee.

Each applicant shall complete a form provided by the commissioner of labor. The applicant shall provide one original completed form signed by the applicant under penalty of perjury and two copies of the signed application which shall contain, at a minimum, the following information and documentation:

(a) The applicant's name, inclusive of stage names or aliases, age, birth date and place of birth, height, weight, hair and eye color, current residence and business addresses and phone numbers, driver's license number or other identification and social security number;

(b) Proof in writing proof that the applicant is at least twenty-one years of age;

(c) A color photograph of the applicant, clearly showing the applicant's face and the applicant's fingerprints (any fees for photos and fingerprints are the responsibility of the applicant);

(d) A statement detailing the sexually oriented business license or permit history of the applicant for the previous five years, including information whether a permit for license had been denied, revoked or suspended, the applicable reasons and dates for such actions, as well as the jurisdiction in which such actions occurred;

(e) Information as to whether the applicant has been convicted of any crime, with the date, place, jurisdiction and nature of each conviction.

By making an application for a sexually oriented business employee license, an applicant consents to the provisions of this article regarding the activities of the commissioner of labor. The commissioner of labor shall send a copy of the sexually oriented business employee license application to the state or applicable county or municipal police department for an investigation of the applicants application. The applicable police department shall report its findings on the photocopy of the application, shall date the findings and shall provide the name of a contact person with the police department who did the investigation. The police department shall return its findings to the commissioner of labor within fifteen days of receipt of the application form.

A license shall be issued upon the completion of the initial application review unless the investigation of the applicant results in a finding of one or more of the following:

(a) The applicant knowingly made any false, misleading or fraudulent statement of a material fact; or

(b) The applicant is under twenty-one years of age; or

(d) The applicant has had his or her license revoked within two years of the date of the current application.

The conditional license is valid until a final license is issued or the date that the license application is denied whichever first occurs. A final license shall be issued to the applicant within sixty days of the application if the above criteria are satisfied unless it is found that the applicant has been convicted of a misdemeanor in the past two years or a felony in the past five years.

Each sexually oriented business employee license shall expire one year from date of issuance and may be renewed prior to expiration if the licensee requests the commissioner of labor to renew his or her license at least sixty days prior to expiration. The request shall be accompanied by a nonrefundable license renewal fee of thirty dollars. License renewal is not automatic, but is subject to a finding that the licensee remains in conformance with all applicable requirements of this article.

If an application is not received within the sixty days prior to expiration, the date of the expiration is not extended. An employee may not work in a sexually oriented business without a valid license as provided for in this article. An employee may not renew an expired license. An employee with an expired license may apply for a new license subject to all applicable requirements for issuance of a sexually oriented business employee license under this article.

§47-1B-18. Hearing, revocation, license denial, suspension, appeal.

If the commissioner of labor determines that probable grounds exist for denial, nonrenewal, suspension, or revocation of a sexually oriented business permit or sexually oriented business employee license, the commissioner of labor or designee shall notify the applicant, permit holder or licensee, in writing, of the intent to deny, not renew, suspend or revoke the permit or license, including the grounds therefore, by personal delivery or by certified mail.

The notification shall be directed to the applicant, permit holder or licensee at the most current business or home address of the applicant, permit holder or licensee on file with the commissioner of labor. Within ten working days of receipt of notice, the applicant, permit holder or licensee may respond in writing to the commissioner of labor including a statement of reasons why the license or permit should not be denied, not renewed, suspended, or revoked. Within ten days of the receipt of such written response, the commissioner of labor or designee shall conduct a hearing at which the applicant, permit holder or licensee shall have the opportunity to present evidence and witnesses. The commissioner of labor or designee shall notify the applicant, permit holder or licensee in writing of the hearing date within three days of the receipt of the response from the applicant, permit holder or the licensee holder. If a response is not received by the commissioner of labor in the time set forth in this article or, if after the hearing, the commissioner of labor or his or her designee finds that grounds exist for denial, nonrenewal, suspension or revocation, then the denial, nonrenewal, suspension or revocation shall become final and notice of final action shall be sent to the applicant, permit holder or licensee.

The notice shall include a statement advising the applicant permit holder or licensee of the right to appeal the decision to the circuit court of Kanawha County. If the commissioner of labor finds that grounds do not exist for denial, nonrenewal, suspension or revocation of an application, permit or license, then the notice of intent to deny, nonrenew, suspend or revoke the application, permit or license shall be withdrawn and the commissioner of labor shall notify the applicant, permit holder or licensee of that decision by personal delivery or by certified mail return receipt requested.

When a decision to deny, not renew, suspend or revoke an application, permit or license becomes final, the applicant, permit holder or licensee whose application, permit or license has been denied, not renewed, suspended or revoked the affected applicant, permit holder or licensee has the right to appeal the decision to the circuit court of Kanawha County.

Any suspension, nonrenewal or revocation of an application, permit or license for a sexually oriented business shall not take effect until a final decision is rendered in an appeal taken pursuant to this section.

Upon the filing of an appeal, the applicant, permit holder, or licensee may be granted a temporary permit or license to operate the sexually oriented business or to work as an employee of a sexually oriented business pending a final decision. The temporary permit or license is subject to all provisions of this article for permits and licenses.
§47-1B-19. Regulation of sexually explicit films and videos:

Any person operating or causing to be operated a sexually oriented business other than a sexually oriented hotel or motel and regardless of whether or not a sexually oriented business permit has been issued to the business which exhibits on the premises in a viewing room computer software, compact discs, film, video cassette or other video reproduction which depicts specified sexual activities or specified anatomical areas shall comply with the following requirements:

(a) When applying for a sexually oriented business permit, the applicant shall be accompany the application with an architectural design of the entire premises to include a plan thereof, specifying the location of the employee stations, if any, the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted; and

(b) Each design shall be oriented to north and the nearest street or streets and be drawn to scale with marked dimensions sufficient to show the internal features of all areas of the premises to an accuracy of six inches.

The commissioner of labor may waive the foregoing design during permit renewal if the applicant certifies that the configuration of the premises has not been altered since the previous design was prepared.

No alteration in the configuration of the premises as set forth in the architectural design of the premises may be made prior to the approval of the commissioner of labor. It is the duty of the owners and operators of the premises to insure that employees are on duty and situated that all patrons present inside the premises are subject to observation by an employee.

The interior of the premises shall be configured so that every area of the premises to which any patron is permitted access for any purpose (including the interior of individual viewing booths excluding restrooms) is subject to an unobstructed view by the owner or employees on duty. Restrooms shall not be equipped with video display equipment. It is the duty of the owners, operators and employees present on the premises to insure that the aforementioned unobstructed view remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to insure that no patron is permitted access to any area designated for no access by patrons in the application or on record.

No viewing room may be occupied by more than one person at any given time. No peep holes, viewing holes or other holes which are or may be used by occupants of a viewing room for sexual gratification may be permitted in the walls, floors, ceilings or partitions separating each viewing room from an adjoining viewing room or restroom. Viewing rooms shall not be enclosed by doors, curtains or a maze of wall structures. No signs, lights or other communicative devices shall be employed to create an expectation of privacy on the part of any patron at any location of the premises.

The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination level of not less than two foot candles as measured at floor level. The level of illumination shall be maintained at all times any patron is present on the premises.

§47-1B-20. Regulations of video stores.

Video stores which market videos toward children and families, may not rent or sell pornographic videos. Only those sexually oriented business that are licensed are permitted to sell or rent pornographic adult movies, unless the video store obtains a sexually oriented business license, in which case, the owner of the video store shall comply with the procedures set forth below for the public display of visual materials with pornographic adult content.

Any person failing to comply with the provisions of this section shall have his or her business license suspended and shall be fined two hundred dollars each and every day the video store is not in compliance.

§47-1B-21. Public display of visual materials with pornographic or adult content.

Any business displaying pornographic material or material with adult content shall keep the material behind a counter at which a store attendant is usually present and clearly marked with a sign prohibiting perusal by minors. The materials shall be covered by a device, commonly known as a "blinder rack," so that the lower two thirds of the cover of the material is not exposed to view and is displayed or distributed after taking reasonable steps to receive, obtain, check, or process a credit card, credit card number, adult identification code or number, adult subscription, verifiable parental or custodial permission, or other technically or reasonably feasible means of verification of age or martial status of the purchaser as may be necessary to ensure that minors are not allowed to purchase pornographic material or material with adult content.

Any business failing to comply with the provisions of this section shall be fined two hundred dollars each and every day the business is out of compliance. The fine shall be levied and collected by the commissioner of labor and placed in the special fund hereinafter established.

§47-1B-22. Regulation of adult cabarets, gentleman's clubs, strip clubs.

An adult cabaret performer may not perform on a stage that is less than eighteen inches in height and at least ten feet from all patrons. An adult cabaret performer may not have physical contact, including direct receipt of tips or gratuities from patrons.

A performer in a sexually oriented business may not be totally nude while dancing or during a performance, only semi-nude performers are allowed to perform in cabarets, gentleman's clubs, strip clubs and any other sexually oriented business where there are performers.
§47-1B-23. Advertising and lighting regulations.

A sexually oriented business may not advertise the presentation of any activity prohibited by state or local law, including the prohibitions set forth in this article, or display or exhibit any materials or performances in advertising visible outside the premises except to advertise the existence or location of a sexually oriented business, or allow any portion of the interior premises to be viewed from outside the establishment or
fail to illuminate all entries and off-street parking areas of the premises from dusk until closing with a lighting system which provides an average maintained horizontal illumination of one foot candle on the parking surface and walkways.

The level of illumination is established in order to provide sufficient lighting for the personal safety of patrons and employees to reduce potential vandalism and criminal conduct. The application for a permit shall include a detailed explanation of the lighting to be installed to meet this requirement.
§47-1B-24. Minors prohibited.

No person less than twenty-one years of age may be admitted, remain, or purchase goods at a sexually oriented business and no person less than twenty-one years of age may be employed at a sexually oriented business.
§47-1B-25. Violations; penalties.

It is unlawful for a sexually oriented business to operate without a currently valid sexually oriented business permit or to operate the business in violation of the terms of its permit or to operate the business when the business has had its permit suspended or revoked or the business's permit has expired and it is unlawful for a sexually oriented business to bar any legally authorized inspector from inspecting a sexually oriented business as provided in this article.

It is also unlawful for any person having a duty to regulate sexually explicit films or videos, to knowingly fail or refuse to do so.

Any person violating the forgoing provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty dollars nor more than five hundred dollars, or confined in the county or regional jail not more than one year, or both fined and imprisoned. Any person violating the forgoing provisions of this section a second or subsequent time is guilty of a felony and, upon conviction thereof, shall be fined not more than one thousand dollars, or imprisoned in a state correctional facility not less than one year, or both fined and imprisoned.

Any person operating or causing to be operated a sexually oriented business in violation of the advertising and lighting provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty dollars nor more than five hundred dollars, or confined in the county or regional jail not more than one year, or both fined and imprisoned.

Any person operating or causing to be operated a sexually oriented business in violation of the provisions regarding minors having access to the business provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty dollars nor more than five hundred dollars, or confined in the county or regional jail not more than one year, or both fined and imprisoned.

Any person operating or causing to be operated a sexually oriented business in violation of the application and documentation provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty dollars nor more than five hundred dollars, or confined in the county or regional jail not more than one year, or both fined and imprisoned.

Nothing contained herein shall prevent or restrict the state, or its affected political subdivisions from taking such other lawful action in any court of competent jurisdiction as is necessary to prevent or remedy any violation or noncompliance.
§47-1B-26. Exemptions.

It is a defense to prosecution for an alleged violation of the sexually oriented business provisions of the this article that:

(a) A person appearing in a state of nudity did so in a modeling class operated:

(1) By a college, junior college or university supported, in
whole or in part, by taxation; or

(2) By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college or university supported entirely or partly by taxation; and

(3) In a structure which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and

(4) Where in order to participate in a class, a student must enroll at least three days in advance of the class; and

(5) Where no more than one nude model is on the premises at any one time.

It is also a defense to prosecution for an alleged violation of the sexually oriented business provisions of this article that a person appearing in a state of nudity did so in a theatrical production other than a production of a sexually oriented business.

It is also a defense to prosecution for an alleged violation of the sexually oriented business provisions of this article for an employee of a sexually oriented business to expose any specified anatomical area during the use of a restroom or dressing room accessible only to employees.
§47-1B-27. Immunity from prosecution.

Any officer, agent or employee involved in the enforcement of the provisions of this article is immune from prosecution and civil liability for reasonable and good faith activities required to carry out his or her responsibilities under the provisions of this article.

§47-1B-28. Renting, leasing or owning property for a sexually oriented business.

A sexually oriented business housed on rental property on the effective date of this article shall be required to fully comply with all of the provisions of this article within six months of the effective date.

A sexually oriented business housed on property owned by the business owner on the effective date of this article shall be required to fully comply with all of the provisions of this article within one year of the effective date.
§47-1B-29. Compliance with distance requirements.

A business owner relocating a sexually oriented business that violates the distance requirements when this article takes effect may continue to operate for a period of three years. During the transition period, the relocating business owner shall be exempt from the payment of business and occupation taxes.
§47-1B-30. Businesses required to alter premises.
A sexually oriented business required to alter the interior or exterior of their businesses in order to comply with the provisions of this article are exempt from the provisions of this article regarding the structure, lighting and landscaping provisions of this article for one year from the effective date of this article.
§47-1B-31. Business owners under contract with vendors.

A sexually oriented business with contracts for signs or real estate rental or leases or which have rental or lease contracts for business machines or other machines prior to the effective date of this article may execute and perform the contracts provided that any sign and any business shall be brought into compliance with the provisions of this article within two years of the effective date of this article. Thereafter, the sexually oriented business owner may not executed a contract for purchase, sale, or lease of signs or business machines, other machines or real estate that does not comply with this article.
§47-1B-32. Extensions of time.

The commissioner of labor may not grant an extension of, set aside or amend, any time line set forth in this article.
§47-1B-33. Additional penalties for certain criminal acts.

(a) An owner, employee or agent of a sexually oriented business found to encourage, support or be a participant in any act of prostitution is guilty of a felony and, upon conviction thereof, in addition to any other penalty therefore, shall be imprisoned in a state correctional facility not less than ten nor more than twenty years.

(b) An owner, employee or agent of a sexually oriented business found to be in possession of child pornography or allowing a sexual performance by a child or solicitation of a child or harboring a child with the intent to seduce or exploit the child or who performs any type of sexual acts on a child, or allows any other person to do so on the premises of the business is guilty of a felony and, upon conviction thereof, in addition to any other penalty provided for that act, shall be fined one hundred thousand dollars and imprisoned in a state correctional facility not less than fifteen nor more than twenty years. Any person convicted under the provisions of subsection (b) of this section is not eligible to obtain a license or permit as provided for in this article.

(c) Any owner, employee or agent of a sexually oriented business, selling or distributing pornography or adult oriented material to a minor is guilty of a misdemeanor and, upon conviction thereof, shall in addition to any other penalty for that act, shall be fined ten thousand dollars and imprisoned in the county or regional jail for not more than one year.

(d) Any owner, employee or agent of a sexually oriented business engaging in lewdness or indecent exposure on the premises of a sexually oriented business, is guilty of a misdemeanor and, upon conviction thereof, shall in addition to any other penalty therefore, be fined one thousand five hundred dollars and sentenced to not less than twenty-five hours of community service to be completed within six months of the conviction.
§47-1B-34. Regulation of hours of operation.
A sexually oriented business may be open to customers only between the hours of ten a.m. and ten p.m. Monday through Saturday. A sexually oriented business may not be open at any time on Sunday or any legal holiday.
§47-1B-35. Screening of internet services required.

Every computer or other device paid for by public funds (regardless of the source) which allows access to the internet or the world wide web shall have one of the following internet screening provisions in place in order to ensure that minors are not permitted to view pornography using that computer or other devise:

(a) Internet screening software which provides comprehensive and complete screening of visual pornographic images and language so that they may not be accessed through the computer or devise; or

(b) Internet screening services provided by an internet service provider (ISP) which provides comprehensive and complete screening of visual pornographic images and language so that they may not be accessed through the computer or devise.

The commissioner of labor shall ensure that all agencies of state and local government and every entity receiving state and local funding for computer services are in compliance with this section.
§47-1B-36. Special fund created.

All moneys collected by the commissioner of labor as a result of the permit and licensing process set forth in this article shall be deposited in a special account in the state treasury to be known as the "sexually oriented business regulation account." Expenditures from the fund shall be for the purpose set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter five-a of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand three, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature.

NOTE: The purpose of this bill is to provide for the reasonable regulation of pornography and sexually oriented businesses.

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