sb104 SUB1 eng

ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 104
(By Senators Hunter, Bowman, Ross, Minear and Helmick)
____________
[Originating in the Committee on the Judiciary;
reported January 16, 2002.]
____________

A BILL to amend article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section three-ii; and to amend article twelve, chapter eight of said code by adding thereto a new section, designated section five-c, all relating to authorizing counties and municipalities to enact ordinances restricting the location of businesses offering exotic entertainment; defining terms; describing circumstances under which a county ordinance does not apply to a municipality; and permitting direct judicial review.

Be it enacted by the Legislature of West Virginia:

That article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section three-ii; and that article twelve, chapter eight of said code be amended by adding thereto a new section, designated section five-c, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.

§7-1-3ii. Authority of counties to enact ordinances restricting the location of businesses offering exotic entertainment.

(a) For the purposes of this section:

(1) "Exotic entertainment" means live entertainment, dancing or other services conducted by persons while nude or seminude in a commercial setting or for profit.

(2) "Seminude" 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

(b) Notwithstanding the failure of a county to create a planning commission pursuant to the provisions of article twenty- four, chapter eight of this code, a county commission may, by order entered of record, adopt an ordinance that limits the areas of the county in which a business may offer "exotic entertainment" as that term is defined in subsection (a) of this section: Provided, That the provisions of section fifty, article twenty-four, chapter eight of this code shall apply to any ordinance enacted pursuant to the provisions of this section. Notwithstanding any other provision of this code to the contrary, no ordinance enacted pursuant to the provisions of this section may apply to or affect any municipal corporation that either: (1) Has adopted and has in effect an ordinance restricting of the location of exotic entertainment or substantially similar businesses pursuant to the authority granted in article twenty-four, chapter eight of this code; or (2) notifies the county commission within sixty days of the enactment of the ordinance that the municipality is exempt from provisions of such ordinance.

(c) Any person adversely affected by an ordinance enacted pursuant to the authority granted in subsection (b) of this section is entitled to seek direct judicial review with regard to whether the ordinance impermissibly burdens his or her right to establish a business offering exotic entertainment.

CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST MUNICIPALITIES.

§8-12-5c. Authority to enact ordinance restricting the location of businesses offering exotic entertainment.

(a) For the purposes of this section, the term "exotic entertainment" has the same meaning ascribed to it in section three-ii, article one, chapter seven of this code.

(b) Notwithstanding the failure of a municipality to create or designate a planning commission in accordance with the provisions of article twenty-four, chapter eight of this code, every municipality and the governing body of the municipality may, in addition to all other powers of municipalities, adopt an ordinance that limits the areas of the municipality in which businesses may offer exotic entertainment: Provided, That the provisions of section fifty, article twenty-four of this chapter shall apply to any ordinance enacted pursuant to the provisions of this section.