
Senate Bill No. 482
(By Senators Hunter, McCabe, rowe, Snyde;r, bowman, Minear,
Sprouse, White, Unger, Harrison, Love, Weeks and Prezioso)
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[Introduced February 11, 2003; referred to the Committee on the
Judiciary.]










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A BILL to amend and reenact section three-jj, article one, chapter
seven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to defining "adult-oriented
establishment" relative to counties' authority to enact
ordinances restricting location of exotic entertainment
establishments; and authorizing counties to restrict the
location of an "adult-oriented establishment".
Be it enacted by the Legislature of West Virginia:
That section three-jj, article one, chapter seven of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3jj. 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

(C) A human male genital in a discernibly turgid state even if
completely and opaquely covered.

(3) "Adult-oriented establishment" means any commercial
establishment, business or service, or portion thereof, which
offers, as its principal or predominant stock or trade,
sexually-oriented material, devices, or paraphernalia, or any
combination or form thereof, whether printed, filmed, recorded or
live and which restricts or purports to restrict admission to
adults or to any class of adults.

(b) In the event a county has not created or designated 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" or "adult-oriented establishment" as that term is
those terms are defined in subsection (a) of this section. Any
such ordinance shall be subject to the provisions of section fifty,
article twenty-four, chapter eight of this code: Provided, That in
the event of the partial or total loss of any existing business
structure due to fire, flood, accident or any other unforeseen act,
that business structure may be repaired or replaced and the
business use of that structure may continue notwithstanding the
existence of any ordinance authorized by this section. Any such
repair or replacement will be limited to restoring or replacing the
damaged or lost structure with one reasonably similar, or smaller,
in size as measured in square footage, and any enlargement of the
business structure will subject the structure to any existing
ordinance authorized by 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 the location of exotic
entertainment or substantially similar businesses pursuant to the authority granted in articles twelve or twenty-four, chapter eight
of this code; or (2) adopts an ordinance to exempt itself from any
county ordinance enacted pursuant to this section.

(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 or an adult-oriented
establishment.

(d) If any part of this section is declared invalid or
unconstitutional by a court of competent jurisdiction, the decision
shall not affect the validity of the remaining provisions of this
section.

NOTE: The purpose of this bill is to
define "adult-oriented
establishment" relative to counties' authority to enact ordinances
restricting location of exotic entertainment establishments while
authorizing counties to restrict the location of an "adult-oriented
establishment."

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.