H. B. 2805
(By Delegates Cowles, Overington, Tabb,
J. Miller, Lawrence, Blair and Duke)
[Introduced February 25, 2009; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact §7-1-3jj of the Code of West Virginia,
1931, as amended, relating to the regulation of the locations
of businesses offering exotic entertainment.
Be it enacted by the Legislature of West Virginia:
That §7-1-3jj of the Code of West Virginia, 1931, 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.
(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" as that term is defined in subsection (a) of this
section.
Any such The ordinance
shall be is subject to the
provisions of section
fifty ten, article
twenty-four seven, chapter
eight eight-a 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 applies to or
affects 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 article twelve,
chapter eight
or chapter eight-a 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.
NOTE: The purpose of this bill is to change the county
commission's authority to regulate through an ordinance the
locations of businesses of exotic entertainment from section fifty,
article twenty-four of chapter eight to section ten, article seven
of chapter eight. The bill also eliminates the authority of
article twenty-four of chapter eight of the code and replaces it
with chapter eight-a. These changes are necessitated by the earlier
repeal of article twenty-four of chapter eight.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.