Senate Bill No. 1010
(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)
[Passed June 2, 2009; in effect from passage.]
AN ACT to amend and reenact §7-1-3jj of the Code of West Virginia,
1931, as amended, relating to ordinances; and providing
certain county commissions with authority to regulate the
location 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
(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) 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".
However, an ordinance
enacted pursuant to this section may not affect a business offering
exotic entertainment prior to the effective date of the ordinance.
(c) The ordinance is subject to the provisions of section ten,
article seven, chapter 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 repair
or replacement is 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 subjects the structure to any existing ordinance
authorized by this section.
(d) Notwithstanding any other provision of this code to the
contrary, no ordinance enacted pursuant to the provisions of this
section 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 article twelve,
chapter eight of this code, or chapter eight-a of this code; or (2)
adopts an ordinance to exempt itself from any county ordinance
enacted pursuant to this section.
(e) 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.