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Introduced Version - Originating in Committee Senate Bill 273 History

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Senate Bill No. 273

(By Senators Kessler, Oliverio, Chafin, Foster, Green, Hunter, Jenkins, Minard, Stollings, Wells, Barnes, Deem, Hall, McKenzie and Yoder)

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[Originating in the Committee on the Judiciary;

reported January 18, 2008.]

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A BILL to amend and reenact §7-1-3jj of the Code of West Virginia, 1931, as amended; and to amend and reenact §8-12-5c of said code, all relating to removing references to repealed statutes and replacing with current statutory references.

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; and that §8-12-5c of said code be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

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 two, chapter eight eight-a 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 ordinance shall be 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 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 article twelve or twenty-four, chapter eight of this code or article two, 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.
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-jj, article one, chapter seven of this code.
(b) In the event a municipality has not created or designated a planning commission in accordance with the provisions of article twenty-four two, chapter eight-a of this chapter 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. Any such ordinance shall be subject to the provisions of section fifty ten, article twenty-four seven, this 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 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.
(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.

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(NOTE: The purpose of this bill is to delete statutory references to article twenty-four, chapter eight of this code, which was repealed in 2004 and recodified in current chapter eight- a of this code, and substitute the repealed statutes with references to the appropriate statutes in the recodification.

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