BEFORE
THE COUNTY COMMISSION OF
BERKELEY COUNTY, WEST VIRGINIA
IN RE: LOCATION OF EXOTIC
ENTERTAINMENT
(Originally adopted August 26, 2004; Amended November 18, 2004)
Pursuant to § 7-1-3jj, Code of West Virginia of
1931, as amended, the Berkeley County Commission ORDERS that it is
appropriate and necessary, because of the rapid growth of this county
and the potential for various deleterious effects of establishments
offering exotic entertainment in close proximity to schools, churches
and residential neighborhoods, to regulate the location of businesses
offering exotic entertainment.
The Berkeley County Commission finds it appropriate
to minimize and control adverse and deleterious effects of adult
entertainment establishments and thereby protect the health, safety and
welfare of the community and its citizens and to preserve and enhance
the property values upon which this county’s tax revenues are
dependent.
It is not the intent of this ordinance to suppress
any protected speech but, rather, to address the location of businesses
offering exotic entertainment within Berkeley County.
SECTION I:
DEFINITIONS
Adult Arcade:
any place to which the public is permitted or invited wherein any
form of consideration is necessary to view electronically, electrically,
digitally or mechanically, images, however produced and/or presented,
which images are displayed and distinguished or characterized as exotic
entertainment, and which images are intended to be viewed by five or
fewer persons at any one time.
Adult Bookstore: adult novelty or adult
video store – a commercial establishment which, as one of its
principal purposes, offers for sale or rental for any form of
consideration, any one or more of the following, (a) books, magazines,
periodicals, or other printed matter or photographs, films, motion
pictures, video cassettes or video reproductions, slides or other visual
representations which are characterized as exotic entertainment or (b)
instruments, devices, or paraphernalia which are designed for use in
connection with exotic entertainment. A commercial establishment may have other principal business
purposes that do not involve the offering for sale or rental of material
depicting or describing exotic entertainment and still be categorized as
an adult book store, adult novelty store, or adult video store.
Such other business purposes will not serve to exempt such
commercial establishments from being categorized as an adult bookstore,
adult novelty store or adult video store so long as one of its principal
business purposes is the offering for sale or rental for consideration
the specified materials which are characterized as exotic entertainment.
Adult Cabaret:
a nightclub, bar, restaurant, or similar commercial establishment
which regularly features (a) persons who appear in a state of nudity or
semi-nudity; (b) live performances which are characterized
as exotic entertainment; (c) films, motion pictures, video
cassettes, slides or other photographic reproductions which are
characterized as exotic entertainment.
Adult Motion Picture Theater:
a commercial establishment where, for any form of consideration,
films, motion pictures, video cassettes, slides or similar photographic
reproductions are regularly shown which are characterized as exotic
entertainment.
Adult Theater:
a theater, concert hall, auditorium, or similar commercial
establishment which regularly features persons who appear in a state of
nudity or semi-nudity or live performances which are characterized as
exotic entertainment.
Employee:
a person who performs any service on the premises of an exotic
entertainment business on a full time, part-time, or contract basis,
whether or not the person is denominated as an employee, independent
contractor, agent or otherwise and whether or not said person is paid a
salary, wage or other compensation by the operator of said business.
Employee does not include a person exclusively on the premises
for repair or maintenance of the premises or equipment on the premises,
or for the delivery of goods to the premises.
Establishment:
includes (a) the opening or commencement of any exotic
entertainment business as a new business; (b) the conversion of an
existing business, whether or not originally an exotic entertainment
business, to any exotic entertainment business; (c) the additions of any
exotic entertainment business to any other existing exotic entertainment
business; or (d) the relocation of any exotic entertainment business.
Exotic Entertainment: live entertainment, dancing or other services conducted by persons
while nude or semi-nude in a commercial setting or for profit.
Semi-nude means the appearance of the (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, shirt, leotard, bathing suit or other
wearing apparel provided that the areola is not exposed, in whole or in
part; (b) a human fully bare buttock, anus, anal cleft or cleavage,
pubic area, male genitals,
female genitals or vulva, with less than a fully opaque covering; (c) a
human male genital in a discernibly turgid state even if completely and
opaquely covered.
Person:
an individual, proprietorship, partnership, corporation,
association, or other legal entity.
Residential Area:
two or more structures utilized as primary residences existing
within 500 feet of each other.
Substantial Enlargement: the increase in floor areas occupied by the business by more
than fifteen percent (15%) as the floor areas exist on the date this
ordinance takes effect.
Transfer of Ownership or Control:
(a) the sale, lease or sub-lease of the exotic entertainment
business; (b) the transfer of securities which constitute a controlling
interest in the exotic entertainment business, whether by sale, exchange
or similar means; (c) the establishment of a trust, gift or other
similar legal device which transfers the ownership or control of the
exotic entertainment business, except for transfer by bequest or other
operation of law upon the death of the person possessing the ownership
or control.
SECTION II.
CLASSIFICATION
Exotic entertainment businesses are classified as
follows:
1) adult
arcades;
2) adult
bookstores, adult novelty stores or adult video stores;
3) adult
motion pictures theaters;
4) adult
cabarets; and
5) adult
theaters.
SECTION III.
LOCATION OF EXOTIC ENTERTAINMENT BUSINESSES
This statute prohibits any person, entity or
business from establishing, operating, or causing to be operated, an
exotic entertainment business within 2,000 feet of:
1) a
church, synagogue, mosque, temple or building which is used primarily
for religious worship and related religious activities;
2) a
public or private education facility including, but not limited to,
child day care facilities, nursery schools, preschools, kindergartens,
elementary schools, private schools, intermediate schools, junior high
schools, middle schools, high schools, vocational schools, secondary
schools, continuation schools, special education schools,
colleges and universities. The
term schools includes the school grounds but does not include facilities
used primarily for another purpose and only incidentally as a school;
3) a
public park or recreational area which has been designated for park or
recreational activities including, but not limited to, public parks,
playgrounds, natural trails, swimming pools, reservoirs, athletic
fields, basketball or tennis courts, public wilderness areas or other
similar public lands, all of which are considered public parks or public
recreational areas;
4) hotel,
motel, campground, bed and breakfast.
5) the
nearest property line of any primarily residential area.
This ordinance also prohibits the causing or
permitting of the operation, establishment, or substantial enlargement
or transfer of ownership or control of an exotic entertainment business
within 2,000 feet of another exotic entertainment business.
This ordinance also prohibits the causing or
permitting of the operation, establishment or maintenance of more than
one exotic entertainment business, in the same building, structure or
portion thereof or the increase of floor area of any exotic
entertainment business in any building, structure or portion thereof
containing an already existing exotic entertainment business.
For the purpose of this section, measurement shall
be made in a straight line, without regard to the intervening structures
or objects, from the nearest portion of the building or structure used
as the part of the premises where an exotic entertainment business is
conducted, to the nearest property line of the premises of a use listed
in Section III. Presence of
a city, county or other political subdivision boundary shall be
irrelevant for purposes of calculating and applying the distance
requirements of this section.
For purposes of this section, the distance between
any two exotic entertainment businesses shall be measured in a straight
line, without regard to the intervening structures or objects or
political boundaries, from the closest exterior wall of the structure in
which each business is located.
An exotic entertainment business lawfully operating
as a conforming use is not rendered a non-conforming use by the
location, subsequent to the establishment of such exotic entertainment
business, of a use listed in this section within 2,000 feet of the
exotic entertainment business.
In the event of the partial or total loss of any
existing exotic entertainment business 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 this ordinance.
Any such repair or replacement will be limited to restoring or
replacing the damaged or lost structure with a building not more than
fifteen percent (15%) larger than the previous structure, as measured in
square footage; and any substantial enlargement of the business
structure will subject the structure to this ordinance.
In the event of a complete transfer of ownership or
control of any exotic entertainment business,
the building or structure in which such business is housed shall
become subject to the provisions of this Ordinance without the
protections of any grandfather or similar clause.
In the event of a revocation of the business or
liquor license of an exotic entertainment business the building or
structure in which the business is housed shall become subject to the
provisions of this ordinance.
This ordinance shall not 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 the West Virginia Code;
or (2) adopts an ordinance to exempt itself from this ordinance.
SECTION V.
SEVERABILITY
If any provision of this ordinance should be held,
invalid or void, all remaining provisions shall continue to have full
force and effect.
ADOPTED THE 26th day of August, 2004.
Amended by vote of the Commission on Thursday, November 18, 2004.
Ordinance with amendments effective November 18, 2004.
The County Commission of Berkeley County
____________________________________
Steven C. Teufel, President
____________________________________
Howard L. Strauss, Commissioner
____________________________________
John E. Wright, Commissioner
