(a) Definitions.
(1) “Adult” shall mean an individual person who is twenty-one years of age or older.
(2) Adult amusement or exotic entertainment” shall mean amusement or entertainment which is distinguished or characterized by an emphasis on acts or material depicting describing, or relating to sexual conduct or specified anatomical areas, as defined herein, including, but not limited to topless or bottomless dancers, exotic dancers, strippers, male or female impersonators, or similar entertainment. Adult amusement or exotic entertainment shall include the following:
A. Adult mini motion picture theater. An enclosed building with a capacity of less than fifty persons used for presenting material distinguished or characterized by an emphasis on depicting or describing sexual conduct or specified anatomical areas.
B. Adult motel. A hotel, motel, or similar establishment that offers accommodations to the public for any form of consideration and provides patrons with closed circuit television transmissions, films motion pictures, video cassettes, slides, or other photographic reproductions that are characterized by the depiction or description of sexual conduct or specified anatomical areas; and has a sign visible from the public right-of-way that advertises the availability of this adult type of photographic reproductions.
C. Adult motion picture arcade. A place to which the public is permitted or invited wherein coin or slug-operated or electronically, electrically, electrically, or mechanically controlled, still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by an emphasis on depicting or describing sexual conduct or specified anatomical areas.
D. Adult motion picture theater. An enclosed building with a capacity of fifty or more persons used for presenting materials distinguished or characterized by an emphasis on depicting or describing sexual conduct or specified anatomical areas.
E. Massage parlor. A place where, for any form of consideration or gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic treatments, or any other treatment or manipulation of the human body occurs as part of, or in connection with, sexual conduct or where any person providing such treatment, manipulation, or service related thereto exposes specific anatomical areas.
F. Model studio. A place, other than university or college are classes, where, for any form of consideration or gratuity, figure models who display specific anatomical areas are provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by persons paying such consideration or gratuity.
G. Sexual encounter center. Any building or structure which contains, or is used for, commercial entertainment where the patron, directly or indirectly, is charged a fee to engage in personal contact with, or to allow personal contact by, employees, devices or equipment, or by personnel provide by the establishment which appeals to the prurient interest of the patron, to include, but not be limited to, bath houses, massage parlors, and related or similar activities.
(3) “Adult bookstore” shall mean an establishment wherein ten percent or more of its total display consists of books, films, videos, magazines, periodicals, games, novelties, or other materials that are distinguished or characterized by an emphasis on depicting or describing sexual conduct.
Display area as used herein shall be measured as follows:
A. For bookshelves, magazine racks, and similar display devices, display area shall be calculated by multiplying the length times the width or height, whichever is greater, of such devices. If sexually- oriented materials are mixed with non-sexually-oriented materials in or on such devices, the entire device shall be considered as consisting of sexually-oriented materials.
B. For table tops, counters, display cases, and similar display devices, display area shall be calculated by multiplying the length times the width of each surface on which merchandise is displayed. If sexually-oriented materials are mixed with non-sexually-oriented materials on such surfaces, the entire surface shall be considered as consisting of sexually-oriented materials.
C. For walls, display area shall be the area of the wall enclosed by the smallest imaginary rectangle which contains each item.
D. The display area of merchandise, hanging or suspended from the ceiling, shall be calculated by multiplying the item’s length or width, whichever is longer, times the item’s height.
(4) “Individual” means any human being regardless of age.
(5) “Knowingly” means to have knowledge of or to be aware of the content or character of obscene matter.
(6) “Matter” means any book, magazine, newspaper or other printed or written material, or any picture, drawing or photograph, motion picture, or other visual representation or mechanical, chemical or electric production or any other articles, equipment, machines, or materials.
(7) “Obscene” means matter which the average individual applying contemporary community standards would find (i) taken as a whole, appeals to the prurient interest; (ii) depicts or describes in a patently offensive way ultimate sexual acts, normal or perverted, actual or simulated; and (iii) the matter, taken as a whole, lack serious literary, artistic, political or scientific value; and which either:
A. Depicts or describes patently offensive representation of masturbation, excretory functions, lewd exhibition of the genitals, sodomy, fellatio, cunnilingus, bestiality, sadism, masochism; or
B. Depicts or describes nudity or sexual acts of persons, male or female, below the age of eighteen years.
(8) “Person” means any individual, firm, association, corporation or other legal entity.
(9) “Prepare” means to produce, manufacture, publish or print.
(10) “Public display” means the placing of material on or in a billboard, viewing screen, theatre, marquee, newsstand, display rack, window, showcase, display case or similar public place so that material can be purchased or viewed by individuals.
(11) “Territorial limits” shall mean those portions of land or area within the corporate boundaries of the City of New Martinsville.
(6-26-06.)
(b) Injunctive Relief. the circuit court shall have jurisdiction to issue an injunction to enforce the purposes of this article upon petition by the city attorney or a representative thereof or any citizen of the cit who can show a good faith and valid reason for making such application. No bond shall be required unless for good cause shown.
(6-26-06.)
(c) Activities Prohibited. Any person who knowingly sends or causes to be sent or causes to be brought into the City of New Martinsville for sale or public display, or prepares, sells or makes a public display, or has in his possession with the intent to sell or make a public display of any obscene matter to any individual, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than five hundred dollars. A person convicted of a second or subsequent offense under this article is guilty of a misdemeanor, and upon conviction thereof, shall be fiend not more than one thousand dollars.
In the territorial limits, no public entrance to an adult amusement or exotic entertainment establishment or adult bookstore shall be located within one thousand feet of any property on which is situated any of the following:
(1) A public or private child daycare facility, kindergarten, elementary, grade, middle, junior, senior, secondary or vocational school; or
(2) A public or private institution of higher education; or
(3) A public or private business school or college; or
(4) A public or recreational facility; including but not limited to a park, playground, nature trail, swimming pool, athletic field, basketball court, tennis court, wilderness area or other similar public land within the territorial limits or otherwise; or
(5) A public library; or
(6) A church, mosque, temple or synagogue or other building used as a place of religious worship or instruction; or
(7) A federal, state, county, municipal office building; or
(8) Another exotic entertainment establishment; or
(9) An establishment that is licensed to serve alcoholic beverages; or
(10) A residence.
The one thousand feet shall be measured in a straight line from the nearest point of the all of the portion of the building in which a sexually-oriented business is conducted, to the nearest boundary line of any of the properties set forth hereinabove.
If any section, subsection, or clause of this article shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections, and clauses shall not be affected thereby.
(6-26-06.)
(d) Severability and Repealer.
(1) Nothing in this article is intended to make legal any business or activity that is expressly declared illegal under the provisions of this Code or under any state or federal laws.
(2) If any provision or portion of a provision of this article is held to be unconstitutional, preempted by federal or state law, or otherwise invalid by any court of competent jurisdiction, the remaining provisions of this article shall not be invalidated.
(3) All ordinances or parts of ordinances that are inconsistent with any provisions of this article are hereby repealed as to the extent of such inconsistencies.
(6-26-06.)
(6-26-06.)
CODIFIED ORDINANCES OF NEW MARTINSVILLE