1329.02  DEFINITIONS.
   As used in this article, words and terms below shall have the meanings respectively ascribed to them, unless the context specifically indicates otherwise:
   (a)   Private Club. A private club means any place of business offering for sale to the public alcoholic beverages as provided for in West Virginia Code Article 60-7-2.
   (b)   Bar.  Bar means a place of business that has a Class "A" nonintoxicating beer license issued by the Alcohol Beverage Control Commission under West Virginia Code 11-16-1 et seq. allowing the holder to sell nonintoxicating beer for consumption on the premises and derives at least forty percent (40%) of its annual gross receipts at that location from sales of nonintoxicating beer for consumption on the premises or is eligible for a West Virginia video lottery license under the provisions of 179 CSR Series 5.
   (c)   Liquor Store.  Liquor store means any place of business offering for sale to the public intoxicating liquors, as provided for in West Virginia Code Article 60-3A.
   (d)   Gambling Establishment.  Gambling establishment means any place of business where legal form of gambling or game of chance is permitted or played.
   (e)   Special Use Business.  Special use business means a private club, bar, liquor store, gambling establishment, or sexually oriented business.
   (f)   Adult Arcade.  Adult arcade means any place to which the public is permitted or invited wherein coin-operated, slug-operated, or for any form of consideration, or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, video or laser disc players, 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 the depicting or describing of "specified sexual activities" or "specified anatomical areas".
   (g)   Adult Bookstore, Adult Novelty Store, or Adult Video Store. Adult bookstore, adult novelty store or adult video store means 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:
      (1)   Books, magazines, periodicals or other printed matter, or photographs, films, motion picture, video cassettes or video reproductions, slides, or other visual representations which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas"; or
      (2)   Instruments, devices, or paraphernalia, which are designated for use in connection with "specified sexual activities."
A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing "specified sexual activities" or "specified anatomical areas" and still be categorized as ADULT BOOKSTORE, 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 by the depiction or description of "specified sexual activities" or"specified anatomical areas."
   (h)   Adult Cabaret.  Adult cabaret means a nightclub, bar, restaurant, or similar commercial establishment which regularly features:
      (1)   Persons who appear in a state of nudity or semi-nude; or
      (2)   Live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or
      (3)   Films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas".
   (i)   Adult Motion Picture Theater.  Adult motion picture theater means 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 by the depiction or description of "specified sexual activities" or "specified anatomical areas."
   (j)   Adult Theater.  Adult theater means a theater, concert hall, auditorium, or similar commercial establishment, which regularly features persons who appear in a state of nudity or semi-nude, or live performances, which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities."
   (k)   Employee.  Employee means a person who performs any service on the premises of a sexually oriented business on a full-time, part-time or contract basis, whether or not the person is denominated 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.
   (l)   Establishment.  Establishment means and includes any of the following:
      (1)   The opening or commencement of any sexually oriented business as a new business;
      (2)   The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
      (3)   The additions of any sexually oriented business to any other existing sexually oriented business; or
      (4)   The relocation of any sexually oriented business.
   (m)   Licensee.  Licensee means a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual, listed as an applicant on the application for a license; and in the case of an employee, a person in whose name a license has been issued authorizing employment in a sexually oriented business.
   (n)   Nudity or a State of Nudity.  Nudity or a state of nudity means the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernible turgid state.
   (o)   Person.  Person means an individual, proprietorship, partnership, corporation, association, or other legal entity.
   (p)   Semi-Nude or in a Semi-Nude Condition.  Semi-nude or in a semi-nude condition means the showing of the female breast below a horizontal line across the top of the areola at its highest point or the showing of the male or female buttocks. This definition shall include the entire lower portion of the human female breast, but shall 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.
   (q)   Sexually Oriented Business.  Sexually oriented business means an adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio or sexual encounter center.
   (r)   Specified Anatomical Areas. Specified anatomical areas means:
      (1)   The human male genitals in a discernible turgid state, even if completely and opaquely covered; or
      (2)   Less than completely and opaquely covered human genital, public region, buttocks or a female breast below a point immediately above the top of the areola.
   (s)   Specified Criminal Activity. Specified criminal activity means any of the following offenses:
      (1)   Prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution, or display of harmful material to a minor; sexual performance by a child; possession or distribution of child pornography; public  lewdness; indecent exposure; indecency with a child; engage in organized criminal activity; sexual assault; molestation of a child; gambling; or distribution of a controlled substance; or any similar offenses to those described above under the criminal or penal code of other states or countries;
      (2)   For which:
         A.   Less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
         B.   Less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or 
         C.   Less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24-month period.
      (3)   The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or a person residing with the applicant.
   (t)   Specified Sexual Activities.  Specified sexual activities means any of the following:
      (1)   The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
      (2)   Sex acts, normal or perverted, actual or simulated, including intercourse,  oral copulation, masturbation, or sodomy; or
      (3)   Excretory functions as part of or in connection with any of the activities set forth in paragraphs (1) through (2) above.
   (u)   Substantial Enlargement.  Substantial enlargement of a sexually oriented business means the increase in floor areas occupied by the business by more than twenty-five (25%) percent, as the floor areas exist on the date this article takes effect.
   (v)   Transfer of Ownership Or Control.  Transfer of ownership or control of a sexually oriented business means and includes any of the following:
      (1)   The sale, lease, or sub-lease of the business;
      (2)   The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
      (3)   The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
         (Passed 5-6-04.)