© Naturist Action Committee      www.naturistaction.org

WEST VIRGINIA

Chapter 61, Article 61-8
CRIMES AGAINST CHASTITY, MORALITY AND DECENCY

61-8-9. Indecent exposure.

   (a) A person is guilty of indecent exposure when such person intentionally exposes his or her sex organs or anus or the sex organs or anus of another person, or intentionally causes such exposure by another or engages in any overt act of sexual gratification, and does so under circumstances in which the person knows that the conduct is likely to cause affront or alarm: Provided, That it is not considered indecent exposure for a mother to breast feed a child in any location, public or private.

     (b) Except as provided in subsection (c), any person who violates the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not more than ninety days, or fined not more than two hundred fifty dollars, or both fined and confined .

     (c) Any person who violates the provisions of subsection (a) of this section by intentionally exposing himself or herself to another person and the exposure was done for the purpose of sexual gratification, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars or confined in jail not more than twelve months, or both. For a second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars and confined in jail for not less than thirty days nor more than twelve months. For a third or subsequent offense, the person is guilty of a felony and, upon conviction thereof, shall be fined not more than three thousand dollars and imprisoned in a state correctional facility for not less than one year nor more than five years.

Note: Code updated with legislation passed through the 2010 2nd Extraordinary Session

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61-8-28. Criminal invasion of privacy; penalties.

     (a) For the purposes of this section, the words or terms defined in this subsection have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly appears from the context:
               (1) "A person fully or partially nude" means a male or female who is either clothed or unclothed so that: (A) All or any part of his or her genitals, pubic area or buttocks is visible; or (B) in the case of a female only, a part of a nipple of her breast is visible and is without a fully opaque covering;
               (2) "To visually portray" a person means to create a reproducible image of that person by means of:
                       (A) A photograph;
                       (B) A motion picture;
                       (C) A video tape;
                       (D) A digital recording; or
                       (E) Any other mechanical or electronic recording process or device that can preserve, for later viewing, a visual image of a person; and
               (3) "Place where a reasonable person would have an expectation of privacy" means a place where a reasonable person would believe that he or she could, in privacy, be fully or partially nude without expecting that the act of exposing his or her body was being visually portrayed by another person.
     (b) It is unlawful for a person to knowingly visually portray another person without that other person's knowledge, while that other person is fully or partially nude and is in a place where a reasonable person would have an expectation of privacy. A person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction, shall be confined in a county or regional jail for not more than one year or fined not more than five thousand dollars, or both.
     (c) Any person who displays or distributes visual images of another person with knowledge that said visual images were obtained in violation of subsection (b) of this section is guilty of a misdemeanor and, upon conviction, shall be confined in a county or regional jail for not more than one year or fined not more than five thousand dollars, or both.
     (d) A person who is convicted of a second or subsequent violation of subsection (b) or (c) of this section is guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not less than one year nor more than five years or fined not more than ten thousand dollars, or both.
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60-4-23. License to operate a facility where exotic entertainment is offered; definitions; restrictions, regulations and prohibitions; prohibitions against minors; application, renewal, license fee, restrictions on transfer; effective date; legislative rules; unlawful acts and penalties imposed.

     (a) For purposes of this section:

     (1) "Exotic entertainment" means live nude dancing, nude service personnel or live nude entertainment, and "nude" means any state of undress in which male or female genitalia or female breasts are exposed.

     (2) "Places set apart for traditional family-oriented naturism" means family nudist parks, clubs and resorts chartered by the American association for nude recreation or the naturist society, including all of their appurtenant business components, and also including places temporarily in use for traditional family-oriented naturist activities.

     (b) No person may operate any commercial facility where exotic entertainment is permitted or offered unless such person is granted a license by the commissioner to operate a facility where exotic entertainment may be offered. The provisions of this subsection apply whether or not alcoholic liquor, wine or nonalcoholic beer is legally kept, served, sold or dispensed in a facility, or purchased for use in a facility, or permitted to be brought by others into a facility and whether or not such person holds any other license or permit issued pursuant to chapter sixty of this code.

     (c) A licensee is subject to all the regulatory provisions of article seven of this chapter, whether or not the licensee is otherwise a private club. The commissioner shall have all the powers and authorization granted under article seven of this chapter to regulate, restrict and sanction a licensee under this section. No licensee may purchase, keep, sell, serve, dispense or purchase for use in a licensed facility, or permit others to bring into the facility, any alcoholic liquor, wine or nonintoxicating beer without having the appropriate license therefor. No licensee may operate a private club without being licensed therefor.

     (d) No person or licensee may allow a person under the age of eighteen years to perform as an exotic entertainer. No person under the age of twenty-one years, other than a performing exotic entertainer, may be allowed to be in a commercial facility on any day on which any exotic entertainment is offered therein. No licensee may hold special nonalcoholic entertainment events for persons under age twenty-one pursuant to the provisions of section eight, article seven of this chapter in the licensed facility.

     (e) Any person operating a commercial facility where exotic entertainment is offered on the effective date of this section may apply to the commissioner for a license to operate a facility where exotic entertainment may be offered. Applications must be filed with the commissioner on or before the first day of July, two thousand; thereafter no application for license may be received by the commissioner. The commissioner may issue a license to a person complying with the provisions of this chapter. Upon application for renewal, the commissioner shall annually, on the first day of July of each succeeding year, renew the license of any licensee then in compliance with the provisions of this chapter. The commissioner shall specify the form of application and information required of applicants and licensees. No license which has lapsed, been revoked or expired without renewal may be reissued.

     (f) A person to whom a license is issued or renewed under the provisions of this section shall pay annually to the commissioner a license fee of three thousand dollars. A municipal corporation wherein any such licensee is located shall issue a municipal license to any person to whom the commissioner has issued a license and may impose a license fee not in excess of the state license fee.

     (g) A person shall not sell, assign or otherwise transfer a license without the prior written approval of the commissioner. For purposes of this section, the merger of a licensee or the sale of more than fifty percent of the outstanding stock of or partnership interests in the licensee shall be deemed to be a sale, assignment or transfer of a license under this section. A license shall not be transferred to another location, except within the county of original licensure. A transferee of a licensed facility may apply for reissuance of the transferor's license if the transferee applicant otherwise qualifies for a license. The commissioner is authorized to propose the promulgation of a legislative rule in accordance with the provisions of chapter twenty-nine-a of this code, to implement the provisions of this subsection.

     (h) This section shall be effective upon passage by the Legislature in the year two thousand. On or before the first day of May, two thousand, the commissioner shall promulgate an emergency legislative rule pursuant to the provisions of chapter twenty-nine-a of this code to effectuate the provisions of this section, and shall propose a legislative rule therefor, for consideration by the Legislature, prior to the last day of December, two thousand.

     (i) Any person who violates any provision of this section, or principal of a firm or corporation which violates any provision of this section, or licensee, agent, employee or member of any licensee who violates any provision of this section, or who violates any of the provisions of section twelve, article seven of this chapter, on the premises of a licensed facility, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than three thousand dollars, or imprisoned for a period not to exceed one year, or both so fined and imprisoned.

     (j) The provisions of this section do not apply to places set apart for traditional family-oriented naturist activities.

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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, chapter eight 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, article twenty-four, chapter eight 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 twelve or twenty-four, chapter eight 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.

Note: Code updated with legislation passed through the 2008 2nd Extraordinary Session

[NAC NOTE: See SB 1010 from the 1st extraordinary session of the WV legislature in 2009.]

 


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