For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ADULT ACCESSORY USE. Less than a fourth of the floor area, up to a maximum of 500 square feet, of an otherwise permitted business, not including storerooms, stock areas, bathrooms, basements or any portion of the business not open to the public and open to employees/agents only, is devoted to materials or persons depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas.
(1) ADULT ACCESSORY USE— LIMITED IMPACT. A business or establishment where material distinguished and characterized by an emphasis on the depiction or description of specified sexual activities or specific anatomical areas is available for barter, rental or sale and meeting all of the following requirements:
(a) All materials distinguished and characterized by an emphasis on the depiction or description of specified sexual activities or specific anatomical areas must be provided for use or entertainment off the businesses premises only;
(b) All materials distinguished and characterized by an emphasis on the depiction or description of specified sexual activities or specific anatomical areas shall be restricted from and prohibit access to minors by physical separation of the items from areas of general public access.
(2) ADULT ACCESSORY USE—HIGH IMPACT. A business establishment where materials or persons distinguished and characterized by an emphasis on the depiction or description of specified sexual activities or specific anatomical areas are available and meeting the following requirements:
(a) A business where materials distinguished and characterized by an emphasis on the depiction or description of specified sexual activities or specific anatomical areas are sold, bartered, distributed, leased, furnished, exhibited or otherwise provided for use or entertainment on the business premises;
(b) A business where specified sexually activities are explicitly verbally described or shown;
(c) A business providing materials distinguished and characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas for off-site use or entertainment, which has a separate area for the materials distinguished and characterized by an emphasis on the depiction or description of specified sexual activities or specific anatomical areas, but does not meet the size or other restrictions to qualify as an adult accessory use—limited impact;
(d) A business providing materials distinguished and characterized by an emphasis on the depiction or description of specified sexual activities or specific anatomical areas for off-site use or entertainment, where materials distinguished and characterized by an emphasis on the depiction or description of specified sexual activities or specific anatomical areas are dispersed within the business rather than isolated in a separate area.
(3) ADULT ACCESSORY USE ACTIVITIES. The sale or display of instruments, devices or paraphernalia which are used or designed for use in connection with specified sexual activities, shall be prohibited at any public show, movie, caravan, circus, carnival, theatrical or other performance or exhibition presented to the general public where minors are admitted.
ADULT ESTABLISHMENT.
(1) Any business that is conducted exclusively for the patronage of adults and as to which minors are excluded from patronage either by operation of law or by the owners of the business; and
(2) Any business that:
(a) Derives 25% or more of its gross receipts during any calendar month from; or
(b) Devotes 25% or more of its floor area (not including storerooms, stock areas, bathrooms, basements, or any portion of the business not open to the public) to items, merchandise, devices or other materials distinguished or characterized by an emphasis on material depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas; or
(c) Any business that engages in any adult use as defined in this section.
ADULT USE. An adult use is any of the activities and businesses defined below:
(1) ADULT BODY PAINTING STUDIO. An establishment or business which provides the service of applying paint or other substance, whether transparent or non-transparent, to or on the body of a patron when the body is wholly or partially nude in terms of specified anatomical areas as defined herein.
(2) ADULT BOOK STORE. An estab-lishment used for the barter, rental or sale of items consisting of printed matter, pictures, slides, records, audio tapes, videotapes, motion picture films, CDs (compact discs), DVDs (digital video discs) or any other form of recording, if:
(a) The business is not open to the public generally but only to one or more classes of the public, excluding any minor by reason of age, and
(b) Twenty-five percent or more of the business' gross receipts during any calendar month are derived from items, merchandise, or other materials distinguished or characterized by an emphasis on material depicting, describing, or relating to specified sexual activities or specified anatomical areas; or
(c) Twenty-five percent or more of its floor area (not including storerooms, stock rooms, bathrooms, basements, or any portion of the business not open to the public) is devoted to items, merchandise, or other materials distinguished or characterized by an emphasis on materials depicting, describing, discussing or relating to specified sexual activities or specified anatomical areas.
(3) ADULT CABARET. A building or portion of a building used for providing dancing or other live entertainment, if the building or portion of a building excludes minors by virtue of age or if the dancing or other live entertainment is distinguished and characterized by an emphasis on the presentation, display, depiction or description of specified sexual activities or specified anatomical areas.
(4) ADULT COMPANIONSHIP ESTABLISHMENT. A companionship establishment which excludes minors by reason of age, or which provides the service for a fee of engaging in or listening to conversation, talk or discussion between an employee of the establishment or an independent contractor connected with the establishment and a customer, if the service is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas, as defined herein.
(5) ADULT CONVERSATION/RAP PARLOR. A conversation/rap parlor which excludes minors by reason of age, or which provides the services of engaging in or listening to conversation, talk, or discussion, if the services are distinguished and characterized by an emphasis on specified sexual activities or specified anatomical areas.
(6) ADULT ENTERTAINMENT FACILITY. A building or space wherein an admission is charged for entrance or food or nonalcoholic beverages are sold or intended for consumption and wherein may be observed live presentation or entertainment distinguished or characterized by an emphasis on matters depicting, describing, or relating to specified sexual activities or specified anatomical areas, as defined herein.
(7) ADULT HEALTH/SPORT CLUB. A health/sport club which excludes minors by reason of age, if the club is distinguished and characterized by an emphasis on specified sexual activity or specified anatomical areas.
(8) ADULT HOTEL or MOTEL. A hotel or motel from which minors are specifically excluded from patronage and where material is presented which is distinguished and characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.
(9) ADULT MASSAGE PARLOR. A massage parlor or health club which restricts minors by reason of age, and which provides the services of massage, if the service is distinguished and characterized by an emphasis on specified sexual activities or specified anatomical areas.
(10) ADULT MINI MOTION PICTURE THEATER. A building or space with a capacity for fewer than 50 persons used for presenting material distinguished or characterized by an emphasis on matters, depicting, describing or relating to specified sexual activities or specified anatomical areas as herein defined, for observation by patrons therein. The phrase “used for” in this definition shall mean a regular and substantial course of conduct and not a one-time presentation of the material.
(11) ADULT MODELING STUDIO. An establishment whose major business is the provision to customers, of figure models who are so provided with the intent of providing sexual stimulation or sexual gratification to customers and who engage in specified sexual activities as defined herein or display specified anatomical areas as defined herein while being observed, painted, painted upon, sketched, drawn, sculptured, photographed or otherwise depicted by the customers.
(12) ADULT MOTION PICTURE ARCADE. Any place to which the public is permitted or invited wherein coin or slug-operated or electronically, electrically or mechanically controlled or operated 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 and characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas.
(13) ADULT MOTION PICTURE THEATER. A building or space with a capacity of 50 or more persons used for presenting material distinguished or characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas as herein defined, for observation by patrons therein. The phrase “used for” in this definition shall mean a regular and substantial course of conduct and not a one-time presentation of the material.
(14) ADULT NOVELTY BUSINESS. Any business that meets any of the following criteria:
(a) It offers for sale items from any two of the following categories: sexually oriented media; items or merchandise depicting specified sexual activities or specified anatomical areas; or devices which wither stimulate human genitals or are designed for sexual stimulation; lingerie; leather goods marketed or presented in a context to suggest their use for sadomasochistic practices; and the combination of such items constitutes 25% or more than the stock-in trade of the business or occupies 25% or more of the gross public floor area of the business or the sale of such items constitutes 25% or more of its gross receipts during any calendar month; or
(b) Five percent or more of the stock-in-trade of the business consists of items or merchandise depicting specified sexual activities or specified anatomical areas; or devices which either stimulate human genitals or are designed for sexual stimulation; or
(c) Five percent or more of the gross public floor area of the business is devoted to the display of items or merchandise depicting specified sexual activities or specified anatomical areas or devices which either stimulate human genitals or are designed for sexual stimulation; or
(d) It advertises or hold itself out in any forum as "XXX", "adult", "sex", or otherwise as an adult establishment.
(15) ADULT SAUNA. A sauna which provides a steam bath or heat bathing room used for the purpose of bathing, relaxation or reducing, utilizing steam or hot air as a cleaning, relaxing or reducing agent, if the service provided by the sauna is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas, as defined herein.
BOOTHS, STALLS, PARTITIONED PORTIONS OF ROOMS or INDIVIDUAL ROOMS.
(1) Enclosures specifically offered to persons for a fee or as an incident to performing high- risk sexual conduct; or
(2) Enclosures which are part of a business operated on the premises which offers movies or other entertainment to be viewed within the enclosure, including enclosures wherein movies or other entertainment is dispensed for a fee.
(3) The phrase
BOOTHS, STALLS, PARTITIONED PORTIONS OF ROOMS or INDIVIDUAL ROOMS does not mean enclosures which are private offices used by the owners, managers or persons employed by the premises for attending to the tasks of their employment, and which are not held out to the public or members of the establishment for hire or for a fee or for the purpose of viewing movies or other entertainment for a fee, and are not open to any persons other than employees.
DOORS, CURTAINS or PORTAL PARTITIONS. Full, complete, nontransparent closure devices through which one cannot see or view activity taking place within the enclosure.
HEALTH INSPECTORS. Inspectors employed by the County of Dakota or their agents.
MINOR. Any natural person under the age of 18 years.
NUDITY. The showing of the human male or female genitals or pubic area with less than fully opaque covering; the showing of the female breast with less than a fully opaque covering below a point immediately above the top of the areola; or the depiction or showing of the covered male genitals in a discernibly turgid state.
OPEN TO AN ADJACENT PUBLIC ROOM SO THAT THE AREA INSIDE IS VISIBLE TO PERSONS IN THE ADJACENT PUBLIC ROOM. Either the absence of any entire “door, curtain or portal partition” or a door or other device which is made of clear, transparent material such as a glass, plexi-glass or other similar material meeting building code and safety standards, which permits the activity inside the enclosure to be entirely viewed or seen by persons outside the enclosure.
PERSON. One or more natural persons; a partnerships, including a limited partnership; a corporation, including a foreign, domestic, or nonprofit corporation; a trust; a political subdivision of the state; or any other business organization.
SCHOOL. Any public or private elementary or secondary school, alternative learning center or any place of educational, cultural, artistic, spiritual, physical or vocational learning or instruction which is provided primarily to minors.
SPECIFIED ANATOMICAL AREAS.
(1) Less than completely and opaquely covered:
(a) Human genitals, pubic region or pubic hair;
(b) Buttock;
(c) Female breast or breasts below a point immediately above the top of the areola; or
(d) Any combination of the foregoing.
(2) Human male genitals in a discernibly turgid state even if completely and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES. Includes, but is not limited to the following:
(1) Human genitals in a discernible state of sexual stimulation or arousal;
(2) Fondling or other erotic touching of human genitals, pubic region or pubic hair, buttock or female breast or breasts;
(3) Actual or simulated intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of a sexual relationship or the use of excretory functions in the context of a sexual relationship, and any of the following sexually-oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty;
(4) Use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation;
(5) Situations involving a person or persons, any of whom are nude, clad in undergarments or in sexually revealing costumes, and who are engaged in activities involving the flagellation, torture, fettering, binding or other physical restraint of any person;
(6) Erotic or lewd touching, fondling or other sexually-oriented contact with an animal by a human being; or
(7) Human excretion, urination, menstruation, vaginal or anal irrigation.
SUBSTANTIAL or SIGNIFICANT. For purposes of this section, the phrase SUBSTANTIAL or SIGNIFICANT means that at least a fourth of the portion of the floor area or at least 500 square feet of the business, not including storerooms, stock areas, bathrooms, basements or any portion of the business not open to the public and open to employees/agents only, is devoted to items, merchandise or other material that is distinguished or characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas.
(‘81 Code, § 4-31) (Ord. 619, passed 9-26-96; Am. Ord. 652, passed 10-22-98; Am. Ord. 722, passed 1-23-03)