CHAPTER 113: SEXUALLY ORIENTED BUSINESSES

(A) It is the purpose of this chapter to regulate sexually oriented businesses to promote the health and safety, morals and general welfare of the citizens of the town and to establish reasonable and uniform regulations to prevent deleterious effects of sexually oriented businesses within the town.

(B) The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment to the United States Constitution or by the State Constitution, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent or effect of this chapter to in any way condone or legitimize the distribution of obscene material or material harmful to minors.

(Prior Code, § 50.01) (Ord. 2-2001, passed 5-23-2001)

§ 113.02 DEFINITIONS.

(A) For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

EMPLOYEE. A person who works or performs in or for a sexually oriented business, regardless of whether or not said person is paid a salary, wage or other compensation by the operator of said business.

ESTABLISHMENT. Any of the following:

(a) The opening or commencement of any such business as a new business;

(b) The conversion of an existing business, regardless of whether it currently exists as a sexually oriented business, to any of the sexually oriented businesses defined in this chapter;

(c) The addition of any of the sexually oriented businesses defined in this chapter to any other existing sexually oriented business; or

(d) The relocation of any such sexually oriented business.

NUDITY or STATE OF NUDITY.

(a) The appearance of a human bare buttocks, anus, male or female genitals or the areola or nipple of the female breast; or

(b) A state of dress which fails to opaquely and fully cover a human buttocks, anus, male or female genitals, pubic region or the areola or nipple of the female breast.

OPERATOR. The owner, permit holder, custodian, manager, operator or person in charge of any permitted or licensed premises.

PERMITTED OR LICENSED PREMISES. Any premises that requires a license or permit and that is classified as a sexually oriented business.

PERMITTEE or LICENSEE. A person in whose name a permit or license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit or license.

PERSON. An individual, proprietorship, partnership, corporation, association, limited liability company or other legal entity.

PUBLIC BUILDING. Any building owned, leased or held by the United States, the state, the county or the town, any special district or school district or any other agency or political subdivision of the state or the United States, which building is used for governmental purposes.

PUBLIC PARK or RECREATION AREA. Public land which has been designated for park or recreational activities, including, but not limited to, a park, playground, nature trail, swimming pool, reservoir, athletic field, basketball or tennis court, pedestrian/bicycle path, open space, wilderness area or similar public land within the town which is under the control, operation or management of the town parks and recreation authorities.

RELIGIOUS INSTITUTION. Any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities.

RESIDENTIAL DISTRICT OR USE. A single-family, duplex, townhouse, multiple-family or mobile home park or subdivision as defined in the town’s Zoning Code.

SCHOOL. Any public or private educational facility, including, but not limited to, child day care facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, colleges and universities. The term SCHOOL includes the school grounds but does not include facilities used primarily for another purpose and only incidentally as a school.

SEMI-NUDE. A state of dress in which clothing covers not more than the genitals, pubic region and areola of the female breasts, as well as portions of the body that are covered by supporting straps or devices.

SEXUALLY ORIENTED BUSINESS. An adult arcade, adult bookstore, adult novelty shop, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, massage parlor, sexual encounter establishment and escort agency or nude model studio.

SPECIFIED ANATOMICAL AREAS. Any of the following:

(a) Less than completely and opaquely covered human genitals, pubic region, buttocks, anus or female breasts below a point immediately above the top of the areola; or

(b) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

SPECIFIED SEXUAL ACTIVITIES. Any of the following:

(a) The fondling or other intentional touching of human genitals, pubic region, buttocks, anus or female breasts;

(b) Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy;

(d) Human genitals in a state of sexual stimulation, arousal or tumescence; or

(e) Excretory functions as part of or in connection with any of the activities set forth in divisions (a) through (d) above.

SUBSTANTIAL ENLARGEMENT OF A SEXUALLY ORIENTED BUSINESS. An increase in the floor areas occupied by the business by more than 15% as the floor areas exist on the date this chapter takes effect.

TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS. Any of the following:

(a) The sale, lease or sublease of the business;

(b) The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means; or

(c) The establishment of a trust, gift or other similar legal device which transfers ownership or control of the business, except for transfer by bequest or other operation of law upon the death of a person possessing the ownership or control.

(B) Additionally, SEXUALLY ORIENTED BUSINESSES are those businesses which are defined as follows.

(1) ADULT ARCADE. An establishment where, for any form of consideration, one or more still or motion picture projectors, slide projectors or similar machines, or other image-producing machines, for viewing by five or fewer persons each, are regularly used to show 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.

(2) ADULT BOOKSTORE, ADULT NOVELTY STORE or ADULT VIDEO STORE. A commercial establishment which has as a significant or substantial portion of its stock-in-trade, or derives a significant or substantial portion of its revenues, or devotes a significant or substantial portion of its interior business or advertising, to the sale or rental, for any form of consideration, of any one or more of the following:

(a) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides or other visual representations, which are characterized by the depiction or description of specified sexual activities or specified anatomical areas;

(b) Instruments, devices or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others; or

(c) An establishment may have other principal business purposes that do not involve the offering for sale, rental or viewing of materials depicting or describing specified sexual activities or specified anatomical areas and still be categorized as an adult bookstore, adult novelty store or adult video store. Such other business purposes will not serve to exempt such 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 offering for sale or rental, for some form of consideration, the specified materials which depict or describe specified anatomical areas or specified sexual activities.

(3) ADULT CABARET. A nightclub, bar, restaurant, bottle club or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features:

(a) Persons who appear nude of in a state of nudity or semi-nudity;

(b) Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or

(c) 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.

(4) ADULT MOTEL. A motel, hotel or similar commercial establishment which:

(a) Offers public accommodations, for any form of consideration, which provide patrons with closed-circuit television transmissions, 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 and which advertise the availability of this sexually oriented type of material by means of a sign visible from the public right-of-way or by means of any off-premises advertising, including, but not limited to, newspapers, magazines, pamphlets, leaflets, radio or television;

(b) Offers a sleeping room for rent for a period of time less than ten hours; or

(5) ADULT MOTION PICTURE THEATER. A commercial establishment where films, motion pictures, video cassettes, slides or similar photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas are regularly shown for any form of consideration.

(6) ADULT THEATER. A theater, concert hall, auditorium or similar commercial establishment which, for any form of consideration, regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.

(7) ESCORT. A person who, for any form of consideration, agrees or offers to act as a companion, guide or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.

(8) ESCORT AGENCY. A person or business association who furnishes, offers to furnish or advertises to furnish escorts as one of its primary business purposes for a fee, tip or other consideration.

(9) MASSAGE PARLOR. Any 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 which occurs as a part of or in connection with specified sexual activities, or where any person providing such treatment, manipulation or service related thereto exposes his or her specified anatomical areas. The definition of sexually oriented businesses shall not include the practice of massage in or by any licensed hospital; nor by a licensed physician, surgeon, chiropractor or osteopath; nor by trainers for any amateur, semiprofessional or professional athlete or athletic team or school athletic program; nor by any person so licensed by the state to perform such activities.

(10) NUDE MODEL STUDIO. Any place where a person who regularly appears in a state of nudity or displays specified anatomical areas for money or any form of consideration and is to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons.

(11) SEXUAL ENCOUNTER ESTABLISHMENT. A business or commercial establishment that, as one of its primary business purposes, offers for any form of consideration a place where two or more persons may congregate, associate or consort for the purpose of engaging in specified sexual activities or the exposure of specified anatomical areas or activities when one or more of the persons is in a state of nudity or semi-nude. The definition of sexually oriented businesses shall not include an establishment where a medical practitioner, psychologist, psychiatrist or similar professional person licensed by the state engages in medically approved and recognized sexual therapy.

(Prior Code, § 50.02) (Ord. 2-2001, passed 5-23-2001)

§ 113.03 PERMIT REQUIRED.

(A) No person shall conduct, maintain or operate, or cause to be conducted, maintained or operated, any sexually oriented business within the corporate limits of the town without first being licensed under this chapter.

(B) The Town Council or its designee is responsible for granting, denying, revoking, renewing, suspending and canceling sexually oriented business permits for proposed or existing sexually oriented businesses. The Town Council or its designee is also responsible for ascertaining whether a proposed sexually oriented business for which a permit is being applied complies with all applicable zoning laws or regulations now in effect, or as amended or enacted subsequent to the effective date of this chapter, in the town and the town’s Comprehensive Plan.

(C) The town’s Police Department shall be responsible for providing information on whether an applicant has been convicted of a specified criminal act during the time period set forth.

(D) The town’s Code Enforcement Department shall be responsible for inspecting a proposed permitted or non-permitted sexually oriented business in order to ascertain whether it is in compliance with applicable statutes and ordinances.

(E) An application for a permit must be made on a form provided by the Town Council. Any person desiring to operate a sexually oriented business shall file with the town an original and two copies of a sworn permit application on the standard application form supplied by the Town Council or its designee.

(F) The completed application shall contain the following information and shall be accompanied by the following documents:

(1) If the applicant is:

(a) An individual, the individual shall state his or her legal name and any aliases and submit satisfactory proof that he or she is 18 years of age;

(b) A partnership, the partnership shall state its complete name and the names of all partners, whether the partnership is general or limited, and a copy of the partnership agreement, if any; and

(c) A corporation, the corporation shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of the state, the names and capacity of all officers, directors and principal stockholders, the name of the registered corporate agent and the address of the registered office for service of process.

(2) If the applicant intends to operate the sexually oriented business under a name other than that of the applicant, he or she must state the sexually oriented business’s fictitious name and submit the required state registration documents;

(3) Whether the applicant or any of the other individuals listed in the application has, within a five-year period immediately preceding the date of the application, been convicted of a specified criminal act, and if so, the specified criminal act involved and the date and place of conviction;

(4) Whether the applicant or any of the other individuals listed in the application has had a previous permit under this chapter, or other similar sexually oriented business ordinances from another city or county, denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked, as well as the date of the denial, suspension or revocation, and whether the applicant or any other individuals listed in the application has been a partner in a partnership or an officer, director or principal stockholder of a corporation that is permitted under this chapter whose permit has previously been denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked, as well as the date of denial, suspension or revocation;

(5) Whether the applicant or any other individual listed in the application holds any other permits or licenses under this chapter or other similar sexually oriented business ordinance from another city, county or state, and if so, the names and locations of such other permitted businesses;

(6) The single classification of permit for which the applicant is filing;

(7) The location of the proposed sexually oriented business, including a legal description of the property, street address and telephone number(s), if any;

(8) The applicant’s mailing address and residential address;

(9) A recent photograph of the applicant(s);

(10) The applicant’s driver’s license number, Social Security number and/or his or her state or federally issued tax identification number;

(11) A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but it must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches;

(12) A current certificate and straight-line drawing prepared within 30 days prior to application by a state-registered land surveyor depicting the property lines and the structures containing any established existing uses regulated by this chapter that are within 1,000 feet of the property to be certified; the property lines of any established religious institution/synagogue, school or public park or recreation area within 1,000 feet of the property to be certified; and the property lines of any residentially zoned area or residential property within 1,000 feet of the property to be certified. For the purposes of this section, a use shall be considered EXISTING OR ESTABLISHED if it is in existence at the time an application is submitted;

(13) If a person who wishes to operate a sexually oriented business is an individual, he or she must sign the application for a permit as applicant. If a person wishes to operate a sexually oriented business collectively with a group of individuals, each individual who has a 10% or greater interest in the business must sign the application for a permit as applicant. If a corporation is listed as the owner of a sexually oriented business or as the entity that wishes to operate such a business, each individual having a 10% or greater interest in the corporation must sign the application for a permit as applicant; and

(14) If a person wishes to operate a sexually oriented business which shall exhibit on the premises films, video cassettes or other video reproductions which depict specified sexual activities or specified anatomical areas, then said person shall comply with the application requirements.

(G) Applicants for a permit under this section shall have a continuing duty to promptly supplement application information required by this section in the event that said information changes in any way from what is stated on the application. The failure to comply with said continuing duty within 30 days from the date of such change shall be grounds for suspension of a permit.

(H) In the event that the Town Council or its designee determines or learns at any time that the applicant has improperly completed the application for a proposed sexually oriented business, it shall promptly notify the applicant of such fact and allow the applicant ten days to properly complete the application. (The time period for granting or denying a permit shall be stayed during the period in which the applicant is allowed an opportunity to properly complete the application.)

(I) The applicant must be qualified according to the provisions of this chapter and the premises must be inspected and found to be in compliance with health, fire and building codes and laws.

(J) The applicant shall be required to pay a non-refundable application fee of $100 at the time of filing an application under this section.

(K) Prior to obtaining any permit or license to operate any sexually oriented business defined in this chapter, and as part of any application for a permit under this section, the applicant shall obtain from the Town Council or its designee a certification that the proposed location of such business complies with the town’s Zoning Code.

(L) The fact that a person possesses other types of state or town permits or licenses does not exempt him or her from the requirement of obtaining a sexually oriented business permit.

(M) By applying for a permit under this chapter, the applicant shall be deemed to have consented to the provisions of this chapter and to the exercise by the Town Council or its designee, the Police Department and all other town agencies charged with enforcing the laws, ordinances and codes applicable in the town of their respective responsibilities under this chapter.

(N) The applicant shall be required to provide the town with the names of any and all employees who are required to be licensed pursuant to § 113.13 of this chapter. This shall be a continuing requirement even after a permit is granted or renewed.

(Prior Code, § 50.03) (Ord. 2-2001, passed 5-23-2001) Penalty, see § 113.99

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