A. Purpose And Intent: It is the purpose and intent of this chapter to regulate sexually oriented businesses to promote the health, safety, morals and general welfare of the citizens of the city and to establish reasonable and uniform regulations to prevent any deleterious location and concentration of sexually oriented businesses within the city, thereby reducing or eliminating the adverse secondary effects from such sexually oriented businesses. 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, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent, nor effect of this chapter to condone or legitimize the distribution of obscene material.
B. Findings: Based on evidence presented regarding the detrimental social and economic effects on persons and properties immediately surrounding established sexually oriented businesses and after having reviewed said evidence and studies, and on findings incorporated in the cases of City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), Young v. American Mini Theaters, 427 U.S. 50 (1976), and Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991), and on studies and summary of studies in other communities, including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; Beaumont, Texas; and New York, New York; and also on findings from the report of the attorney general's working group on the regulation of sexually oriented businesses (June 6, 1989, state of Minnesota); and also on the reports, memos, affidavits and other documents originally provided to the city of Evanston, Wyoming, by Detective Dan Kimett of the Denver, Colorado police department on July 27, 1997, and a transcript of the testimony of Sergeant Pete Carey of Colorado Springs, Colorado police department originally provided to the city of Evanston, Wyoming, at a public meeting held on July 28, 1997, the governing body finds:
1. Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are often uncontrolled by any other mechanism in the city to make the owners of these establishments responsible for the activities that may occur on their premises.
2. The evidence shows that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution. Sexual acts, including masturbation, and oral and anal sex, occur at sexually oriented businesses, especially those which provide private or semiprivate booths or cubicles for viewing films, videos or live sex shows.
3. The transcript of documented evidence and testimony of officer Pete Carey shows that sexually oriented businesses, because of their very nature, have a deleterious effect on both existing businesses around them and the surrounding residential areas adjacent to them, causing, among other adverse secondary effects, increased crime and downgrading of property values.
4. The evidence shows that sexually oriented businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are operating in close proximity to each other, thereby contributing to crime, lower property values, urban blight and downgrading of the quality of life in the adjacent area.
5. The studies referred to in the beginning of this section show that real estate professionals are of the opinion that a concentration of adult businesses can be expected to have an adverse economic effect on the value of nearby commercial and residential property.
6. The evidence shows increased crime and unhealthful conduct tend to accompany, concentrate around and be aggravated by sexually oriented businesses, including, but not limited to, prostitution, pandering, public indecency, public disturbances and exposing minors to harmful materials.
7. Sexually transmitted diseases, including AIDS, are a legitimate health concern of the city, which requires reasonable regulations of sexually oriented businesses in order to protect the health and well being of the citizens.
8. Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns.
9. Removal of doors on adult booths and requiring sufficient lighting on premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult video arcades and also promotes the safety of law enforcement personnel.
10. The general welfare, health, morals and safety of the citizens of the city will be promoted by the enactment of this chapter.
C. Definitions:
ADULT ARCADE: Any place to which the public is permitted or invited wherein coin operated, slug operated, or for any form of consideration, 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 (5) 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".
ADULT BOOKSTORE, ADULT NOVELTY STORE OR ADULT VIDEO STORE: A commercial establishment which devotes more than thirty percent (30%) of its stock in trade or of its interior floor space to, or more than thirty percent (30%) of its advertising expenditures to the promotion of, the sale, rental or viewing, for any form of consideration any one or more of the following:
1. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, videocassettes 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 designed for use in connection with "specified sexual activities".
3. A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental or 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 the provisions of subsection 2 of this definition are otherwise met.
ADULT CABARET: A nightclub, bar, restaurant or similar commercial establishment which regularly features:
1. Persons who appear in a state of nudity or seminude; or
2. Live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or
3. Films, motion pictures, videocassettes, slides or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas".
ADULT MOTEL: A hotel, motel or similar commercial establishment which:
1. Offers accommodations to the public for any form of consideration, provides patrons with closed circuit television transmissions, films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas"; and has a sign visible from the public right of way which advertises the availability of this adult type of photographic reproductions; or
2. Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten (10) hours.
ADULT MOTION PICTURE THEATER: A commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction of "specified sexual activities" or "specified anatomical areas".
ADULT THEATER: A theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or seminude, or live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities".
EMPLOYEE: 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 for the delivery of goods to the premises.
ESCORT: A person who, for 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.
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, or other consideration.
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.
MASSAGE PARLOR: Any place where, for any form of consideration or gratuity, massage, alcohol rub, administration of fomentation or any other treatment 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 their "specified anatomical areas".
NUDE MODEL STUDIO: Any place where a person who appears seminude, in a state of nudity, or who displays "specified anatomical areas" and is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration. Nude model studio shall not include a proprietary school licensed by the state of Wyoming, or a college, junior college or university supported entirely or in part by public taxation, a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college or university supported entirely or partly by taxation, nor shall it include a modeling class operated in a structure:
1. That has no sign visible from the exterior of the structure and no other advertising that indicates a nude or seminude person is available for viewing; and
2. Where in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and
3. Where no more than one nude or seminude model is on the premises at any one time.
NUDITY OR A STATE OF NUDITY: 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 discernable turgid state.
PERSON: An individual, proprietorship, partnership, corporation, limited liability company, association, or other legal entity.
SEMINUDE OR IN A SEMINUDE CONDITION: A state of dress in which clothing covers no more than the genitals, pubic region and areolae of the female breast, as well as portions of the body covered by supporting straps or devices.
SEXUAL ENCOUNTER CENTER: A business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration:
1. Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
2. Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or seminude.
SEXUALLY ORIENTED BUSINESS: 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.
SPECIFIED ANATOMICAL AREAS: 1. The human male genitals in a discernable turgid state, even if completely and opaquely covered; or
2. Less than completely and opaquely covered human genitals, pubic region, buttocks or a female breast below a point immediately above the top of the areola.
SPECIFIED SEXUAL ACTIVITIES: 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 subsections 1 and 2 of this definition.
D. Classification: Sexually oriented businesses are classified as follows:
1. Adult arcade;
2. Adult bookstore, adult novelty store or adult video store;
3. Adult cabaret;
4. Adult motel;
5. Adult motion picture theater;
6. Adult theater;
7. Massage parlor;
8. Sexual encounter establishment;
9. Escort agency; or
10. Nude model studio.
E. Location Of Sexually Oriented Business:
1. A person commits a misdemeanor if that person operates or causes to be operated a sexually oriented business in any zoning district other than an open business/light industrial D-3 zone, as defined in title 10, chapter 10, article C of this code.
2. A person commits a misdemeanor if he operates or causes to be operated a sexually oriented business within five hundred feet (500') of:
a. Any religious institution;
b. Any school;
c. The boundary of any residential district;
d. Any public park or recreation area;
e. A property line of a lot devoted to residential use; or
f. A boys' club, girls' club, or similar existing youth organization.
3. A person commits a misdemeanor if he operates or causes to be operated a sexually oriented business within five hundred feet (500') of another such business, which will include, any adult arcade, adult bookstore, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, massage parlor or any sexual encounter establishment.
4. A person commits a misdemeanor if he causes or permits the operation, establishment or maintenance of more than one sexually oriented business within the same building, structure, or portion thereof, or causes the substantial enlargement of any sexually oriented business in any building, structure or portion thereof containing another sexually oriented business.
5. For the purposes of subsection E2 of this section, measurement shall be made in a straight line, without regard to intervening structures, or objects from the property line of the lot or parcel containing the premises where a sexually oriented business is conducted, to the nearest property line of the lot or parcel of the premises of a use listed in subsection E2 of this section. Presence of a city, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this section.
6. For the purposes of subsection E3 of this section, the distance between any two (2) sexually oriented businesses shall be measured in a straight line, without regard to intervening structures, or objects from the property line of the lot or parcel containing the premises where a sexually oriented business is located.
7. For sexually oriented businesses lawfully operating on the effective date hereof, they shall not be required to comply with subsections E1 through E6 of this section.
F. Exhibition Of Sexually Explicit Films Or Video In Video Booths: A misdemeanor is committed by a person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, videocassette or other video reproduction which depicts specified sexual activities or specified anatomical areas, if the person fails to comply with the following requirements:
1. The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager or employee's station of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two (2) or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station.
2. All viewing rooms and booths shall remain unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times no patron is permitted access to any area of the premises which had been designated as an area in which patrons will not be permitted.
3. No viewing room may be occupied by more than one person at any one time.
4. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access and an illumination of not less than five (5) foot-candles as measured at the floor level.
5. The illumination described in subsection F4 of this section shall be maintained at all times that any patron is present on the premises.
6. No openings of any kind shall be allowed to exist between viewing rooms or booths.
7. No employee shall knowingly or with reasonable cause to know, permit or allow a patron to commit on the premises an act of "public indecency" as set forth in Wyoming Statutes section 6-4-201.
G. Nude Model Studios:
1. A person under the age of eighteen (18) years commits an offense if the person appears seminude or in a state of nudity in or on the premises of a nude model studio. It is a defense to prosecution under this subsection if the person under eighteen (18) years was in a restroom not open to public view or visible to any other person.
2. A person commits an offense if the person appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude model studio premises which can be viewed from the public right of way.
3. A nude model studio shall not place or permit a bed, sofa or mattress in any room on the premises, except that a sofa may be placed in a reception room open to the public.
H. Public Nudity: Public nudity is prohibited within the city, including within any sexually oriented business.
I. Regulations Pertaining To Adult Theaters And Cabarets:
1. It shall be a misdemeanor for a person to knowingly or intentionally appear, entertain or perform in a seminude condition in an adult theater or adult cabaret unless the person is an employee who, while seminude, shall be at least ten feet (10') from any patron or customer and on a stage elevated at least two feet (2') from the floor.
2. It shall be a misdemeanor for a patron or customer to pay or give directly any gratuity to any employee, before, during or after an employee has performed or entertained in an adult theater or cabaret. A patron who wishes to pay or give a gratuity to a performer shall place the gratuity in a container that is at all times located separately from the performer.
3. It shall be a misdemeanor for an employee, while seminude, to have physical contact with a customer or patron while on the premises. It shall be a misdemeanor for a customer to have physical contact with any employee while said employee is seminude in a sexually oriented business.
4. Subsection I1 of this section shall not apply to an employee of a sexually oriented business, who, while acting in the scope of their employment as a waiter, waitress, host, hostess or bartender, comes within ten feet (10') of a patron.
J. Prohibition Against Minor In A Sexually Oriented Business: A person commits a misdemeanor if the person knowingly or with reasonable cause to know, permits or allows:
1. A person under the age of eighteen (18) years to be admitted to or remain on the premises of a sexually oriented business unless accompanied by his or her parent or guardian.
2. A person under the age of eighteen (18) years to purchase goods or services at the business premises without the specific consent of his or her parent or guardian.
3. A person under the age of eighteen (18) years to work at the business as an employee.
K. Hours Of Operation: A person commits a misdemeanor if the person operates or causes to be operated a sexually oriented business, except for an adult motel, and allows such business to remain open for business at any time between the hours of two o'clock (2:00) A.M. and six o'clock (6:00) A.M. of any particular day.
L. Exemptions: It is a defense to prosecution under subsections G and H of this section that a person over the age of eighteen (18) appearing in a state of nudity did so in a modeling class operated:
1. By a proprietary school licensed by the state of Wyoming; a college, junior college or university supported entirely or partly by taxation;
2. By a private college or university which maintains and operates educational program in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or
3. In a structure:
a. Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and
b. Where, in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and
c. Where no more than one nude model is on the premises at any one time.
M. Advertising:
1. A person commits a misdemeanor if the person operates or causes to be operated a sexually oriented business, and advertises the presentation of or depicts or exhibits any activity prohibited by any applicable state statute or local ordinance.
2. A person commits a misdemeanor if the person operates or causes to be operated a sexually oriented business, and displays or otherwise exhibits the materials or goods of such sexually oriented business in advertising which is visible outside the premises. This prohibition shall not extend to advertising of the existence or location of sexually oriented business.
3. Nothing contained in this section shall relieve a sexually oriented business from complying with any other relevant requirements of this code.
N. Injunction: A person who operates or causes to be operated a sexually oriented business in violation of this chapter is subject to a suit for injunction as well as prosecution for criminal violations. Each day a sexually oriented business so operates is a separate offense or violation. (Ord. 00-02)