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SEXUALLY ORIENTED BUSINESSES
It is the purpose and intent of this subchapter to regulate sexually oriented businesses in order to promote the health, safety, morals and general welfare of the citizens of the town and to establish reasonable and uniform regulations to prevent the locating of the businesses in areas of the town where they may be harmful or deleterious to the community through adverse secondary effects. It is not intended hereby to impose a limitation or restriction on the content of any communicative materials, including sexually oriented materials, nor to restrict or deny access by adults to the materials insofar as they may be protected by the First Amendment.
(1974 Code, § 18-3-8-1) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
APPLICANT. Any individual group of individuals, partners or primary stockholders or owners of any corporation or other limited liability association who applies for permit to become the operator of a sexually oriented business.
EMPLOYEE. A person who works or performs in and/or for a sexually oriented business, regardless of whether or not the person is paid a salary, wage or other compensation by the operator of the business.
NUDITY or STATE OF NUDITY.
(1) The appearance of human bare buttock, anus, genitalia or the areola or nipple of the female breast; or
(2) A state of dress which fails to opaquely and fully cover any of the above.
OPERATOR. The owner, permit holder, custodian, manager, operator or person in charge of any sexually oriented business.
PERMITTED OR LICENSED PREMISES. Any premises that has obtained a license and/or permit as a sexually oriented business.
RESIDENTIAL USE. A single-family, duplex, townhouse, multiple-family, mixed residential or mobile home subdivision, as defined in the town zoning and subdivision ordinances, or a campground or other commercial housing use.
SEXUALLY ORIENTED BUSINESSES. Those businesses engaging in or offering to the public the following services or products.
(1) ADULT ARCADE. Projectors or other image producing machines offering films, motion pictures, video cassettes or other photographic reproductions, for a consideration and for viewing by five or fewer persons each, of material 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 which derives a significant or substantial portion of its revenue from the sale or rental for any form of consideration any one or more of the following:
(a) Books, magazines or other printed matter, or photographs, films, video cassettes or other visual representations which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas”; and/or
(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. Another principal business purpose will not exempt an establishment from coming within this definition so long as one of its principal business purposes is offering for sale or rental, for some consideration, any of the materials specified herein.
(3) ADULT THEATER. A commercial establishment where:
(a) Entertainment is offered featuring persons in a nude state or performers who in any manner expose “specified anatomical areas”; or
(b) Films, motion pictures, video cassettes or similar photographic reproductions are shown which are characterized by “specified sexual activities” for any form of consideration.
(4) ESCORT BUSINESS. The furnishing, offering to furnish or holding oneself out as a companion, guide or date where a consideration or gratuity of any type is paid to the escort and to the arranging agency, if one is involved. An agency or person who agrees or offers to privately model lingerie or to privately perform a striptease for another person for any consideration shall be included within this definition.
(5) MASSAGE PARLOR. Any place where, for any form of consideration, there occurs a massage, alcohol rub, administration of oils or balms, electric or magnetic treatments, or any other treatment manipulation of the human body which includes any “specified sexual activities”, or which includes exposure of the operator’s “specified anatomical areas”. This definition shall not include the practice of massage by any certified operator licensed by the state where the “specified sexual activity” or exposure is not offered or does not take place.
(6) NUDE MODEL STUDIO. Any place where a person engages in the business of regularly appearing in a state of nudity or displaying “specified anatomical areas” for any form of consideration to be observed, sketched, drawn, painted, sculpted, photographed or similarly depicted by other persons.
(7) SEXUAL ENCOUNTER ESTABLISHMENT. A business or commercial establishment that offers, as one of its primary business purposes and for a consideration, a place where two or more persons may congregate, associate or consort for the purpose of “specified sexual activities”.
SPECIFIED ANATOMICAL AREAS. Any of the following:
(1) 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; and/or
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES. Any of the following:
(1) The fondling or other intentional touching of human genitals, pubic region, buttocks, anus, or female breasts;
(2) Sex acts, normal or abnormal, actual or simulated, including intercourse, oral copulation or sodomy;
(3) Masturbation, actual or simulated;
(4) Human genitals in a state of sexual stimulation, arousal or tumescence; and/or
(5) Excretory functions as part of or in connection with any of the activities set forth in divisions (1) through (4) hereof.
TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS. Any of the following:
(1) The sale, lease or sublease 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 devise which transfers ownership, control or the primary beneficial interest in a business.
(1974 Code, § 18-3-8-2) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
(A) The establishment of a sexually oriented business shall be permitted only in a general commercial zone (§ 153.116), but in no event shall the business be permitted within 1,000 feet of any religious institution, school, boys’ or girls’ club or similar existing youth organization, or public park or public building, or within 1,500 feet of any property zoned for residential use or used for residential purposes.
(B) Nothing in this section prohibits the location of sexually oriented businesses within retail shopping centers located in a general commercial zone wherein the activities will have their only frontage upon enclosed malls or malls isolated from direct view from public streets, parks, schools, religious institutions, boys’ or girls’ club or similar existing youth organization, public buildings or residential districts or uses without regard to the distance requirements of division (A) above.
(1974 Code, § 18-3-8-3) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
As regarding § 153.087(A), distance between any sexually oriented business and any religious institution, public or private elementary or secondary school, boys’ or girls’ club or similar existing youth organization, or public park or public building, or any property zoned for residential use or used for residential purposes shall be measured in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as part of the premises where the sexually oriented business is conducted to the nearest property line of the zone or uses referred to herein.
(1974 Code, § 18-3-8-4) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
(A) It is the purpose of this subchapter to regulate sexually oriented businesses in order to promote the health, 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. The provisions of this subchapter have neither 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 to restrict or deny access by adults to sexually oriented materials protected by the First Amendment.
(B) No sexually oriented business shall be permitted to operate without a valid sexually oriented business permit issued by the town for the particular type of business. The permit shall be required in addition to the business license required under Chapter 110 of this code of ordinances and the Town Clerk shall be responsible for ascertaining whether a proposed sexually oriented business for which a permit is being applied complies with all zoning and location requirements of this section, as in the case of any other business license. The Town Council shall grant, deny, revoke, renew, suspend or cancel sexually oriented business permits based upon information supplied by the Town Clerk, augmented by the input from a public hearing in the event the Town Council shall choose to hold a hearing. Hearings shall be held in accordance with this code of ordinances with 30 days’ written notice being personally provided the permit applicant.
(C) Application for a business permit shall be made on a form provided by the town and shall contain the following information with regard to all owners and be accompanied by the following documents:
(1) The full legal name of:
(a) All individuals together with any aliases;
(b) Any partnership with the names of all partners and a copy of the partnership agreement, if any; and/or
(c) Any corporation together with the date and state of incorporation, a certificate of good standing from that state, the names and addresses of all officers, directors and principal stockholders, and the name of the statutory agent.
(2) If the applicant intends to operate the sexually oriented business under a name other than his or her own, he or she must state the fictitious name of the business and submit the required documents reflecting registration under any law of the state pertaining to the registration of a fictitious name then in effect;
(3) Whether the applicant or any of the other individuals listed pursuant to this division (C) has, within the two- or five-year periods specified herein, immediately preceding the date of the application, been convicted of a specified criminal act, and, if so, the specified criminal act involved together with the date and place of conviction;
(4) Whether the applicant or any of the other individuals listed pursuant to this division (C) has had a previous permit or license for a sexually oriented business denied, suspended or revoked, including the name and location of the business as well as the date of denial, suspension or revocation. If a permit or license for a partnership or corporation wherein any of the individuals were either a partner or an officer, director or principal stockholder was revoked, denied or suspended, the name, location and date of it must be included as well;
(5) Whether the applicant or any other individual, partnership or corporation listed pursuant to this section presently holds any other permits and/or licenses anywhere else for the operation of a sexually oriented business;
(6) The exact location of the proposed sexually oriented business, including both a legal description of the property and the street address. The mailing and residence (street) address of the applicant shall also be included;
(7) A recent photograph of the applicant(s);
(8) The applicant(s)’ driver’s permit number, Social Security number, birth date and tax identification number if a partnership or corporation;
(9) A sketch or diagram showing the configuration of the proposed premises, including a statement of total floor space to be occupied by the business. It should be to scale as near as reasonably possible and in an understandable form acceptable to the town; and
(10) The distance in feet from any church, public or private elementary or secondary school, boys’ or girls’ club or similar existing youth organization, or public park or public building, or any property zoned or used for residential purposes if the same be located within two blocks of the proposed business.
(D) Applicants granted a permit under this section shall have a continuing duty to promptly supplement application information required by this section in the event the information changes in any way from what is stated in the application. A failure to comply with this section within 30 days from the date of the change shall be grounds for suspension of a permit.
(E) Applicants shall be approved in accordance with the requirements of this section and the premises must be inspected and found to be in compliance with health, fire, and building codes and laws before a permit shall be issued.
(F) An applicant shall pay a non-refundable application of $100 at the time of filing an application under this section.
(G) All applicants shall be required to list in the application the names of any and all employees required to be licensed hereby to the extent that they are then known and to provide thereafter the names of the employees as available on an on-going basis.
(H) Application for a permit hereunder shall constitute a consent by the applicant to the provisions of this subchapter, and a waiver of objection to the exercise by the town of those powers and rights given to it hereby.
(1974 Code, § 18-3-8-5) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
Upon receipt of an application properly filed with the town and upon the payment of the non-refundable application fee, the town shall cause a check to be made of whether an applicant has been convicted of a specified criminal act within the periods set forth in § 153.091(A)(8) and whether there is proper compliance with Health, Fire and Building Codes and laws. A permit shall be granted or denied within 30 days from the date of its proper filing. The permit shall state on its face the name of the person or persons to whom it is granted, the expiration date and the address of the sexually oriented business, and it shall be posted in a conspicuous place at or near the entrance to the business.
(1974 Code, § 18-3-8-6) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
(A) The town shall deny the application for any of the following reasons:
(1) An applicant is under the age of 18 years;
(2) An applicant or his or her spouse is overdue on any payment owed to the town for taxes, fines or penalties assessed in relation to a sexually oriented business;
(3) An applicant is residing with a person who has been denied or had a permit to operate a sexually oriented business revoked under this subchapter within the preceding 12 months for any reason other than location;
(4) An applicant has failed to provide information required by this section or has falsely responded to any part of the application form;
(5) The premises to be used for the sexually oriented business have not been approved as complying with Town or State Health, Fire and Building Codes;
(6) An applicant is in violation of any other provision of the subchapter, including, but not limited to, the zoning locational requirements for a sexually oriented business, or any other statute, ordinance or court order;
(7) The application or permit fees required by this section have not been paid;
(8) An applicant has been convicted of a “specified criminal” act for which:
(a) Less than two years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is for a misdemeanor offense included within A.R.S. Title 13, Chs. 14, 32, 35 or 35.1, or crimes connected with another sexually oriented business; or
(b) Less than five years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is for a felony or for two or more misdemeanor offenses where the “specified criminal” acts are made criminal within A.R.S. Title 13, Chs. 14, 32, 35 or 35.1, or crimes connected with another sexually oriented business.
(9) The fact a conviction is being appealed shall have no effect on disqualification of the applicant. An applicant convicted of any of the above “specified criminal” acts may qualify for a sexually oriented business permit only when the time period required hereby has elapsed; and/or
(10) An applicant knowingly has in his or her employ an employee who does not have a valid license as required in § 153.099.
(B) If the town denies an application, it shall notify the applicant of the denial and the reason(s) for the same. If a person applies for a particular location within a period of 12 months from the date of denial of a previous application, and there has been no intervening change of circumstances which could reasonably be expected to lead to a different decision, the application shall be denied.
(1974 Code, § 18-3-8-7) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
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