(A) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly requires a different meaning.
ADULT AMUSEMENT OR ENTERTAINMENT. Amusement or entertainment that is distinguished or characterized by an emphasis on material depicting, describing or relating to specified sexual activities or specified anatomical areas, or which features topless dancers, exotic dancers, strippers, male or female impersonators or similar entertainment.
ADULT ARCADE. Any commercial establishment where, for any form of consideration, one or more still or motion picture projectors, slide projectors, videocassette players or similar machines, or other image-producing machines, for viewing by five or fewer persons each at any viewing, are used to show films, motion pictures, videocassettes, slides or other photographic, digital or electronic reproductions that are characterized by the depiction, simulation or description of specified sexual activities or specified anatomical areas.
ADULT BOOKSTORE, ADULT NOVELTY STORE or ADULT VIDEO STORE. A commercial establishment that devotes a significant or substantial portion of its stock-in-trade or interior floor space to, or has as one of its principal business purposes, the sale, rental or viewing, for any form of consideration, of:
(a) Any books, magazines, periodicals or other printed matter or photographs, films, motion pictures, videocassettes, slides or other visual representations characterized by the depiction or description of specified sexual activities or specified anatomical areas; or
(b) Any instruments, devices or items designed or intended for use with or in specified sexual activities.
ADULT CABARET. A nightclub, bar, restaurant, concert hall, auditorium or other commercial establishment which features persons who appear nude or in a state of nudity or semi-nudity; or live performances that are characterized by the exposure of specified anatomical areas or by the exhibition of specified sexual activities.
ADULT MOTEL. A hotel, motel or similar commercial establishment that offers accommodations to the public for any form of consideration and provides patrons with closed-circuit television transmission, films, motion pictures, video cassettes, slides or other photographic productions however produced that 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 that advertises the availability of this adult type of photographic reproductions.
ADULT MOTION PICTURE THEATER. A commercial establishment that is distinguished or characterized by showing of films, motion pictures, videocassettes, slides or similar photographic reproductions with an emphasis on depicting or describing specified sexual activities or specified anatomical areas that are regularly shown for any form of consideration.
COMMERCIAL ESTABLISHMENT. With respect to the regulation of sexually-oriented businesses, may have other principal business purposes that do not involve the depicting or describing of specified sexual activities or specified anatomical areas and still be categorized as a sexually-oriented business. Such other business purposes will not serve to exempt such commercial establishments from being categorized as a sexually-oriented business so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials that depict or describe specified sexual activities or specified anatomical areas. The term COMMERCIAL ESTABLISHMENT includes clubs, fraternal organizations, social organizations, civic organizations or other similar organizations with paid memberships.
ESTABLISHMENT OF A SEXUALLY-ORIENTED BUSINESS. Any of the following:
(a) The opening or commencement of any such business as a new business;
(b) The conversion of an existing business into a sexually-oriented business;
(c) The addition of a different sexually-oriented business to any other existing sexually-oriented business; or
(d) The relocation of a sexually-oriented business.
NUDE MODEL STUDIO. Any place where a person who appears in a state of nudity or displays specified anatomical areas is provided money or any form of consideration to be observed, sketched, drawn, painted, sculpted, photographed or similarly depicted by other persons.
NUDITY or STATE OF NUDITY.
(a) The appearance of human bare buttocks, anus, male genitals, female genitals, pubic region or the areola or nipple of the female breast; or
(b) A state of dress which fails to opaquely and fully cover human buttocks, anus, male or female genitals, pubic region or areola or nipple of the female breast.
PARK. Any public land that has been designated or used for any park, open space or recreational uses or activities including, but not limited to, a park, playground, nature trail, swimming pool, reservoir, athletic field, basketball court, tennis court, bike or pedestrian path, open space, wilderness area or similar land within the town.
PEEP BOOTH. A room, semi-enclosure or other similar area located within a licensed premises wherein a person may view representations of specified anatomical areas or specified sexual activities.
PHOTO STUDIO, ADULT. An establishment that, upon payment of a fee, provides photographic equipment and/or models for the purpose of photographing specified anatomical areas.
RELIGIOUS INSTITUTION. Any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities.
SEMI-NUDE or SEMI-NUDITY. A state of dress in which clothing covers no more than the genitals, pubic region and areola of the female breasts, as well as portions of the body covered by supporting straps or devices.
SEXUALLY-ORIENTED BUSINESS. An adult arcade, adult bookstore, adult novelty shop, adult video store, adult cabaret, adult motion picture theater or nude model studio. The term SEXUALLY-ORIENTED BUSINESS does not mean or include an establishment where a medical practitioner, psychologist, psychiatrist or similar professional licensed by the state engages in medically approved and recognized sexual therapy.
SPECIFIED ANATOMICAL AREAS. Any of the following:
(a) Less than completely and opaquely covered:
1. Human genitals, pubic region;
2. Buttocks, anus; or
3. Female breasts below a point immediately above the top of the areola.
(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;
(c) Masturbation, actual or simulated;
(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 of this definition.
THEATER, ADULT. A theater, concert hall, auditorium or similar commercial establishment that, for any form of consideration, regularly features persons who appear in a state of nudity or live performances characterized by specified sexual activities or by an emphasis on exposure of specified anatomical areas.
(B) Location.
(1) Sexually-oriented businesses shall be located only within the areas zoned B-A Business District and B-B Business District located within the town. It shall be unlawful to cause or permit the operation, establishment or maintenance of a sexually-oriented business outside of these areas.
(2) It shall be unlawful to cause or permit the operation, establishment or maintenance of a sexually-oriented business unless a special permit has been obtained pursuant to division (D) below and unless the use is in compliance with such approval and all applicable regulations of the town municipal code.
(3) No sexually-oriented business shall be established, operated or maintained within 600 feet of:
(a) Any school or platted tract or lot dedicated for school purposes;
(b) Any licensed day care facility;
(c) Any religious institution;
(d) Any public building;
(e) Any of the following existing dwellings:
1. Mobile home;
2. Modular home;
3. Multiple-family;
4. One-family; or
5. Two-family.
(f) Any park; or
(g) Another sexually-oriented business.
(4) The setback requirements set forth in divisions (B)(3)(e), (B)(3)(f) and (B)(3)(g) above for another sexually-oriented businesses shall be reduced to a distance of no less than 100 feet by the Board of Adjustment and Board of Trustees during the special permit process if the applicant presents sufficient evidence to the satisfaction of the approving agency that walls or vegetative screening shall be provided along the perimeter of the sexually-oriented business where needed to protect residents from undesirable views, lighting, noise or other off-site inconsistent land use characteristics of sexually-oriented businesses. Off-street parking areas and service areas for loading and unloading of other than passenger vehicles and storage and collection of trash and garbage shall also be screened.
(5) The distance between two sexually-oriented businesses shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of each business.
(6) The distance between a sexually-oriented business and any religious institution, school, public building, day care facility, existing dwelling or park shall be measured in a straight line, without regard to intervening structures or objects, from the nearest point 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 premises of a religious institution, school, public building, day care facility or existing dwelling, or the nearest boundary of an affected park.
(7) No more than one sexually-oriented business shall be established, operated or maintained within the same building, structure, premises or portion thereof.
(8) Any sexually-oriented business lawfully operating on the effective date of this ordinance that is in violation of division (B)(3) above will be permitted to continue for a period of one year from the effective date hereof.
(9) Notwithstanding the provisions of division (B)(7) above, the town may grant an extension of time during which a sexually-oriented business in violation of division (B)(3) above will be permitted to continue upon a showing that the owner of the business has not had a reasonable time to recover the initial financial investment in the business. No such extension of time shall be for a period greater than that reasonably necessary for the owner of the business to recover his or her initial financial investment in the business. A sexually-oriented business in violation of division (B)(3) above may continue during such extended period unless the business is sooner terminated for any reason or voluntarily discontinued for a period of 30 days or more. Such business shall not be enlarged, extended or altered; except that, the business may be brought into compliance with this division (B)(9).
(10) If two or more sexually-oriented businesses are within 600 feet of one another and otherwise in a permissible location, the sexually-oriented business that was first established and continually operating at the particular location will be deemed to be in compliance with division (B)(3) above and the later established business(es) will be deemed to be in violation of such division.
(11) A sexually-oriented business, which at the time it received its sexually-oriented business license was in compliance with the location requirements of division (B)(3) above, does not violate that subsection if, when the sexually-oriented business applies to renew its valid sexually-oriented business license, a school, church, public building, day care facility or dwelling is now located within 600 feet of the sexually-oriented business. This provision applies only to the renewal of a valid sexually-oriented business license and does not apply to an application for a sexually-oriented business license that is submitted as a result of the previous sexually-oriented business license expiring or being revoked.
(C) Sign and display requirements.
(1) In addition to any applicable requirements of this municipal code, sexually-oriented businesses shall comply with the sign and display requirements set forth in this section. In the event of conflict between this section and any other provisions of this municipal code, the restrictions set forth in this section shall apply and control.
(2) Signs for sexually-oriented businesses shall not contain photographs, silhouettes, drawings or pictorial representations of any type or manner. Such signs may contain only the name of the enterprise and a phrase denoting the type of sexually-oriented business by reference to the classifications set forth in this chapter, such as “adult arcade”, “adult bookstore” or “adult theater”.
(3) For any adult bookstore, adult novelty shop or adult video store, there shall be presented to the licensing officer with the application required pursuant to § 114.07(B) of this code of ordinances, a scaled floor plan showing the specific locations within the commercial establishment where the stock-in-trade describing or depicting specified sexual activities or specified anatomical areas, or designed or intended for use with or in specified sexual activities, will be displayed and sold. The plan shall also describe the method of display of such stock-in-trade.
(4) For any commercial establishment that is open for other business purposes to persons under the age of 21, the sexually-oriented business shall segregate such stock-in-trade into a separate and distinct area within the establishment that may be accessed only by persons over the age of 21, and where the stock-in-trade may not readily viewed by persons outside such area regardless of age. Alternatively, such stock-in-trade need not be segregated into a separate and distinct area if any matter describing or depicting specified sexual activities or specified anatomical areas is covered by an opaque material, such as an opaque magazine, book or video sleeve that prevents viewing of such matter by persons under the age of 21. It is the specific intent of this section to require that adult books, magazines, videos and novelty items, and any other adult materials displayed in the establishment, either be displayed only in areas not accessible to persons under the age of 21, or be displayed only after matter describing or depicting specified sexual activities or specified anatomical areas is first shielded from view by opaque covering.
(D) Special permit procedure.
(1) Special permit required. It shall be unlawful to cause or permit the operation, establishment or maintenance of a sexually-oriented business unless a special permit has been obtained pursuant to this section.
(2) Procedure. Whenever an applicant shall apply for a special permit, the following procedure shall be followed:
(a) The applicant shall file an application with the Town Clerk/Treasurer for a special permit. The application shall contain the following information:
1. Description of the lot on which the use is to be located;
2. The name and address of all persons having any legal or equitable interest in the property on which the use is to be located;
3. Description of the use for which the special permit is sought;
4. A statement describing the benefits of the proposed use, how that use will be compatible with surrounding uses and the impact the use will have relative to the criteria as set forth in division (D)(3) below; and
5. A statement describing by name and address the adjoining landowners.
(b) Within 30 days of receiving a complete application from the applicant, the Town Clerk/Treasurer will set a hearing date for the application before the Board of Adjustment and the Board of Trustees.
(c) The Town Clerk/Treasurer shall cause notices of the time, place and subject matter of the hearing to be published in a newspaper of general circulation within the town and to be posted on the property at least 15 days in advance of such hearings.
(d) After hearing the application, the Board of Adjustment shall make written findings of fact and a written recommendation to the Board of Trustees whether to grant or deny the application.
(e) Within 30 days after receiving the Board of Adjustment’s recommendations, the Board of Trustees shall hold a public hearing on the application for the special permit. The Board of Trustees shall consider the application, the findings of fact and recommendation of the Board of Adjustment, and any further evidence that may be offered, and shall grant or deny the permit in writing within 15 days of its hearing.
(3) Standards governing conditional uses. The following criteria shall be considered by the Board of Adjustment and the Board of Trustees when reviewing conditional use permits for sexually-oriented businesses:
(a) The proposed use would not be contrary to the general welfare and economic prosperity of the town or the immediate neighborhood;
(b) Such use will lend economic stability compatible with the character of any surrounding established areas;
(c) The use will not require a level of town facilities and services, including storm drainage facilities, sewage and water facilities, law enforcement and fire protection, greater than that available; and
(d) The external effects of the proposed use are controlled considering compatibility of land use; movement or congestion of traffic; the arrangement of signs and lights as to prevent the occurrence of a nuisance; landscaping and other similar features to prevent the occurrences of nuisances; landscaping and other similar features to prevent littering or accumulation of trash; and other factors deemed to affect public health, welfare, safety and convenience.
(4) Modifications and conditions. In considering conditional use permits for sexually-oriented businesses, the Board of Zoning and Adjustment and Board of Trustees shall consider and may impose modifications and conditions concerning, by way of illustration and not limitation, the following development features to the extent such modifications or conditions are necessary to ensure compliance with the criteria of division (D)(3) above:
(a) Size and location of the site;
(b) Internal traffic circulation and access to adjoining public streets;
(c) Location and amount of off-street parking;
(d) Walls and vegetative screening;
(e) Building and bulk location;
(f) Signs and lighting; and
(g) Noise and other environmental influences.
(Ord. 1-2009, passed 7-6-2009) Penalty, see § 156.999