(A) Purpose and intent. It is the purpose of the regulations of this section to regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the town, and to establish reasonable and uniform regulations to prevent the continued deleterious locating and concentration of sexually oriented businesses within the town. The provisions of this section 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 or effect of this section 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 or effect of this section to condone or legitimize any use or act which is otherwise prohibited or punishable by law.
(B) Findings of fact.
(1) There are no sexually oriented businesses in the town. However, should such a business open, it is in the interests of the health, safety, and welfare of the patrons of such businesses, as well as the citizens of the town, to provide certain minimum standards and regulations for sexually oriented businesses, as well as the operators and employees of such businesses.
(2) Sexually oriented businesses generate secondary effects that are detrimental to the public health, safety, and welfare. Additionally, sexually oriented businesses are frequently used for unlawful sexual activities, including public sexual indecency, prostitution, and sexual encounters of a casual nature. Such businesses are of particular concern to the community when they are located in close proximity to each other, or close to schools, churches, or parks and playgrounds.
(3) The concern over sexually transmitted diseases is a legitimate health concern of the town which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of our citizens.
(4) Live entertainment presented by some sexually oriented businesses involves a considerable amount of bodily contact between patrons and semi-nude and nude employees and dancers, including physical contact, such as hugging, kissing, and sexual fondling of employees and patrons. Many sexually oriented businesses have “couch” or “straddle” dancing, and in these “dances,” employees sometimes do such things as sit in a patron’s lap, place their breasts against the patron’s face while physical contact is maintained, and gyrate in such a manner as to simulate sexual intercourse. Such behavior can lead to prostitution. The Town Council recognizes that preventing prostitution and the spread of sexually transmitted diseases are clearly within its police powers: Southeastern Promotions, Inc. v. Conrad, 341 F. Supp. 465, 477 (E.D. Tenn. 1972), rev’d on other grounds, 420 U.S. 546 (1975). The Town Council believes that prohibiting physical contact between performers and patrons at a sexually oriented business establishment is a reasonable and effective means of addressing these legitimate governmental interests.
(5) Licensing is a legitimate and reasonable means of accountability to ensure that operators of sexually oriented businesses comply with reasonable regulations, to facilitate the enforcement of legitimate location and distancing requirements, and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation.
(6) The location of sexually oriented businesses close to residential areas diminishes property values and leads to conditions that give rise to crime in residential neighborhoods. Many studies performed in other communities indicate conclusively that property crimes and sexual crimes increase significantly in neighborhoods in which a sexually oriented business is located.
(7) It is not the intent of this section to suppress any speech activities protected by the First Amendment or to place any impermissible burden on any constitutionally-protected expression or expressive conduct by the enactment or enforcement of this chapter. Rather, it is the intent of the Town Council to enact a “content neutral regulation” that addresses the secondary effects of sexually oriented businesses.
(C) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ADULT ARCADE. Any place to which the public is permitted or invited wherein coin-operated, slug-operated, or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to one or more 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 RETAIL STORE, or ADULT VIDEO STORE. A commercial establishment which excludes any person by virtue of age from all or part of the premises generally held opened to the public where products or equipment distinguished or characterized by a predominant emphasis or simulation of “specified sexual activities” or “specified anatomical areas” are sold, rented, or displayed therein (unless the business complies with the requirements of division (c) of this definition), or which has as one of its principal business purposes, the sale or rental of any form, for consideration, one or more of the following:
(a) Books, magazines, periodicals, or other printed matter, or photographs, films, motion picture, video cassettes or video reproductions, slides, or other visual representations which depict or describe “specified sexual activities” or “specified anatomical areas.”
(b) Instruments, devices, parapher- nalia, or clothing which are designed for use in connection with “specified sexual activities,” excluding condoms and other birth control and disease prevention products. A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing “specified sexual activities” or “specified anatomical areas” and still be categorized as an adult bookstore or adult video store. Such other business purposes will not serve to exempt such commercial establishment from being categorized as an adult bookstore or adult video store so long as one of its principal business purposes is the offering for sale or rental, the specified materials which depict or describe “specified sexual activities or “specified anatomical areas.”
(c) ADULT BOOKSTORE, ADULT RETAIL STORE, or ADULT VIDEO STORE does not mean any establishment which displays, rents, or sells sexually-explicit materials in an enclosed room equal to less than 10% of the business’s total square footage, and which prohibits anyone under 18 years of age from entering the room.
(d) PRINCIPAL BUSINESS PURPOSE, as used in this definition, means that more than 25% of the “stock in trade” of the business is devoted to the display, rent, or sale of items, products, or equipment distinguished or characterized by a predominant emphasis on, or simulation of, “specified sexual activities” or “specified anatomical areas.”
(e) STOCK IN TRADE for purposes of this definition shall mean the greater of:
1. The retail dollar value of all items, products, or equipment readily available for purchase, rental, viewing, or use by patrons of the establishment, excluding material located in any storeroom or other portion of the premises not regularly open to patrons; or
2. The total volume of shelf space and display area.
ADULT CABARET. A nightclub, bar, restaurant, or similar commercial eating or drinking establishment, which regularly features:
(a) Persons who appear in a state of nudity;
(b) Live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities;” and/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.”
ADULT CAR WASH. A car wash where some or all of the employees are semi-nude or nude and/or where “specified sexual activities” occur or “specified anatomical areas” are exhibited.
ADULT MOTEL.
(a) 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, 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 may have a sign visible from the public right-of-way which advertises the availability of these types of photographic reproductions;
2. Routinely offers a sleeping room for rent for a period of time that is less than eight hours; or
3. Routinely allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than eight hours.
(b) Evidence that a sleeping room in a hotel, motel, or a similar commercial establishment has been rented and vacated two or more times in a period of time that is less than eight hours creates a rebuttable presumption that the establishment is an ADULT MOTEL as that term is defined in this section.
ADULT MOTION PICTURE THEATER. A commercial motion picture theater, one of whose principal business purposes is, for any form of consideration, to regularly show 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.”
ADULT THEATER. A commercial theater, concert hall, auditorium, or similar commercial establishment, one of whose principal business purposes is to regularly feature persons who appear in a state of nudity, or which features live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities.”
CERTIFICATE OF NONCONFORMITY. A certificate issued by the Planning/Zoning Department to any sexually oriented business which is operating at the time of the enactment of this chapter, and is not in compliance with one or more of its provisions.
DANCER. An employee of a sexually oriented business who entertains patrons through expressive forms of dance and/or movement.
EMPLOYEE. An individual working and performing services for any sexually oriented business, including any independent contractor who provides services on behalf of any sexually oriented business to the patrons of such business.
ESTABLISHED or ESTABLISHMENT. As used in this section, means and includes any of the following:
(a) The opening or commencement of any sexually oriented business as a new business;
(b) The conversion of an existing business, whether or not a sexually oriented business, to a sexually oriented business;
(c) The addition of any sexually oriented business to any other existing sexually oriented business; or
(d) The relocation of any sexually oriented business.
HEALTH CLUB. As used in this section, means a health club where some or all of the employees are nude or semi-nude, or in which “specified sexual activities” occur or “specified anatomical activities” are exhibited.
LICENSEE. A person in whose name a sexually oriented business regulatory license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a sexually oriented business regulatory license.
LIVE ENTERTAINMENT. For purposes of this section, means a person who appears nude, semi-nude, or a performance which is characterized by the exposure of “specified anatomical areas” or “specified sexual activities.”
NUDE MODEL STUDIO. Any place where a person appears in a state of nudity or displays “specified anatomical areas” and is observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any other form of consideration, and such place is not subject to an exemption pursuant to any provision herein.
NUDE, NUDITY, or STATE OF NUDITY.
(a) The appearance, real or simulated, of a bare human buttock, anus, male genitals, female genitals, or the areola or nipple of the female breast; or
(b) A state of dress which fails to completely cover a human buttocks, anus, male or female genitals, pubic region, or areola or nipple of the female breast.
OPERATE or CAUSES TO BE OPERATED. As used in the section, means to cause to function or to put or keep in operation.
OPERATOR. Any person on the premises of a sexually oriented business who is authorized to exercise overall operational control of the business, or who causes to function or who puts or keeps in operation the business. A person may be found to be operating or causing to be operated a sexually oriented business whether or not the person is an owner, part owner, or licensee of the business.
PATRON. Any person who pays a sexually oriented business any form of consideration for services provided to him or her by the sexually oriented business.
PERSON. An individual, proprietorship, partnership, corporation, association, or other legal entity.
SEMI-NUDE or SEMI-NUDITY. A state of dress in which clothing covers no more than the genitals of a man, or the pubic region and areolae of the breasts of a woman.
SEXUALLY ORIENTED BUSINESS. Includes an adult arcade, adult bookstore, adult retail store or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, nude model studio, or any other business, such as a car wash or a health club, which offers, for consideration, materials or services characterized as depicting “specified sexual activities” or “specified anatomical areas”, or whose employees perform services in a state of nudity or semi-nudity.
SEXUALLY ORIENTED BUSINESS REGULATORY LICENSE. A special annual operating license necessary for a sexually oriented business to do business in the town. Such license is in addition to a county business license, and is issued by the Planning/Zoning Department.
SPECIFIED ANATOMICAL AREAS. The male genitals in a state of sexual arousal and/or the vulva or more intimate parts of the female genitals.
SPECIFIED SEXUAL ACTIVITIES. Includes any of the following:
(a) The fondling or other erotic 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; and/or
(d) Excretory functions as part of or in connection with any of the activities set forth in divisions (a) through (c) above.
SUBSTANTIAL ENLARGEMENT (OF A SEXUALLY ORIENTED BUSINESS). The increase in floor areas occupied by the business by more than 25%, as the floor areas exist on the date the original zoning permit was obtained.
TRANSFER OF OWNERSHIP OR CONTROL (OF A SEXUALLY ORIENTED BUSINESS). Includes 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; and/or
(c) The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
VIEWING ROOM. The room, booth, or area where a patron of a sexually oriented business would ordinarily be positioned while watching a film, video cassette, video reproduction, or live production.
(D) Permits and licenses; application.
(1) Every person engaged or intending to engage in a sexually oriented business is required to obtain a sexually oriented business regulatory license.
(2) A person commits a misdemeanor if he or she operates a sexually oriented business without a valid zoning permit and business license and sexually oriented business regulatory license issued by the town.
(3) An application for a zoning permit and/or a sexually oriented business regulatory license must be made on a form provided by the Planning/Zoning Department. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch of diagram need not be prepared by an architect, engineer, or surveyor, but 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.
(4) The applicant must be qualified according to the provisions of division (E) below and the premises must be inspected and found to be in compliance with applicable state laws by the State Department of Health and Environmental Control (DHEC) and the Building Official.
(5) If an entity wishing to operate a sexually oriented business is an individual, he or she must sign the application for a sexually oriented business regulatory license as applicant. If an entity wishing to operate a sexually oriented business is other than an individual, each individual who has a 10% or greater interest in the business must sign the application for a sexually oriented business regulatory license as an applicant.
(6) The fact that a person possesses other types of state or town permits and/or licenses does not exempt him or her from the requirements to obtain a sexually oriented business regulatory license.
(7) All licenses granted pursuant to this section shall be for a term of one year. Said term shall commence on January 1 of each year and terminate upon December 31 of the same year. Applications for a license filed at any other time during the year shall be treated the same as if they were filed January 1 of that year and shall terminate on December 31 of that same year, and no proration shall be permitted.
(8) The completed application shall contain the following information and shall be accompanied by the following documents:
(a) If the applicant is:
1. An individual, the individual shall state his or her legal name and any aliases and shall submit satisfactory proof that he or she is 18 years of age;
2. 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;
3. A corporation, the corporation shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing under the statutes of the state, or in the case of a foreign corporation, evidence that it is currently authorized to do business in the state, the names and capacity of all officers, directors, and principal owners, and the name of the registered corporate agent and the address of the registered office for service of process; or
4. A limited liability company shall state its complete name, the date of filing of the articles of organization and operating agreement, and the names of all managers and members.
(b) Whether the applicant or any other individual listed under division (D)(8)(a) above had worked under or has had a previous sexually oriented business regulatory license under this section or other adult business or adult entertainment ordinance from another state, city or town denied, suspended, or revoked, including the name and location of the adult business for which the permit was denied, suspended, or revoked, as well as the date of the denial, suspension, or revocation.
(c) Whether the applicant or any other individual listed under division (D)(8)(a) above holds any other licenses under this section or other similar adult business ordinance from another city, town, or state and, if so, the names and locations of such other permitted business.
(d) The location of the proposed sexually oriented business, including a legal description of the property, street address, and telephone number(s), if any.
(e) Proof of the applicant’s right to possession of the premises wherein the sexually oriented business is proposed to be conducted.
(f) The applicant’s or any other individual’s listed, pursuant to division (D)(8)(a) above, mailing address and residential address.
(g) A photocopy of the driver’s license or other government issued identification card for the individuals listed in division (D)(8)(a) above.
(9) If the applicant is an individual, he or she must sign the application for a license. If the applicant is a corporation, it must be signed by the president or vice president, attested to by the secretary or assistant secretary, and each individual having a 10% or greater interest in the corporation. If the applicant is a general or limited partnership, it must be signed by a general partner. If the applicant is a limited liability company, it must be signed by the manager and each individual having a 10% or greater interest in the company.
(10) If an omission or error is discovered by the Zoning Administrator, the application will be returned to the applicant for completion or correction without further action by the Zoning Administrator . Any application rejected due to an omission or error shall be re-filed only when the omission or error has been remedied. For the purposes of this section, the date the Zoning Administrator accepts an application which is complete shall be the date the application is deemed to be filed with the Zoning Administrator .
(11) In the event that the Zoning Administrator determines that the applicant has improperly completed the application, he or she shall promptly notify the applicant of such fact and allow the applicant 30 days to properly complete the application. The time period for granting or denying a license shall be stayed during the period in which the applicant is allowed an opportunity to properly complete the application.
(12) Applicants for a license 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, by supplementing the application on file with the Zoning Administrator , shall be grounds for suspension or revocation of a sexually oriented business regulatory license.
(E) Approval or denial of license.
(1) The Zoning Administrator shall approve or deny the issuance of a sexually oriented business regulatory license to an applicant within 30 days after receipt of a completed application. The Zoning Administrator shall deny a license if:
(a) The applicant (if a natural person) is under the age of 18 years;
(b) The applicant has made a false statement upon the application or has given false information in connection with an application;
(c) The applicant or any holder of any class of stock, or a director, officer, partner, or principal of the applicant has had an adult business license revoked or suspended anywhere within the state within one year prior to the application;
(d) The applicant has operated an adult business which has determined to be a public nuisance under state law or this code within one year prior to the application;
(e) A corporate applicant is not in good standing or authorized to do business in the state;
(f) The applicant is overdue in the payment to the town of taxes, fees, fines, or penalties assessed against him, her, or it or imposed against him, her, or it in relation to an adult business;
(g) The applicant has not obtained the required sales tax license; or
(h) The applicant of the sexually oriented business is in violation of, or is not in compliance with, any of the provisions of this section.
(2) In the event that the Zoning Administrator denies a license, he or she shall make written findings of fact stating the reasons for the denial, and a copy of such decision shall be sent by first class mail to the address shown in the application. An applicant shall have the right to a hearing before the Board of Zoning Appeals as set forth in division (J) below. A written request for such hearing shall be made to the Zoning Administrator within ten days of the date of the denial of the license by the Zoning Administrator. This hearing shall be held within 60 days from the date a timely request for hearing is received. If no such hearing is held or if no order is issued within the time set forth below following such hearing, the application shall be deemed approved.
(a) At the hearing referred to above, the Board of Zoning Appeals shall hear such statements and consider such evidence as the Planning staff, enforcement officers, the applicant or other party in interest, or any other witness shall offer which is relevant to the denial of the license application by the Zoning Administrator.
(b) If the Board of Zoning Appeals determines that the applicant is ineligible for a license per division (E)(1) above, it shall issue an order sustaining the Zoning Administrator’s denial of the application, within five days after the hearing is concluded, which shall include findings of fact. A copy of the order shall be mailed to the applicant at the address supplied on the application.
(c) The order of the Board of Zoning Appeals made pursuant to this section shall be a final decision and may be appealed to the Circuit Court pursuant to the provisions of the state’s Local Government Planning Act, as may be amended from time to time. Failure of an applicant to timely follow the limits specified above constitutes a waiver by him, her, or it of any right he, she, or it may otherwise have to contest denial of his, her, or its license application.
(3) If any town official or department fails to render a timely decision pursuant to the terms of this section then said official or department shall be deemed to have approved or consented to the issuance of the requested license.
(4) The sexually oriented business regulatory license, if granted, shall state of its face the names of the persons to whom it is granted, the expiration date, and the address of the sexually oriented business. The sexually oriented business regulatory license shall be posted in a conspicuous place at or near the entrance of the sexually oriented business so that it may be easily read at any time.
(F) Temporary permits.
(1) An applicant may apply for a temporary permit if a sexually oriented business regulatory license has been denied by the Zoning Administrator, an appeal has been denied by the Board of Zoning Appeals, and an appeal or other legal challenge is pending in the Circuit Court.
(2) The temporary permit application shall include all information required by the sexually oriented business regulatory ordinance.
(3) The temporary permit application shall also include written evidence of the pendency of the appeal to the Circuit Court.
(4) The completeness of the temporary permit application will be determined within five days of its submittal.
(5) After submittal of a complete application, the Zoning Administrator shall issue the temporary permit within five days.
(6) Upon issuance, the applicant may commence its sexually oriented business adult use as set forth in the permit, pending compliance with other applicable non-sexually oriented business laws, rules, and regulations.
(7) In the event that denial of a sexually oriented business regulatory license is upheld by the courts, an investment or construction undertaken during the time of temporary permit must be removed and the business ceased. The applicant shall not have the right to continue with any business or recoup any investment from the town. Revocation of the permit shall not be considered a taking.
(G) Inspection.
(1) An applicant or licensee shall permit representatives of the Sheriff’s Office, State Department of Health and Environmental Control (DHEC), local Fire Department, Planning/Zoning Department, Legal Department, and/or Building Inspections Department to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law, at any time it is occupied open for business.
(2) The licensee (or the licensee’s agent or employee) of a sexually oriented business commits a misdemeanor if he or she refuses such lawful inspection of the premises at any time it is occupied or open for business. Such refusal is also grounds for suspension or revocation of a sexually oriented business regulatory license.
(H) Expiration of sexually oriented business regulatory license.
(1) A sexually oriented business regulatory license must be renewed each year, at least two weeks prior to the expiration date.
(2) If, after denying the issuance or renewal of a sexually oriented business regulatory license, the Zoning Administrator finds that the basis for denial of the license has been corrected or abated, the applicant may then be granted a sexually oriented business regulatory license.
(I) Suspension of sexually oriented business regulatory license. The Zoning Administrator shall suspend a sexually oriented business regulatory license for a period not to exceed 30 days if the Zoning Administrator determines that a licensee or an employee of a licensee:
(1) Has violated or is not in compliance with any provision of this section;
(2) Has refused to allow an inspection of the sexually oriented business premises as authorized by this section; or
(3) Has knowingly permitted gambling by any person on the sexually oriented business premises.
(J) Revocation of sexually oriented business regulatory license.
(1) The Zoning Administrator shall revoke a sexually oriented business regulatory license if a cause of suspension in division (H) above occurs and the sexually oriented business regulatory license has previously been suspended within the preceding 12 months.
(2) The Zoning Administrator shall revoke a sexually oriented business regulatory license if the Zoning Administrator determines that:
(a) The licensee gave false or misleading information in the material submitted to the Zoning or Business License Departments during the application process;
(b) The licensee or an employee knowingly operated the sexually oriented business during a period of time when the licensee’s sexually oriented business regulatory license was suspended; or
(c) A licensee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, or masturbation to occur in or on the permitted and/or licensed premises.
(3) If subsequent to revocation, the Zoning Administrator finds that the basis for the revocation of the sexually oriented business regulatory license has been corrected or abated, the applicant may be granted a sexually oriented business regulatory license.
(K) Appeal of designation, or suspension or revocation of sexually oriented business regulatory license. A sexually oriented business or a licensee may appeal, in writing, the Zoning Administrator’s designation of a business as a sexually oriented business, or the suspension or revocation of a sexually oriented business regulatory license to the Board of Zoning Appeals in accordance with the procedures of § 153.052.
(L) Transfer of sexually oriented business regulatory license. Each sexually oriented business regulatory license issued hereunder is non- transferable. A licensee shall not transfer a sexually oriented business regulatory license to another sexually oriented business, nor shall a licensee operate a sexually oriented business under the authority of a sexually oriented business regulatory license at any place other than the address designated in the application.
(M) Location restriction.
(1) A person commits a misdemeanor if he or she operates or causes to be operated a sexually oriented business outside of the zoning district where the use is allowed. (See § 153.110.)
(2) A person commits a misdemeanor if he or she operates or causes to be operated a sexually oriented business within 1,000 feet of:
(a) A facility for religious assembly;
(b) A public or private school;
(c) A boundary of any residential zoning district;
(d) A public park adjacent to any residential zoning district; and
(e) The property line of a lot occupied by a residential use.
(3) A person commits a misdemeanor if he or she causes or allow the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or portion thereof, or the substantial enlargement of floor areas of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business without the issuance of sexually oriented business regulatory license for each use and every expansion.
(4) For the purpose of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a facility for religious assembly, a public or private school, to the nearest boundary of any residential zoning district, a public park adjacent to any residential zoning district, or the nearest property line of a lot occupied by a residential use.
(5) No expansion of the uses or physical structure of a building housing a sexually oriented business shall occur without the issuance of a sexually oriented business regulatory license for each use and expansion.
(N) Regulation of adult car washes. Nude or semi-nude employees of adult car washes must not be able to be seen from any public right-of-way or adjoining parcels. Necessary fencing and/or buffers, as set forth in the relevant sections of this chapter, must be placed around the establishment in order to ensure that patrons can only view the employees once the patrons are inside the establishment.
(O) No fondling or caressing. It is a misdemeanor for any nude or semi-nude employee or dancer to fondle or caress any patron, and no patron shall fondle or caress any nude or semi-nude employee or dancer.
(P) Nonconforming sexually oriented business.
(1) Any sexually oriented business operating on the date the original sexually oriented business regulations were enacted by the Town Council, that is found to be in violation of any of the location provisions of division (L) above, shall be deemed a nonconforming use, and upon written notification by the Zoning Administrator, must obtain a certificate of nonconformity from the Planning/Zoning Department. A certified nonconforming use will be permitted to continue to operate for a period not to exceed one year before being licensed.
(2) If the sexually oriented business does not, within six months of notification by the Zoning Administrator, obtain a certificate of nonconformity, then the business will be deemed in violation of the chapter, and will not be permitted to continue to operate more than six months after the date that the regulations of this section first became effective.
(3) No nonconforming use shall be increased, enlarged, extended, or altered except that the use may be changed to a conforming use.
(4) If two or more sexually oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at that particular location is the conforming use and the later-established business is the nonconforming use.
(5) Any sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use due to the subsequent location of a church, public or private elementary or secondary school, public park, residential district, or a residential lot within 1,000 feet of the sexually oriented business. This provision applies only to the renewal of a valid sexually oriented business regulatory license, and does not apply when an application for a sexually oriented business regulatory license is submitted after a sexually oriented business regulatory license has expired or has been revoked.
(Q) Adult motels prohibited. A person in control of a sleeping room in a hotel, motel, or similar commercial establishment, commits a misdemeanor if he or she rents or sub-rents a sleeping room to a person, and then, within eight hours from the time the room is rented, rents or sub-rents the same sleeping room again, as such creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this section. For purposes of this section, RENT or SUB-RENT means the act of permitting a room to be occupied for any form of consideration.
(R) Six-foot distance rule.
(1) No nude or semi-nude employee or nude or semi-nude dancer shall perform live entertainment within six feet of any patron, nor shall any patron experience live entertainment within six feet of any nude or semi-nude employee or nude or semi-nude dancer, in a sexually oriented business. In the case of adult car washes, the six-foot distance rule necessitates that patrons get out of their vehicles, and watch the vehicles being washed no less than six feet away from the nude or semi-nude employees.
(2) Sexually oriented businesses with live entertainment shall conspicuously post a sign that advises patrons that they must be at least six feet away from nude or semi-nude dancers at all times.
(S) Gratuities.
(1) No patrons shall personally pay or personally give a gratuity to any nude or semi-nude dancer or nude or semi-nude, employee in a sexually oriented business establishment. Gratuities can be placed in containers at a location away from the nude or semi-nude dancer, or handed to clothed employees. In the alternative sexually oriented businesses could charge a cover charge, and prohibit all gratuities.
(2) No nude or semi-nude dancer or nude or semi-nude employee a sexually oriented business shall solicit or accept any pay or gratuity personally from a patron.
(3) Sexually oriented businesses with nude or semi-nude dancers or nude or semi-nude employees shall conspicuously post a sign that advises patrons that gratuities to be paid personally to nude or semi-nude dancers and nude or semi-nude employees are prohibited.
(T) Additional regulations pertaining to the exhibition of sexually explicit films and videos, adult arcades, and health clubs. A person who operated or causes to be operated a sexually oriented business, as defined in this section, which exhibits on the premises in a viewing room of less than 150 square feet of floor space, a film, video cassette, or other video reproduction which depicts specified sexual activities or specified anatomical areas, or which allows specified sexual activities or specified anatomical areas, or which allows specified sexual activities to occur in a separate room in the establishment shall comply with the following requirements:
(1) Upon application for a sexually oriented business regulatory license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager’s stations and the location of all overhead lighting fixtures, and designating any portion of the premises in which patrons will not be permitted. A manager’s station may not exceed 32 square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer’s or architect’s blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object, and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches. The Zoning Administrator may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.
(2) The application shall be sworn to be true and correct by the applicant.
(3) No alteration in the configuration or location of a manager’s station may be made without the prior approval of the Zoning Administrator.
(4) It is the duty of the owners and operator of the premises to ensure that at least one employee is on duty and situated in each manager’s station at all times that any patron is present inside the premises.
(5) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager’s station of every area of 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 or more manager’s stations. The view required in this division must be by direct line of sight from the manager’s station.
(6) It shall be the duty of the owners and operator, and also the duty of any agents and employees present in the premises, to ensure that the view area specified in division (T)(5) above remains unobstructed by any doors, walls, merchandise, display racks, or other materials at all times and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to division (T)(1) above.
(7) No viewing room, nor any room or enclosed area in a health club that cannot be viewed from the manager’s station, may be occupied by more than one person at any time.
(8) In order to ensure that places to which patrons access are adequately illuminated, the premises shall be equipped with overhead lighting fixtures at an illumination at least one candle foot as measured at the floor level.
(9) It shall be the duty of the owners and operator, and also the duty of any agents and employees present in the premises, to ensure that the illumination described above is maintained at all times that any patron is present in the premises.
(10) A person having a duty under divisions (T)(1) through (T)(9) above commits a misdemeanor if he or she knowingly fails to fulfill that duty.
(U) Exemptions. It is a defense to prosecution under this section that a person appearing in a state of nudity did so in a modeling class operated:
(1) By a proprietary school licensed by the state; a college, junior college, or university supported entirely or partly by taxation.
(2) By 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.
(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.
(b) Where, in order to participate in a class, a student must enroll at least three days in advance of the class.
(c) Where no more than one nude model is on the premises at any one time.
(W) Severability. If any provision of this section or its application to any circumstance is held by a court of competent jurisdiction to be invalid for any reason, this holding does not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to this end, the provisions of this section are severable.
(Ord. 2012-06, § 6.4.18, passed 10-18-2012; Ord. 2013-02, passed 4-18-2013) Penalty, see § 153.999