(A) Purpose. It is the purpose of this chapter to regulate sexually oriented businesses in order to protect the public health, safety and welfare of citizens and visitors in the town and to establish reasonable and uniform regulations to prevent the deleterious effects of sexually oriented businesses within the town. The provisions of this chapter are intended to 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 or effect of this chapter to condone or legitimize the distribution of obscene material.
(B) Rationale. The following regulations were designed to address two distinct issues:
(1) The town desires to minimize the potential secondary impacts of sexually oriented businesses on identified sensitive uses, for example, residential districts, schools, churches, day care centers and the like;
(2) The town wants to provide an area where people can exercise their First Amendment right of expression without infringing upon the rights of others. In allowing these uses, the town has balanced its Constitutional obligations with the need to guarantee that the town's economy and quality of life are not impeded. The Light Industrial 1 Zoning District is the most appropriate place to allow sexually oriented businesses. This District was chosen for its lack of visibility from identified tourist corridors. Sexually oriented businesses have a negative affect on tourism. Tourism is a major part of our economy and the town cannot allow it to be diminished or adversely affected by any use.
(C) Findings. Based on evidence concerning the adverse secondary effects of adult uses on the community; on findings incorporated in the cases City of Renton v. Playtime Theaters. Inc., 475 US 41(1986), Young v. American Mini Theaters, Inc., 427 US 50 (1976), and Barnes v. Glenn Theater, Inc., 501 US 560 (1991); on studies in other communities, including but not limited to: Phoenix, Arizona; Tucson, Arizona; Saint Paul, Minnesota; Houston, Texas; Austin, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; 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); on a report on The Regulation of Adult Establishments in North Carolina (May 22, 1996); and findings from the 1997 Town of Kill Devil Hills Land Use Plan Survey questionnaire dealing with sexually oriented businesses, the Board of Commissioners find:
(1) Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities which are uncontrolled by the operators of the establishments. Without reasonable regulations, there are no mechanisms to make owners of sexually oriented businesses responsible for the activities that occur on or about their premises;
(2) Employees of sexually oriented businesses engage in higher incidents of illicit sexual behavior than employees of other commercial establishments;
(3) Sexual acts, including masturbation, oral and/or anal sex may occur at sexually oriented businesses, especially those which provide private or semi-private booths or cubicles for viewing films, videos or live sex shows;
(4) Offering and providing such space encourages such activities, which creates unhealthy conditions;
(5) Persons may frequent certain adult theaters, adult cabarets and other sexually oriented businesses for the purpose of engaging in sexual activities within the premises of such sexually oriented businesses;
(6) At least 50 communicable diseases are spread by activities occurring in sexually oriented businesses, including but not limited to syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella infections;
(7) Since 1981 there has been an increasing number of reported cases of AIDS caused by the human immunodeficiency virus infection (HIV) in the United States, in the State of North Carolina and in Dare County;
(8) The number of cases of early (less than one year) syphilis reported in the United States annually has risen, with 33,613 cases reported in 1982 and 68,953 reported in the United States in 1996-97;
(9) The number of cases of gonorrhea in the United States reported annually remains at a high level, with 392,848 cases being reported in 1995;
(10) According to the scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts;
(11) Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy and, in part, because of the unregulated nature of the activities, the failure of the owners and the operators of the facilities to self-regulate those activities and the failure of the owners and the operators to maintain their facilities;
(12) Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view adult-oriented films;
(13) Numerous studies and reports have demonstrated that the consumption of alcohol or alcoholic beverages at a sexually oriented business increases the potential for illicit sexual activity, for violence, for acts characterized as disturbing the peace and for other identified nuisances to occur;
(14) Studies have demonstrated that sexually oriented businesses are regional businesses and as such have a regional population that consists largely of adult males in their twenties, whose interests and activities are different from those of older adults and/or families;
(15) It has been documented in trade studies that small towns do not have sufficient target populations to support sexually oriented businesses;
(16) Studies have demonstrated that sexually oriented businesses in small towns, because of their small size and lack of depth to their commercial districts, raise the probability of substantial negative impacts of sexually oriented businesses upon residential areas of the town;
(17) The 1992 Kill Devil Hills Land Use Plan, Chapter 4, Section D, Economic and Community Development Issues, identifies tourism as the backbone of the Kill Devil Hills economy. Kill Devil Hills has encouraged the continued development of single-family residences designed to attract tourists to our area;
(18) In 1997, in an effort to identify local concerns over sexually oriented businesses, the town conducted a citizen questionnaire in conjunction with it's Land Use Plan Update, where a number of questions were asked pertaining to adult entertainment. Out of the 7,000 surveys distributed, 21.4% were returned. The survey asked three questions related to sexual oriented businesses and requested residents and property owners to answer with: strongly agree, agree, disagree, strongly disagree or not sure. The questions were as follows:
(a) The presence of adult entertainment would enhance the vacation/resort attraction of the town for vacationers;
(b) The presence of adult entertainments would negatively influence my decision to buy a vacation cottage or home in the town if I were in the market to purchase one;
(c) The presence of adult entertainment establishments would negatively influence my decision to vacation in a resort area.
(19) Responses to the questions were as follows:
(a) 79.8% of the respondents disagreed or strongly disagreed that adult entertainment "would enhance the vacation/resort attraction of Kill Devil Hills;"
(b) 73.3% of the respondents agreed or strongly agreed that adult entertainment "would negatively influence my decision to buy a vacation cottage or home in Kill Devil Hills if I were in the market to purchase one;"
(c) 67.1% of the respondents agreed or strongly agreed that adult entertainment "would negatively influence my decision to vacation in a resort area."
(20) The results of the 1997 questionnaire on growth and development have lead the Board of Commissioners to conclude that the location of adult entertainment businesses with Kill Devil Hills is of concern to property owners and residents and would affect the town's ability to attract tourists and other single-family residents into our area.
(21) The finding noted in subsections (1) through (20) of this division, raise substantial governmental concerns;
(22) Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect substantial governmental concerns;
(23) A reasonable licensing procedure is an appropriate mechanism to regulate the owners and operators of sexually oriented businesses and the operation of such businesses. Further, such a licensing procedure will place incentives on owners and operators to insure that sexually oriented businesses are run in a manner consistent with the health, safety and welfare of their patrons and employees and the citizens and visitors of the town. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein;
(24) Requiring licensees of sexually oriented businesses and keeping information regarding current employees and past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments;
(25) The disclosure of certain information by those persons responsible for the day-to-day operation and maintenance of the sexually oriented business (which is substantially related to the significant governmental interest in the operation of such uses) will aid in preventing the spread of sexually transmitted diseases;
(26) It is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain employees who may engage in the conduct which this chapter is designed to prevent or who are likely to be witnesses to such activity;
(27) An applicant for a sexually oriented business license who has been convicted of a sexually related crime is a person who is likely to engage in conduct in contravention of federal and state law and this chapter;
(28) The barring of such individuals from the management of adult oriented businesses serves as a deterrent to and prevents conduct which leads to the transmission of sexually transmitted diseases;
(29) Establishing location criteria to keep sexually oriented businesses away from sensitive uses, such as residential districts, schools, day care centers and the like, reduces the potential for the identified secondary harms to be felt by a sensitive use;
(30) Establishing additional lighting requirements for the interior and exterior portions of a sexually oriented business reduces the potential for illicit sexual activity or criminal activities occurring on or near the premises of a sexually oriented businesses;
(31) Establishing a prohibition on employing minors or allowing minors within the premises reduces the potential for the exploitation of such minors by a sexually oriented business;
(32) Requiring internal design configuration standards and regulating the location of manager stations allows the operators to observe and police their own patrons and reduces the potential for illicit sexual activity or criminal activities occurring at a sexually oriented business;
(33) The general welfare, health and safety of the citizens and visitors of the town will be promoted by the enactment of these regulations.
(Ord. 99-02, passed 2-8-99)