Section
113.01 Purpose and findings
113.02 Definitions
113.03 Adult uses enumerated
113.04 Limitations on adult uses
113.05 Measurement of distance
113.06 License requirements
113.07 Issuance and term of license
113.08 Suspension or revocation of license
113.09 Exterior display
113.10 Display of license
113.11 Employment of persons under age of 18 prohibited
113.12 Illegal activities on premises
113.99 Penalty
(A) Purpose. It is the purpose of this chapter to regulate sexually oriented adult businesses in order to promote the health, safety, morals and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of adult businesses within the city. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials. Similarly, it is neither 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. This chapter does not apply to theaters, performing arts centers, civic centers and dinner theaters where live dance, ballet, music and dramatic performances of serious artistic merit are offered on a regular basis and in which the predominant business or attraction is not the offering of entertainment which is intended for the sexual interests or titration of customers, and where the establishment is not distinguished by an emphasis on or the advertising or promotion of nude or semi-nude performances. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene material.
(B) Finding. Based on evidence of the adverse secondary effects of sexually oriented adult uses, presented in hearings and in reports made available to the city, and on findings incorporated in the cases of City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); Pap’s AM. v. City of Erie, 529 U.S. 277 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. LaRue, 409 U.S. 109 (1972); Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003) (and cases cited therein); Wise Enterprises, Inc. v. Unified Gov’t of Athens-Clarke County, Georgia, 217 F.3d 1360 (11th Cir. 2000); see BZAPS, Inc. v. City of Mankato, 268 F.3d 603 (8th Cir. 2001); Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F.3d 993 (11th Cir. 1998); Artistic Entm’t, Inc. v. City of Warner Robins, 223 F.3d 1306 (11th Cir. 2000); Schultz v. City of Cumberland, 26 F.Supp.2d 1128 (W.D. Wise. 1998), affd in part, rev’d in part, 228 F.3d 831 (7th Cir. 2000); See Gary v. City of Warner Robins, Georgia, 311 F.3d 1334 (11th Cir. 2002); Blue Canary Corp. v. City of Milwaukee, 270 F.3d 1156 (7th Cir. 2001); Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. of California, 99 Cal. App. 4th 880 (Cal. Ct. App. 2002); Matney v. County of Kenosha, 86 F.3d 692 (7th Cir. 1996); LLEH, Inc. v. Wichita County, 289 F.3d 358 (5th Cir. 2002); Berg v. Health & Hospital Corp., 865 F.2d 797 (1989); DiMa Corp. v. Town of Hallie, 185 F.3d 823 (1999); Entertainment Concepts v. Maciejewski, 631 F.2d 497 (1980); Genusa v. City of Peoria, 619 F.2d 1203 (1980); Graff v. City of Chicago, 9 F.3d 1309 (1993); North Avenue Novelties, Inc. v. City of Chicago, 88 F.3d 441 (1996); Chulchian v. City of Indianapolis, 633 F.2d 27 (7th Cir. 1980); United States v. Sturman, 49 F.3d 1275 (7th Cir. 1995); County of Cook v. Renaissance Arcade and Bookstore, 122 Ill. 2d 123 (1988) (including cases cited therein); and other cases; and on reports of secondary effects occurring in and around sexually oriented adult businesses, including, but not limited to, Phoenix, Arizona - 1979; Minneapolis, Minnesota - 1980; Houston, Texas - 1997; Indianapolis, Indiana - 1984; Amarillo, Texas - 1977; Garden Grove, California - 1991; Los Angeles, California - 1977; St. Cloud, Minnesota - 1994; Whittier, California - 1978; Austin, Texas - 1986; Seattle, Washington - 1989; Oklahoma City, Oklahoma - 1986; Police Reports, Gary, Indiana - 2000; Dallas, Texas - 1997; St. Croix City, Wisconsin - 1993; Bellevue, Washington, - 1998; Newport News, Virginia - 1996; New York Times Square study - 1994; and also on findings from the Report of the Attorney General’s Working Group on the Regulation of Adult Uses (June 6, 1989, State of Minnesota), the city finds:
(1) Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, illicit sex acts, potential spread of sexually transmitted diseases, lewdness, public indecency, illegal drug use and drug trafficking, negative impacts on property values, urban blight, pornographic litter and sexual assault and exploitation;
(2) Sexual acts, including masturbation, oral and anal sex, occur at unregulated sexually oriented businesses, especially those which provide private or semi-private rooms, booths or cubicles for view films, videos or live sexually explicit shows;
(3) The consumption of alcoholic beverages on the premises of sexually oriented businesses exacerbates the deleterious secondary effects of such businesses; and
(4) Each of the foregoing negative secondary effects constitutes a harm which the city has a substantial government interest in preventing and/or abating.
(Ord. 2011-6, passed 7-11-2011)
For the purpose of this chapter, the following words and phrases shall have meanings respectively prescribed to them by this section:
ADULT BOOKSTORE. An establishment having as a substantial portion of its stock in trade, books, magazines, films, records, recording tapes, video tapes or other periodicals, for sale or for viewing either on or off the premises, which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.
ADULT DEVICE STORE. An establishment having as a substantial portion of its stock in trade any device, appliance, instrument or object which is represented either by the operator of the establishment or by its packaging, advertising or other literature furnished therewith as enhancing, assisting, representing, depicting or relating to specified sexual activities or specified anatomical areas or an establishment with a segment or section devoted to the sale or display of such material.
ADULT ENTERTAINMENT CABARET. A nightclub, dance hall, bar, restaurant or similar commercial establishment that regularly features:
(1) Persons who appear in a state of nudity or semi-nudity;
(2) Live performances that are characterized by the display of specified sexual activities; or
(3) Films, motion pictures, video cassettes, slides or other photographic reproductions that are characterized by the display of specified sexual activities or nudity or specified anatomical areas.
ADULT MINI MOTION PICTURE THEATER. An enclosed building or drive-in theater with a capacity for less than 50 persons used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.
ADULT MOTEL. A motel, hotel or similar commercial establishment which:
(1) Offers public accommodations, for any form of consideration, and which regularly provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by their emphasis upon the exhibition or description of specified sexual activities or specified anatomical areas and which regularly advertises the availability of such material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising, including, but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television; and
(2) Regularly offers sleeping rooms for rent for a period of time less than ten hours.
ADULT MOTION PICTURE THEATER. An enclosed building or a drive-in theater with a capacity of 50 or more persons used regularly and routinely for presenting motion pictures having as a dominant theme material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.
BODY SHOP or MODEL STUDIO. Any public or private establishment which describes itself as a body shop or model studio, or where for any form of consideration or gratuity, figure models who display specified anatomical areas are provided to be observed, sketched, drawn, painted, sculpted, photographed or similarly depicted by persons paying such consideration or gratuity, or where for any form of consideration or gratuity, nude or semi-nude dancing, readings, counseling sessions, body painting and other activities that present materials distinguished or characterized by all emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas are provided for observation by or communication to persons paying such consideration or gratuity.
BUILDING STRUCTURE. Any structure or group of structures housing two or more businesses which share a common entry, exit, wall or frontage wall, including, but not limited to, shopping centers, shopping plazas or shopping squares.
MASSAGE. Any method of pressure on or friction against stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating of the external soft parts of the body with the hands or other parts of the human body or with the aid of any mechanical or electrical apparatus or appliances with or without such supplementary aids as rubbing alcohol, liniments, antiseptics, coils, powder, creams, lotions, ointments or other similar preparations commonly used in this practice.
MASSAGE ESTABLISHMENT. An establishment having a fixed place of business where any person, firm, association or corporation engages in or carries on or permits to be engaged in or carried on any of the activities mentioned in the definition of massage of this section; provided, however, that the term massage establishment shall not apply to the following:
(1) Hospitals, nursing homes or sanitaria; or
(2) Barber shops or cosmetology establishments, not operated as a home occupation as defined under the city zoning regulations (Chapter 153), where a barber or cosmetologist, holding a valid, unrevoked license or certificate of registration issued by the state and a valid unrevoked masseur or masseuse permit issued by the city, administers a massage in conjunction with and incidental to the lawful performance of the barber’s or cosmetologist’s particular profession or business; or allows a person, holding a valid unrevoked masseur or masseuse permit issued by the city and working under the direction of the barber or cosmetologist, to administer a massage in conjunction with and incidental to the lawful performance of the barber’s or cosmetologist’s particular profession or business.
NUDITY. The showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state.
SPECIFIED ANATOMICAL AREAS. Any of the following conditions:
(1) Less than completely and opaquely covered:
(a) Human genitals, pubic region or pubic hair;
(b) Buttock; or
(c) Female breast below a point immediately above the top of the areola.
(2) Human genitals in a discernibly turgid state, even if completely covered.
SPECIFIED SEXUAL ACTIVITIES. Any of the following conditions:
(1) The performance of acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts that are prohibited by law;
(2) The actual or simulated touching, caressing or fondling of the breast, buttocks, anus or genitals;
(3) The actual or simulated display of the breasts, buttocks, pubic hair, anus, vulva or genitals; or
(4) Excretory functions as part of or in connection with any activities set forth in divisions (1) through (3) above.
(Ord. 2011-6, passed 7-11-2011)
The following shall be considered adult uses for the purpose of this chapter:
(A) Adult book store;
(B) Adult device store;
(C) Adult entertainment cabaret;
(D) Adult motel;
(E) Adult mini motion picture theater;
(F) Adult motion picture theater;
(G) Body shop or model studio; and
(H) Massage establishment.
(Ord. 2011-6, passed 7-11-2011)
Adult uses shall be permitted subject to the following limitations.
(A) Notwithstanding any provision of this code to the contrary, an adult use shall not feature a person who knowingly or intentionally, in a public place:
(1) Engages in sexual intercourse;
(2) Engages in deviate sexual conduct; or
(3) Fondles the genitals of himself, herself or another person.
(B) All adult uses shall be located only in industrial zoning districts, and within such districts an adult use shall not be located within 1,000 feet of another pre-existing adult use.
(C) An adult use shall not be located within 1,000 feet of a preexisting school or place of worship.
(D) The sale, use or consumption of alcoholic beverages on the premises of an adult use business is prohibited unless the adult use business has a liquor license issued by the city.
(E) An adult use shall not be located in a building structure, which contains another business that sells or dispenses in some manner alcoholic beverages.
(F) Any adult use doing business at the time this chapter takes effect shall have one year from the effective date hereof to comply with the provisions of divisions (A) through (E) above.
(G) Any adult use doing business at the time this chapter takes effect shall have 30 days from the effective date hereof for the issuance of an adult use license.
(Ord. 2011-6, passed 7-11-2011)
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