(A) Purpose. The purpose of the section is to regulate adult oriented businesses through the application of uniform zoning, locational and distance requirements to promote the health, safety, morals and general welfare of the citizens of the city and establish reasonable and uniform regulations for the operation of adult oriented businesses with the goal of reducing or eliminating the adverse secondary effects associated with adult oriented businesses. It is not the intent of this section to limit or restrict the content of communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this section to restrict or deny access by adults to 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 nor effect of this section to condone or legitimize the distribution of obscene material.
(Ord. 98-1174, passed 12-28-98)
(B) Definitions. For the purposes of this section, the following definitions shall apply unless the context indicates or clearly requires a different meaning.
(1) "Adult Oriented Businesses." Those businesses defined as:
(a) "Adult Bookstore", "Adult Novelty Store" or "Adult Video Store." A commercial enterprise which has as a significant or substantial portion of its stock-in-trade or derives a significant or substantial portion of its individual sales or devotes a significant or substantial portion of its interior business or advertising to the sale or rental, for any form of consideration, of any one or more of the following. For the purposes of this definition, "Significant or Substantial Portion" shall mean at least twenty-five percent (25%) of the business sales, interior business premises or advertising is devoted to an Adult Oriented Business purpose.
(i) Books, magazines, newspapers, periodicals or other printed matter, or drawings, photographs, films, motion pictures, vidoe cassettes, slides, compact discs, laser discs, computer driven video productions, or other visual representations which are characterized by the depiction or description of "Specified sexual activities" or "specified anatomical areas" as defined herein;
(ii) Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse.
(b) "Adult cabaret." A nightclub, bar, restaurant, "bottle club", adult dancing business or similar commercial enterprise, whether or not alcoholic beverages are served, which regularly features:
(i) Persons who appear nude, semi-nude or in a state of nudity;
(ii) Live performances which are characterized by the exposure of "specified anatomical areas" and/or the exhibition of "specified sexual activities";
(iii) Photographs, films, motion pictures, video cassettes, slides, compact discs, laser discs, computer driven video productions, or other visual representations whic are characterized by the depiction or description of "specified sexual activities" and/or "specified anatomical areas" as defined herein; or
(iv) "Adult dancing." Includes, but is not limited to the following: any dancing which exposes to view by patrons, spectators or persons on the premises at any time the "specified anatomical areas" and/or consists of "specified sexual activities".
(c) "Adult Motel." A motel, hotel or similar commercial enterprise which offers public accommodations, for any form of consideration, which provides patrons with closed-circuit television transmissions, photographs, films, motion pictures, video cassettes, slides, compact discs, laser discs, computer driven video productions, or other visual representations which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas" as defined herein; and which advertises the availability of this adult oriented type of 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.
(d) "Adult movie theater." A commercial enterprise where photographs, films, motion pictures, video cassettes, slides, compact discs, laser discs, computer driven video productions, or other visual representations which are characterized by the dominant depiction or description of "specified sexual activities" or "specified anatomical areas" as defined herein; are regularly shown for any form of consideration.
(e) "Adult Theater." A theater, concert hall, auditorium, or similar commercial enterprise which, for any form of consideration, regularly features persons who appear in a state of nudity or live performances which are characterized by an emphasis on and/or exposure of "specified anatomical areas" or by "specified sexual activities".
(f) "Escort agency." A person or business association who furnishes, offers to furnish, or advertises to furnish Escorts as one of its primary business purposes for a fee, tip, or other consideration; including, but not limited to an out-call service in the form of nude or semi-nude dancing or exhibition.
(g) "Adult Personal Service Business." Any commercial enterprise where, either on or off the business premises, for any form of consideration or gratuity; massage, alcohol rub, administration of fomentations, electric or magnetic treatments, hair care, manicures, pedicures, exotic rubs and/or any other treatment manipulation of the human body, occurs as a part of or in connection with "specified sexual activities", or where any person providing such treatment, manipulation, or service related thereto, exposes any of his or her "specified anatomical areas" for another person, who may or may not appear in a state of nudity or display "specified anatomical areas". The definition of Adult Personal Service Business or Adult Oriented Business shall not include the practice of any treatment manipulation in any licensed hospital, nor by a licensed hospital, nor by a licensed physician, surgeon, chiropractor or osteopath, nor by any nurse or technician working under the supervision of a licensed physician, surgeon, chiropractor or osteopath, nor by trainers for any amateur, semiprofessional or professional athlete or athletic team or school athletic program.
(h) "Nude Model Studio." Any place where a person, who regularly appears in a state of nudity or displays "specified anatomical areas" is provided for money or any form of consideration to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons. This definition does not include a modeling class offered by a college, junior college, or university supported in whole or in part by taxation; 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; or 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; and where, in order to participate in a class, a student must enroll at least three (3) days in advance of the class.
(i) "Sexual Encounter Center." A business or commercial enterprise, that as one of its primary business purposes, offers for any form of consideration, a place where two or more persons may congregate, associate, or consort for the purpose of "specified sexual activities" or the exposure of "specified anatomical areas" or activities when one or more of the persons is in a state of nudity or semi-nudity. The definition of Sexual Encounter Center shall not include a business where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the State engages in medically approved and recognized sexual therapy.
(j) "Adult Arcade." Any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image producing devices are regularly maintained to show images to five or fewer persons per machine at any one time, where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
A business may have other principal business purposes that do not involve any of the aforementioned "Adult Oriented Businesses" and still be categorized as an "Adult Oriented Business". Such other business purposes will not serve to exempt such businesses from being categorized as an "Adult Oriented Business" so long as one of its principal business purposes, in form or substance, is an "Adult Oriented Business" as defined by this section.
(2) "Establishment." Includes any of the following:
(a) The opening or commencement of any Adult Oriented Business as a new business;
(b) The conversion of an existing business, whether or not an Adult Oriented Business, to any of the Adult Oriented Businesses defined in this section;
(c) The addition of any of the Adult Oriented Businesses defined in this section to any other existing Adult Oriented Business; or
(d) The relocation of any such Adult Oriented Business.
(3) "Nudity" or "State of Nudity."
(a) The appearance of the human bare buttocks, anus, male genitals, female genitals, 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 or any portion of the human female breast below a horizontal line across the top of the areola at its highest point. This definition shall include the entire lower portion of the human female breast; but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit or other wearing apparel provided that the areola and/or nipple is not exposed in whole or in part. This definition shall include the cleavage of the human buttocks, but shall not include any portion of the cleavage of the human buttocks exhibited by a bathing suit, thong, g-string, or other wearing apparel.
(4) "Operator." Includes the owner, permit holder, manager or person in charge of any permitted or licensed premises.
(5) "Permitted Premises." Any premises that requires a permit and that is classified as an Adult Oriented Business.
(6) "Permittee and/or License." A person in whose name a permit and/or license to operate, work in, perform in or entertain in an Adult Oriented Business has been issued, as well as the individual listed as an applicant on the application for a permit and/or license.
(7) "Person." An individual, proprietorship, partnership, corporation, association, or other legal entity recognized by the Kentucky Revised Statutes or any other state.
(8) "Specified Anatomical Areas." Includes any of the following:
(a) Less than completely and opaquely covered human genitals, buttocks, the anus, the human female breast below a horizontal line across the top of the areola at its highest point. This definition shall include the entire lower portion of the human female breast; but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit or other wearing apparel provided that the areola and/or nipple is not exposed in whole or in part. This definition shall include the cleavage of the human buttocks, but shall not include any portion of the cleavage of the human buttocks exhibited by a bathing suit, thong, g-string or other wearing apparel; or
(b) Human male genitals in a clearly discernible turgid state, even if completely and opaquely covered.
(9) "Specified Sexual Activities." Includes any of the following:
(a) The fondling or other intentional touching of human genitals, buttocks, anus, or female breasts;
(b) Sex acts, normal, deviant, or perverted, actual or simulated; including, but not limited to sexual intercourse, oral copulation, anilingus, cunnilingus, fellatio, flagellation, sadism or sadomasochism;
(c) Erotic or sexual stimulation with objects of mechanical devices;
(d) Masturbation, actual or simulated;
(e) Human genitals in a state of sexual stimulation, arousal or tumescence;
(f) bestiality;
(g) Excretory functions as part of or in connection with any of the activities set forth in subdivisions (a) through (f) of this subsection.
(10) "Substantial Enlargement of an Adult Oriented Business." Increase in the floor area occupied by the business by more than fifteen percent (15%) as the floor areas exist on the date of the enactment of this section.
(11) "Transfer of Ownership or Control of an Adult 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; or
(c) The establishment of a trust, gift, or other similar legal devise which transfers ownership or control of the business, except for transfer by bequest or other operation of law upon the death of a person possessing the ownership or control.
(12) "Protected Uses."
(a) "Public building." Any building owned, leased, or held by the United States, the State of Kentucky, Calloway County, the City of Murray, any special district, school district, or any other agency or political subdivision of the State or the United States, which building is used for governmental purposes.
(b) "Public park" or "recreation area." Public land, structure or building which has been designated for park or recreational activities including but not limited to a park, playground, swimming pool, athletic field, basketball or tennis courts, pedestrian/bicycle paths, open space, or similar public land within the city which is under control, operation, or management of the city park and recreation authorities.
(c) "Religious institution." Any church, synagogue, mosque, temple or building which is used primarily or regularly for religious worship and related religious activities.
(d) "School." Any public or private educational facility including but not limited to "Day Care Centers" (as defined in the Zoning Ordinance), kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, school administration buildings or facilities, junior colleges, and universities. School includes any building upon the school grounds.
(13) "Residential Zone." Any land so designated by the Zoning code of the city as R-1, R-2, R-3, R-3A, R-4, R-5 or any Residential Zone as hereafter created.
(C) Establishing and Classification of Regulated Businesses.
(1) Adult Oriented Businesses shall be established only in identified B-2 and Industrial Zones and shall be subject to the restrictions of this Section. In those zones, Adult Oriented Businesses shall be Conditional Uses; provided all other requirements of this Chapter are satisfied. No person shall establish an Adult Oriented Business within 1000 feet of another Adult Oriented Business or within 750 feet of any Protected Use(s), as previously defined, or within 300 feet of any Residential Zone. The Adult Oriented Business Zoning Map is hereby incorporated by reference as if fully set forth herein. Adult Oriented Businesses, as defined in Subsection (B), are classified as follows:
(a) Adult Bookstores,
(b) Adult Novelty Stores,
(c) Adult Video Stores,
(d) Adult Cabarets,
(e) Adult Motels,
(f) Adult Motion Picture Theaters,
(g) Adult Theaters,
(h) Adult Personal Service Businesses,
(i) Sexual Encounter Centers,
(j) Escort Agencies,
(k) Nude Model Studios, and
(l) Adult Arcades.
(D) Measurement of Distance. For the purpose of this section, the distance between any two Adult Oriented Businesses shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of each business. The distance between any Adult Oriented Business and any Protected Use, as defined in this section shall be measured in a straight line, without regard to intervening structures, from the nearest part of the Adult Oriented Business to the closest exterior structural wall of the protected use. The distance between any Adult Oriented Business and any Residential Zone shall be measured by a straight line, without regard to intervening structures, from the nearest part of the Adult Oriented Business to the exterior line of the Residential Zone.
(E) Non-conforming uses. An Adult Oriented Business lawfully operating as a conforming use is not rendered non-conforming use is not by the subsequent location of a Protected Use within 750 feet of the Adult Oriented Business, the subsequent location of an Adult Oriented Business within 1000 feet of the Adult Oriented Business and/or the location of a Residential Zone within 300 feet of the Adult Oriented Business. This subsection does not apply to an Adult Oriented Business whose permit and/or license has expired or been revoked.
(F) Location of Adult Oriented Business. A person commits a Class B Misdemeanor as defined by § 156.999, if he operates or causes to be operated an Adult Oriented Business:
(1) In any manner except as provided under this section.
(2) Within 750 feet of any Protected Use.
(3) Within 1000 feet of any other Adult Oriented Business.
(4) Within 300 feet of a Residential Zone.
(5) Operates more than one Adult Oriented Business under a single roof.
(6) Causes the Substantial Enlargement of an Adult Oriented Business.
(G) Advertising and Lighting Regulations. A person commits a violation as defined by § 156.999 if he operates or causes to be operated an Adult Oriented Business; and displays or exhibits adult oriented materials and adult oriented performances in advertising which is visible outside the premises except for advertising showing the existence or location of an Adult Oriented Business. Nothing in this Section relieves the permittee from compliance with any other provision of the ordinances or planning and zoning requirements of the city.
(H) Immunity from ProsecUtion. The City, the Police Department and all other city officers, agents and employees, charged with enforcement of state and local laws and codes shall be immune from prosecution, civil or criminal, for reasonable, goodfaith trespass upon an Adult Oriented Business while acting within the scope of authority by this section.
(Ord. 98-1174, passed 12-28-98)