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The purpose of this article is to promote the health, safety, and general welfare of the citizens of the city by regulating adult businesses, by specifying appropriate locations for such businesses, and by requiring the separation of such businesses by a minimum distance, thereby reducing or eliminating the adverse secondary effects of such businesses. The purpose of this article is not to limit or restrict the content of any communicative materials, including sexually oriented materials, to restrict or deny access by adults to sexually oriented materials protected by the United States or State constitutions, or to deny access by distributors and exhibitors of sexually oriented materials and entertainment to their intended market. The purpose of this article is not to condone or legitimize the distribution of obscene material.
(`64 Code, Sec. 34-200) (Ord. No. 2313)
For the purposes of this article, certain terms and words are defined as follows:
(A) ADULT BUSINESSES - Those businesses defined as follows:
(1) ADULT ARCADE - An establishment where, for any form of consideration, one or more still or motion picture projectors, slide projectors, or similar machines, or other image producing machines, for viewing by five or fewer persons each, are used to show films, motion pictures, video cassettes, slides, or other photographic reproductions characterized by the depiction of specified anatomical areas or specified sexual activities.
(2) ADULT BOOKSTORE, ADULT NOVELTY STORE, or ADULT VIDEO STORE - An establishment that has a significant or substantial portion of its stock-in-trade or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its advertising to the sale, rental or viewing for any form of consideration, books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, or other visual representations characterized by the depiction or description of specified anatomical areas or specified sexual activities, or instruments, devices or paraphernalia designed or marketed primarily for stimulation of human genital organs or for sadomasochistic use.
(3) ADULT CABARET - A nightclub, bar, restaurant, “bottle club,” or similar establishment, whether or not alcoholic beverages are served, that regularly features:
(a) Persons who appear nude;
(b) Live performances characterized by the exposure of specified anatomical areas or the presentation of specified sexual activities; or
(c) Films, motion pictures, video cassettes, slides, or other photographic reproductions characterized by the depiction of specified sexual activities or specified anatomical areas.
(4) ADULT MASSAGE PARLOR - Any place where, for any form of consideration or gratuity, massage, alcohol rubs, administration of fomentations, electric or magnetic treatments, or any other treatment involving manipulation of the human body as a part of or in connection with specified sexual activities, are provided, and where any person providing such treatment, manipulation or services related thereto, exposes his or her specified anatomical areas. “Adult massage parlor” does not include the practice of massage in any licensed hospital or by a licensed physician, surgeon, chiropractor or osteopath, any nurse or technician working under the supervision of a licensed physician, surgeon, chiropractor or osteopath, or by trainers of an athlete or an athletic team or school athletic program.
(5) ADULT MOTEL - A motel, hotel or similar commercial establishment that:
(a) Offers public accommodations, for any form of consideration, that provide patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions characterized by the depiction of specified sexual activities or specified anatomical areas; and
(b) Advertises the availability of this 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, leaflets, radio or television; and
(c) Offers a sleeping room for rent for a time period of less than ten hours; and
(d) Allows a tenant or occupant to sub-rent the sleeping room for a time period of less than ten hours.
(6) ADULT MOTION PICTURE THEATER - An establishment where films, motion pictures, video cassettes, slides or similar photographic reproductions characterized by the depiction of specified sexual activities or specified anatomical areas are regularly shown for any form of consideration.
(7) ADULT THEATER - A theater, concert hall, auditorium, or similar establishment that, for any form of consideration, regularly features persons who appear nude or live performances characterized by the exposure of specified anatomical areas or the presentation of specified sexual activities.
(8) ESCORT AGENCY - A person or business that as one of its primary business purposes and for a fee, tip or other consideration furnishes, offers to furnish, or advertises to furnish escorts on the premises. “Escorts” are persons who, on the premises of an escort agency and for patrons, act as companions, guides or dates or privately model lingerie or perform a striptease.
(9) NUDE MODEL STUDIO - Any place where a person who appears nude 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. Nude model studio does not include a nude modeling class:
(a) Offered by a college, junior college or university supported entirely or partly by taxation;
(b) Offered by a private college or university for class credits that are transferable to a college, junior college or university supported entirely or partly by taxation; or
(c) Held in a structure having no sign or other advertising visible from the exterior of the structure indicating that a nude model is available for viewing, where no more than one nude model is on the premises at the same time, and where in order to participate in the class a student must enroll at least three days in advance of the class.
(10) SEXUAL ENCOUNTER ESTABLISHMENT - An establishment that as one of its primary business purposes offers for any form of consideration a place where two or more persons, at least one of whom is nude, may congregate, associate, or consort for the purpose of engaging in specified sexual activities or the exposure of specified anatomical areas. Sexual encounter establishment does not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar licensed professional person engages in medically approved and recognized sexual therapy.
(B) CITY MANAGER - The manager of the city or designee.
(C) EMPLOYEE - A person who works or performs in and/or for an adult business, regardless of whether the person is paid a salary, wage or other compensation by the operator of the business.
(D) ESTABLISH - “Establish” and its variants (such as “establishing” and “establishment”) shall mean any of the following:
(1) The opening or commencement of an adult business as a new business;
(2) The conversion of an existing business, whether or not an adult business, to an adult business; or
(3) The relocation of an adult business.
(E) NUDE - The display of the unclothed human buttocks, anus or genitals, or the areola or nipple of the female human breast, or a state of dress that fails opaquely and fully to cover such areas of the body.
(F) OPERATOR - The owner, permit holder, custodian, manager, or person in charge of the premises of an adult business.
(G) PERMITTEE - A person in whose name an adult business permit has been issued under this article, as well as the persons listed as applicants in the application for such permit.
(H) PERSON - An individual, proprietorship, partnership, corporation, association or other entity.
(I) PUBLIC BUILDING - Any building owned, leased or held by the United States, the State, the county, the city, a school district, or any other special district, agency or political subdivision of the State or the United States, which building is used for governmental purposes.
(J) PUBLIC PARK OR RECREATION AREA - Public land within the city that has been designated for park, recreational, or arts activities, including but not limited to a park, playground, nature trail, swimming pool, reservoir, athletic field, basketball or tennis court, pedestrian or bicycle path, open space, wilderness area, or similar public land under the control, operation, or management of the city.
(K) RELIGIOUS INSTITUTION - Any church, synagogue, mosque, temple, or building used primarily for religious worship or related religious activities.
(L) RESIDENTIAL ZONE or RESIDENTIAL USE - Property zoned by the city for residential use or a single-family house, duplex, townhouse, multiple-family dwelling, mobile home park, campground, recreational trailer park, or travel trailer park.
(M) SCHOOL - Any public or private educational facility, including but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, colleges and universities. School includes the school grounds, but does not include facilities used primarily for noneducational purposes and only incidentally as a school.
(N) SPECIFIED ANATOMICAL AREAS - Any of the following:
(1) Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breasts below a point immediately above the top of the areolae; or
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
(O) SPECIFIED CRIMINAL ACTS - Sexual crimes against children, sexual abuse or rape, or crimes connected with an adult business, including but not limited to distribution of obscenity, prostitution or pandering.
(P) SPECIFIED SEXUAL ACTIVITIES - Any of the following:
(1) The fondling or other intentional touching of human genitals, pubic region, buttocks, anus, or female breasts;
(2) Actual or simulated sex acts, including intercourse, oral copulation, and sodomy;
(3) Actual or simulated masturbation;
(4) Human genitals in a state of sexual stimulation, arousal or tumescence; or
(5) Excretory functions as part of or in connection with any of the matters set forth in subsections (1) through (4) above.
(Q) YOUTH ORGANIZATION - Any building used primarily for meetings of a social, educational or athletic club or group composed primarily of persons under the age of 18 years.
(`64 Code, Sec. 34-201) (Ord. No. 2313)
(A) Adult businesses, except for adult motels, may be established only within M-1 (light manufacturing) and M-L (limited manufacturing) zones on property designated for adult businesses on the map on file with the city clerk.
(B) Adult motels may be established only within the CBD (central business district), C-O (commercial office), C-2 (general commercial), C-M (commercial and light manufacturing) and BRP (business and research park) zones on property designated for adult motels on the map on file with the city clerk.
(C) Notwithstanding subsections (A) and (B) of this section, no person shall establish an adult business within 1,000 feet of another adult business or any religious institution, school, public building, public park, recreation area, youth organization, residential zone or property used for residential purposes.
(D) Each adult business defined in section 16-336 shall be considered a separate business, whether or not owned or operated by the same persons.
(`64 Code, Sec. 34-202) (Ord. No. 2313)
Distance between any two adult businesses shall be measured in a straight line, without regard to intervening structures, from the closest exterior wall of each business. Distance between any adult business and any religious institution, school, public building, public park, recreation area, youth organization, residential zone or property used for residential purposes shall be measured in a straight line, without regard to intervening structures, from the closest exterior wall of the business to the nearest property line of the religious institution, school, public building, public park, recreation area, youth organization, residential zone or property used for residential purposes.
(`64 Code, Sec. 34-203) (Ord. No. 2313)
(A) Any adult business lawfully operating on the effective date of this article [September 23, 1993] in a location in which section 16-337 does not allow an adult business to be established shall be deemed a nonconforming use and may continue to operate in such location for a period of 14 months, provided an adult business permit is issued for the business as provided in sections 16-340 through 16-342. The planning commission may grant one or more than one year extensions of such period on a convincing showing by the permittee of extreme financial hardship, which is defined as the inability of a reasonably prudent operator of the business to recover a reasonable financial investment in the business within the time allowed. “Reasonable financial investment” refers to investment as of August 10, 1993, including any written lease entered into by the permittee before such date and extending more than one year from such date.
(B) A nonconforming use may not increase the floor area occupied by the adult business on the effective date of this article. A nonconforming use shall terminate if voluntarily discontinued for 30 or more consecutive days. However, a nonconforming use may be changed to a conforming use.
(C) An adult business lawfully operating on the effective date of this article in a location in which section 16-337 allows an adult business to be established is not rendered nonconforming by the location, subsequent to the grant or renewal of an adult business permit, of a religious institution, school, public building, public park, recreation area, youth organization, residential zone or property used for residential purposes, within 1,000 feet of the adult business. This provision applies only to the renewal of a valid adult business permit and does not apply when an application for a permit is submitted after a permit has expired or been revoked.
(D) If two or more adult businesses are lawfully operating on the effective date of this article in locations in which section 16-337 allows adult businesses to be established and are within 750 feet of one another, the adult business that was first established and has been in continuous operation at the particular location is the conforming use and the later established business is nonconforming.
(E) All adult businesses operating on the effective date of this article shall apply for an adult business permit as provided in section 16-340 within 30 days of such effective date. No such adult business shall continue to operate if the permit is denied.
(F) All adult businesses (except adult motels) operating on the effective date of this article and exhibiting on the premises in a viewing room of less than 150 square feet of floor space, a film, video cassette or other video reproduction that depicts specified sexual activities or specified anatomical areas, shall comply with the provisions of section 16-349 in order to be eligible for issuance of an adult business permit.
(`64 Code, Sec. 34-204) (Ord. No. 2313)
(A) No adult business shall operate without a valid adult business permit issued by the city for a particular type of adult business at a particular location.
(B) The city manager shall grant, deny, renew, suspend, revoke and transfer permits for proposed or existing adult businesses in accordance with this article.
(C) The application for a permit must be made on a form provided by the city manager. An original and two copies of the completed and sworn application form must be filed with the city manager. If the applicant is an individual, he or she must sign the application. If the applicant is other than an individual, an officer of the business entity or an individual who has a ten percent or greater interest in the business entity must sign the application.
(D) The completed application shall contain the following information and be accompanied by the following documents:
(1) If the applicant is:
(a) An individual, the individual shall state his or her legal name and any aliases and submit satisfactory written proof that he or she is at least 18 years of age;
(b) A partnership, the partnership shall state its complete name, the names of all partners, whether the partnership is general or limited, and attach a copy of the partnership agreement, if any; or
(c) A corporation, the corporation shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of the State, the names and capacity of all officers and directors, the name of the registered corporate agent, and the address of the registered office for service of process.
(2) If the applicant intends to operate the adult business under a name other than that of the applicant, the applicant must state the fictitious name of the adult business and show proof of registration of the fictitious name;
(3) A description of the type of adult business for which the permit is applied and the proposed address where the adult business will operate;
(4) The address to which notice of action on the application is to be mailed;
(5) The names of all employees required by section 16-347 to obtain an adult business employee license;
(6) A sketch or diagram showing the interior configuration of the premises, including a statement of the total floor area occupied by the adult business. The sketch or diagram need not be professionally prepared, 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.
(7) A certificate and straight-line drawing prepared within 30 days prior to application by a State registered land surveyor, depicting the building and the portion thereof to be occupied by the adult business, and:
(a) Any structures containing existing adult businesses within 1,000 feet of the closest exterior wall of the building in which will be located the adult business for which a permit is applied;
(b) The property lines of any religious institution, school, public park, recreation area or youth organization within 1,000 feet of the closest exterior wall of such building; and
(c) The property lines of any residential zones or property used for residential purposes within 1,000 feet of the closest exterior wall of such building.
(8) A diagram of the off-street parking areas and premises entries of the adult business, showing the location of the lighting system required by section 16-352; and
(9) If the adult business is to exhibit on the premises in a viewing room of less than 150 square feet of floor space films, video cassettes, or other video reproductions that depict specified sexual activities or specified anatomical areas, the applicant shall comply with the requirements stated in section 16-349.
(E) The completed application shall be accompanied by a nonrefundable application fee and an annual permit fee. The permit fee shall be refunded if the application is denied. The amount of such fees shall be set by resolution of the city council.
(F) Applicants shall promptly supplement the application if the information therein, including the names of employees required by section 16-347 to obtain an adult business employee license, changes in any way. Failure to supplement the application within 30 days from the date of such change shall be grounds for suspending the permit.
(G) If the city manager determines that the applicant has completed the application improperly, the city manager shall promptly notify the applicant of such fact and, on request of the applicant, grant the applicant an extension of time of not more than ten days to complete the application properly. In addition, the applicant may request an extension, not to exceed ten days, of the time for the city manager to act on the application. The time period for granting or denying a permit shall be stayed during the period in which the applicant is granted an extension of time.
(H) The fact that an applicant possesses other types of State or city permits or licenses (including but not limited to a business license, a special use permit, a massage permit, an arcade permit or a dance permit) does not exempt the applicant from the requirement of obtaining an adult business permit.
(`64 Code, Sec. 34-205) (Ord. No. 2313)
(A) Upon receipt of an application and payment of the application and permit fees, the city manager shall immediately stamp the application as received and promptly investigate the information contained in the application to determine whether the adult business is entitled to a permit.
(B) Within 30 days of receipt of the application, the city manager shall complete the investigation, grant or deny the application, and mail a copy thereof to the applicant, as follows:
(1) The city manager shall write or stamp “Granted” or “Denied” on the application and date and sign such notation.
(2) If the application is denied, the city manager shall attach to the application a statement of the reasons for denial and refund the annual permit fee.
(3) If the application is granted, the city manager shall attach to the application an adult business permit.
(4) The application as granted or denied and the permit, if any, shall be placed in the United States mail, first class postage prepaid, addressed to the applicant at the address stated in the application.
(`64 Code, Sec. 34-206) (Ord. No. 2313)
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