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§ 122.01 FINDINGS; DECLARATION OF PUBLIC POLICY; PURPOSE.
   (A)   The Commission finds it has been the experience of other communities that certain adult entertainment activities which are located near areas zoned for residential use, near schools and public parks, and near malls and similar open spaces that cater to use by family groups and children adversely affect the viability of such nearby properties for their described purposes.
   (B)   The City of Pikeville and the Commonwealth of Kentucky and the United States government have spent millions of dollars on community development and neighborhood enhancement projects within the recent past to eliminate blight and to prevent the further deterioration of Pikeville neighborhoods.
   (C)   (1)   The Commission relies on such evidence of the adverse secondary effects of adult entertainment uses that is within the common knowledge of municipalities and is widely reported in judicial opinions, media reports, land use studies, and crime impact reports made available to the Commission, several of which are set forth herein. Additionally, the Commission relies on repeated judicial findings validating municipalities’ reasonable reliance on this body of secondary effects evidence to support time, place, and manner regulations of sexually oriented businesses. The Commission relies upon and incorporates the findings of secondary effects discussed in the following non-exhaustive list of cases: Pap’s A.M. v. City of Erie, 529 U.S. 277 (2000); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); Barnes v Glen Theatre, Inc., 501 U.S. 560 (1991); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); California v. LaRue, 409 U.S. 109 (1972); DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Currence v. City of Cincinnati, 2002 U.S. App. LEXIS 1258; Broadway Books v. Roberts, 642 F. Supp. 486 (E.D. Tenn. 1986); Bright Lights, Inc. v. City of Newport, 830 F. Supp. 378 (E.D. Ky. 1993); Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir 2003); Richland Bookmart v. Nichols., 137 F.3d 435 (6th Cir. 1998): Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Deja vu v. City of Pikeville, 1999 U.S. App. LEXIS 535 (6th Cir. 1999); Bamon Corp. v. City of Dayton, 923 F2d. 470 (6th Cir. 1991); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994); O’Connor v. City and County of Denver, 894 F.2d 1210 (10th Cir. 1990; Deja vu of Nashville, Inc., et al. v. Metropolitan Government of Nashville and Davidson County, 274 F.3d 377 (6th Cir. 2001); Z.J. Gifts D-2, LLC, v. City of Aurora, 136 F.3d 683 (10th Cir. 1998); ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994); World Wide Video of Spokane, Inc. v. City of Spokane, 227 F. Supp. 2d 1143 (E.D. Wash. 2002); Threesome Entertainment v. Strittmather, 4 F. Supp. 2d 710 (N.D. Ohio 1998); Bigg Wolf Discount Video Sales, Inc. v Montgomery County, 256 F. Supp. 2d 385 (D. Md. 2003); Kentucky Restaurant Concepts, Inc. v. City of Louisville and Jefferson County, 209 F. Supp. 2d 672 (W.D. Ky. 2002); Restaurant Ventures v. Lexington-Fayette Urban County Gov’t, 60 S.W.3d 572 (Ct. App. Ky. 2001); Mr. B’s Bar & Lounge, Inc. v. Louisville, 630 S.W.2d 564 (Ct. App. Ky. 1981).
      (2)   The Commission further relies on reports concerning secondary effects occurring in and around sexually oriented businesses, including, but not limited to, Phoenix, Arizona-1979; Houston, Texas - 1997; Indianapolis, Indiana - 1984: Amarillo, Texas - 1977; Garden Grove, California - 1991; Los Angles, California - 1977; Whittier, California - 1978; Austin, Texas - 1986: Seattle, Washington - 1989; Tucson, Arizona - 1990; Testimony, Warner-Robins, Georgia - 2000; Newport News, Virginia - 1996; St. Cloud, Minnesota - 1994; New York Times Square study - 1994; Minnesota, State of - 1989; Phoenix, Arizona - 1995-1998; and also on findings of physical abuse from the paper entitled “Stripclubs According to Strippers - Exposing Workplace Sexual Violence,” by Kelly Holsopple, Program Codes Enforcement Officer, Freedom and Justice Center for Prostitution Resources, Minneapolis, Minnesota. Based on cases and reports such as these, the Commission finds:
      (a)   Sexually oriented adult entertainment 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, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and, drug trafficking, negative impacts on property values, urban blight, pornographic litter, and sexual assault and exploitation.
      (b)   Sexual acts including masturbation, oral and anal sex, sometimes occur at unregulated adult entertainment businesses, especially those which provide private or semi-private booths, rooms, or cubicles for viewing films, videos, or live sexually explicit shows, which acts constitute a public nuisance and pose a risk to public health through the spread of sexually transmitted diseases.
      (c)   Adult entertainment businesses should be separated from sensitive land uses to minimize the impact of their secondary effects upon such uses, and should be separated from other certain uses, such as other sexually oriented businesses and establishments licensed to sell alcoholic beverages to minimize the secondary effects associated with such uses and to prevent a concentration of sexually oriented businesses and such uses.
      (d)   Each of the foregoing negative secondary effects constitutes a harm, which the Commission has a substantial government interest in abating and/or preventing in the future.
   (D)   Adult entertainment activity tends to attract an undesirable clientele which discourages neighboring residents from undertaking civic improvements, causes residents and businesses to move elsewhere and frustrates attempts to attract new residences and businesses to come into an area, all of which factors contribute to a diminution of property values and to a general deterioration of neighborhoods.
   (E)   The small closet-like rooms or “booths” at adult amusement arcades in other communities have encouraged persons to loiter for the purposes of engaging in unlawful, often anonymous, sexual conduct and have encouraged lewd conduct in public places, thereby creating public nuisances and generally unsanitary and unhealthful conditions that create dangers to the public health, welfare and safety.
   (F)   The concentration of sexually explicit movies and books and sexual paraphernalia in adult entertainment establishments which also house sexually explicit movies, as well as hotel rooms rented by the hour to “couples” afforded free sexually explicit movies in the hotel room, have provided prostitutes an appealing and visible meeting place to ply their trade and have created public nuisances in otherwise respectable neighborhoods.
   (G)   Children, the family environment and residential neighborhoods suffer injury from the deleterious effects and harmful consequences resulting from the distribution of, and exposure to, certain sexually explicit items and devices. This is particularly so when such items and devices are permitted to leave a business’ premises and litter the immediate family environment, neighborhood and certain areas where children are likely to be.
   (H)   The noise generated by patrons coming and going from adult entertainment establishments causes a substantial disruption to nearby residents and modest curtailment of the hours during which entertainment is offered to patrons of such establishments would afford some relief to persons living in those nearby residences without significantly interfering with the availability of adult entertainment.
   (I)   Nationally, there is extensive involvement of organized crime in the business of adult bookstores and the disclosure of persons who own, as well as the names of those persons who operate adult bookstores and other adult entertainment establishments will aid law enforcement officials in the enforcement of the federal Racketeer Influences and Corrupt Organizations Act (RICO) and the enforcement of the laws of the Commonwealth of Kentucky, among others, prohibiting the distribution of obscene matter, the use of minors to distribute obscene matter, the advertising of obscene material, the distribution of obscene material to minors, promoting the sale of obscenity, the use of a minor in a sexual performance, the distribution of material portraying a sexual performance by a minor, the promoting of material portraying a sexual performance by a minor and the advertising of material portraying a sexual performance by a minor and the use of minors to distribute materials portraying a sexual performance by a minor.
   (J)   The Commission declares as a matter of public policy that in order to preserve surrounding neighborhoods, to prevent blight and the deterioration of the neighborhoods of Pikeville, protect property values, promote the return of residents and businesses to the neighborhoods, protect children from the deleterious effects of exposure to sexually explicit material and decrease the incidence of crime and juvenile delinquency, the licensing and regulation of adult entertainment establishments is a public necessity and is required in the interest of public health, safety and welfare as well as the economic and aesthetic well-being of the people.
   (K)   Purposes.
      (1)   It is the purpose of this chapter to regular sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of Pikeville, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within Pikeville. 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. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene material;
      (2)   To prevent the unsanitary conditions that exist at adult amusement arcades, and to prevent health risks, including AIDs and other sexually transmitted diseases, caused by illicit and unlawful sexual relations in such public establishments;
      (3)   To protect children and the family environment from the deleterious and harmful effects of exposure to certain sexually explicit items and devices; and
      (4)   To obtain the identity of persons licensed and to be licensed for the operation of establishments selling, showing, renting or offering certain sexually explicit material or entertainment to ensure proper identification of those persons responsible for the operation of such businesses so as to assist in the proper enforcement of this chapter.
   (L)   It is not the purpose of this chapter to establish community standards on obscenity nor to permit persons to engage in any activity which is in violation of law, including but not limited to, state laws pertaining to the advertising, promotion, distribution or sale of obscene matter or matters portraying a sexual performance by a minor, or state laws pertaining to the use of a minor in a sexual performance or promotion of sexual performance by a minor, or the use of a minor to distribute material portraying sexual performance by a minor.
(Ord. 2005-0-009, passed 5-9-05)
§ 122.02 DEFINITIONS.
   For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning
   ADULT ENTERTAINMENT ACTIVITY or ADULT ENTERTAINMENT ACTIVITIES or ADULT ENTERTAINMENT ESTABLISHMENT. Regular commercial participation in one (1) or more of the following defined activities:
      (1)   ADULT AMUSEMENT ARCADE. An establishment having as one (1) of its principal uses one (1) or more of the following: customer-operated motion picture devices, peep shows, viewing areas and/or similar devices either coin, token or slug operated or which, in consideration of an entrance fee, display matter distinguished or characterized by an emphasis on displays of sexual activities, as hereinafter defined, or which other male or female persons expose to the view of the customer the bare female breast helow a point immediately above the top of the areola, human genitals, pubic region or buttocks, even if partially or completely covered by translucent material, or human or simulated male genitals in a discernibly turgid state, even if completely or opaquely covered.
      (2)   ADULT BOOK STORE. An establishment having as one (1) of its principal uses the sale, rent or display of pictures, books, periodicals, magazines, appliances and similar material which are distinguished or characterized by their emphasis on displays of sexual activities.
      (3)   ADULT MOTION PICTURE THEATER. An establishment having as one (1) of its principal uses the presentation of motion pictures, slide projections and other similar material having as a dominant theme or characterized or distinguished by an emphasis on matter displaying, describing or relating to sexual activities, as hereinafter defined, for observation by persons therein.
      (4)   ADULT NOVELTY CENTER. A commercial establishment which regularly features for sale instruments, devices, “adult toys” or paraphernalia which are designed for or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of oneself or others. Such instruments and devices shall not include condoms, contraceptive devices, spermicidal substances and lubricants, or other such products designed to prevent pregnancy or sexually transmitted diseases.
      (5)   ADULT STAGE SHOW THEATER. An establishment having as one (1) of its principal uses the regular presentation of live performances of humans or animals having as a dominant theme or characterized or distinguished by an emphasis on matter displaying semi-nudity or sexual activities for observation by persons therein.
      (6)   ADULT VIDEO CASSETTE. RENTAL CENTER. A commercial establishment which has as one (1) of its principal business uses the rental or sale of videocassettes or other video recordings which display material distinguished or characterized by an emphasis on displays of sexual activities.
      (7)   CABARET. An establishment, which regularly features as one (1) of its principal uses persons who appear semi-nude before patrons.
      (8)   COMMERCIAL SEXUAL ENTERTAINMENT CENTER. Any commercial establishment not otherwise described herein which as one (1) of its principal uses regularly offers matter, services or entertainment appealing to adult sexual interests if the establishment or its entertainment, services or goods are advertised by or on behalf of the establishment in a manner patently designed to appeal to such adult sexual interests.
      (9)   SELF-DESIGNATED ADULT ENTERTAINMENT CENTER. Any establishment which designates all or a portion of its premises as for adults only and has a policy of excluding minors from its premises or from a portion of its premises and which advertises so as to convey the impression that the services, entertainment, matter or goods available at the premises or at the portion of the premises designated for adults only are characterized or distinguished by displays of human genitals or sexual activities.
   CITY GOVERNMENT. The City of Pikeville government.
   CODES ENFORCEMENT OFFICER. The Codes Enforcement Officer or his or her designee or office.
   EMPLOYEE. Any person hired by or suffered or permitted to work in an establishment engaging in adult entertainment activities whether that person receives remuneration or compensation directly from the operator or owner of the establishment, from patrons of the establishment or from any other source whether by contract of employment or otherwise, for work or services performed for the benefit of the adult entertainment establishment. EMPLOYEE does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods, such as food, to the premises.
   ESTABLISHMENT. A business entity or endeavor, fixed, mobile or traveling, including its owners, operators, Code Enforcement Officers, shareholders, partners, employees and possessions.
   HEARING OFFICER. The Hearing Officer as appointed by the Commission for the City of Pikeville.
   LICENSEE. A person in whose name a license to operate an adult entertainment establishment has been issued, as well as the individual or individuals listed as an applicant on the application for an adult entertainment establishment license. In case of an employee, it shall mean the person in whose name the adult entertainment employee license has been issued.
   MATERIALS. Any book, magazine, newspapers, or other printed or written matter, or any picture, drawing, photograph, motion picture, video cassette film or other pictorial representation or mechanical, chemical, or electrical reproduction or any other articles, equipment, machines or materials.
   NUDITYor STATE OF NUDITY. The showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage 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 and areola.
   OPERATOR. Any individual, partnership, corporation or business entity that establishes and/or maintains a business as its owner or manager and may also mean LICENSEE as defined hereinabove.
   PERSON. Any individual, partnership, corporation or business entity.
   PRINCIPAL OWNER. Any person owning, directly or beneficially, twenty percent (20%) of a corporation’s equity securities, twenty percent (20%) or more of the membership interests in a limited liability company, or, in the case of any other legal entity, twenty percent (20%) or more of the ownership interests in the entity.
   PRINCIPAL USE. A substantial or significant use, but not necessarily a majority of the business activity or stock in trade. The fact that a business may have one (1) or more other principal uses unrelated to adult entertainment shall not relieve the business from the provisions of this chapter applicable to adult entertainment establishments. PRINCIPAL USE shall exist in the following circumstances:
      (1)   Where a business establishment dedicates, or permits the use of, at least twenty-five percent (25%) of the utilized square footage of its premises for adult entertainment activity or activities; or
      (2)   Where at least twenty-five percent (25%) of the gross receipts of a business establishment, excluding food and beverage receipts, result from adult entertainment activity or activities.
   REAL ESTATE OWNER. Any individual, partnership, corporation or business entity who has legal title to real estate, with or without accompanying actual possession thereof or has the beneficial ownership of any real estate and a right to present use of enjoyment thereof, including a mortgagee in possession.
   REGULARLY. As used in the phrases herein such as “regularly features” and “regularly offers,” REGULARLY means a consistent or repeated course of conduct engaged in or permitted by the operator of the business.
   SEMI-NUDE or STATE OF SEMI-NUDITY. A state of dress in which opaque clothing covers no more than the genitals, anus, anal cleft or cleavage, pubic area, vulva, and nipple and areola of the female breast, as well as portions of the body covered by supporting straps or devices. This definition shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel provided that the areola and nipple are not exposed in whole or in part.
   SEXUAL ACTIVITIES. Partial or complete male and/or female nudity in conjunction with:
      (1)   Displays of human genitals in a state of sexual stimulation;
      (2)   Acts of human masturbation, sexual intercourse or sodomy; or
      (3)   Holding or other erotic touching of human genitals, pubic region, buttocks or breasts.
   SPECIFIED CRIMINAL, ACTIVITIES. Any of the following offenses:
      (1)   KRS 510.040, 510.050, or 510.060 (rape in the first, second, or third degree); KRS 510.070, 510.080, or 510.090 (sodomy in the first, second, or third degree); KRS 510.110, 510.120, or 510.130 (sexual abuse in the first, second, or third degree); KRS 510.140 (sexual misconduct); 510.150 (indecent exposure); KRS 517.050 (falsifying business records); KRS 529.020 or 529.040 (prostitution, promoting prostitution in the first, second, or third degree); KRS 529.070 (permitting prostitution); KRS 531.020, 531.030, 531.040 (distributing obscene matter, distributing obscene matter to minors, using minors to distribute obscene matter); KRS 218A.140 et seq. (offenses relating to controlled substances); any offense listed in KRS 531.300 through 531.370 (sexual exploitation of minors offenses); engaging in organized crime (KRS 506.120) relating to a sexually oriented business; criminal attempt, conspiracy or solicitation to commit any of the foregoing offenses or offenses in other jurisdictions and the acts would have constituted any of the foregoing offenses if the acts had been committed in Kentucky, for which:
         (a)   Less than two (2) years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
         (b)   Less than five (5) years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or
         (c)   Less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two (2) or more misdemeanor offenses or combination of misdemeanor offenses occurring within any twenty-four (24) month period.
      (2)   The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.
(Ord. 2005-0-009, passed 5-9-05)
§ 122.03 ADMINISTRATION.
   The Codes Enforcement Officer is empowered to enact from time to time such rules and regulations deemed necessary for the orderly and complete administration of this chapter. All regulations shall be submitted to the City Commission for adoption. All licensees and persons with license applications pending shall be mailed copies of all such regulations and they shall be published one (1) time in the newspaper as soon as practical after they become effective.
(Ord. 2005-0-009, passed 5-9-05)
§ 122.04 EFFECT; LIMITATION.
   It is not the purpose of this chapter to establish community standards on obscenity nor to permit persons to engage in any activity which is in violation of law, including but not limited to state laws pertaining to the advertising, promotion, distribution, or sale of obscene matter or matters portraying a sexual performance by a minor, or state laws pertaining to use of a minor in a sexual performance or promotion of a sexual performance by a minor, or the use of a minor to distribute material portraying sexual performance by a minor.
(Ord. 2005-0-009, passed 5-9-05)
RESTRICTIONS; OPERATING REGULATIONS
§ 122.15 SIGNAGE.
   An adult entertainment establishment, except as otherwise provided by laws which may be more restrictive, may not have more than one (1) sign outside, flush to the wall, facial style, not to exceed in size ten (10) feet in length (horizontal to the ground) and three (3) feet in width (vertical to the ground) with no flashing lights and with no pictorial matter which is distinguished or characterized by an emphasis on displays of sexual activities.
(Ord. 2005-0-009, passed 5-9-05) Penalty, see § 122.99
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