It is the purpose of this section to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the Town of Prosperity, and to establish reasonable and uniform regulations to prevent the continued deleterious location and concentration of sexually oriented businesses within the town. The provisions of this section 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 or 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 section to condone or legitimize the distribution of obscene material.
(A) Definitions. The following definitions shall apply to this section as written unless context indicates or requires a different meaning:
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 maintained to show images to 5 or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of “certain sexual activities” or “specified anatomical areas.”
ADULT BOOKSTORE or ADULT VIDEO STORE. A commercial establishment which, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:
(a) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, or video reproductions, slides, or other visual representations which depict or describe “specified sexual activities” or “specified anatomical areas;” or
(b) Instruments, devices, or paraphernalia which are designed for use in connection with “specified sexual activities.” A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing “specified sexual activities” or “specified anatomical areas” and still be categorized as adult bookstore or adult video store. Such other business purposes will not serve to exempt such commercial establishment from being categorized as an adult bookstore or adult video store so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials which depict or describe “specified sexual activities” or “specified anatomical areas.”
ADULT CABARET. A nightclub, bar, restaurant or similar commercial establishment which regularly features:
(a) Persons who appear in a state of nudity;
(b) Live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities;” or
(c) Films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.”
ADULT MOTEL. A hotel, motel or similar commercial establishment:
(a) Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas;” and has a sign visible from the public right-of-way which advertises the availability of this adult type or photographic reproductions;
(b) Offers a sleeping room for rent for a period of time that is less than 10 hours;
(c) Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 10 hours.
ADULT MOTION PICTURE THEATER. A commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.”
ADULT THEATER. A theater concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities.”
ESCORT. A person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
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.
ESTABLISHMENT. Means and includes any of the following:
(a) The opening or commencement of any sexually oriented business as a new business.
(b) The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
(c) The additions of any sexually oriented business to any other existing sexually oriented business; or
(d) The relocation of any sexually oriented business.
NUDE MODEL STUDIO. Any place where a person who appears in a state of nudity or displays “specified anatomical area” is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration.
NUDITY OR A STATE OF NUDITY. The appearance of a person's genitals, pubic area, vulva, anus, anal cleft or cleavage or buttocks or any simulation thereof; or any portion of a female breast below the horizontal line across the top of the areola at its highest point or any simulation thereof. The definition shall include the appearance of any portion of the entire lower portion of the female breast.
PERMITTEE AND/OR LICENSEE. A person in whose name a permit and/or license to
operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit and/or license.
PERSON. An individual, proprietorship, partnership, corporation, association, or other legal entity.
SEMI-NUDE. A state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices.
SEXUAL ENCOUNTER CENTER. A business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:
(1) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
(2) Activities between male and female persons and/or persons of the same sex when 1 or more of the persons is in a state of nudity or semi-nude.
SEXUALLY ORIENTED BUSINESS. An adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.
SPECIFIED ANATOMICAL AREAS. The male genitals in a state of sexual arousal and/or the vulva or more intimate parts of the female genitals.
SPECIFIED SEXUAL ACTIVITIES. Means and includes any of the following:
(a) The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts;
(b) Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;
(c) Masturbation, actual or simulated;
(d) The fondling, erotic touching, or other such contact with an animal by a human being; or
(e) Excretory functions as part of or in connection with any of the activities set forth in divisions (a) through (d) above.
SUBSTANTIAL ENLARGEMENT OF A SEXUALLY ORIENTED BUSINESS. The increase in floor areas occupied by the business by more than 25%, as the floor areas exist on May 1, 1999.
TRANSFER OF OWNERSHIP OR CONTROL: OF A SEXUALLY ORIENTED BUSINESS. Means and 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 device which transfers the ownership or control of the business.
(B) Classification. Sexually oriented businesses are classified as follows:
(1) Adult arcades;
(2) Adult bookstores or adult video stores;
(3) Adult cabarets;
(4) Adult motels;
(5) Adult motion picture theaters;
(6) Adult theaters;
(7) Escort agencies;
(8) Nude model studios; and
(9) Sexual encounter centers.
(C) Permit required.
(1) A person commits a misdemeanor if he operates a sexually oriented business without a valid permit and/or license issued by the town for the particular type of business.
(2) An application for a permit and/or license must be made on a form provided by the Town of Prosperity Zoning Department. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business, including a statement of the total floor space occupied by the 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 6 inches.
(3) The applicant must be qualified according to the provisions of this chapter and the premises must be inspected and found to be in compliance with the law by the health department, fire department, and building official. The health department, fire department, and building office shall complete their inspections and certify same to the Zoning Administrator within 21 days of receipt of the application by said Zoning Administrator.
(4) If a person who wishes to operate a sexually oriented business is an individual, he must sign the application for a permit and/or license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a 10% or greater interest in the business must sign the application for a permit and/or license as applicant. If a corporation is listed as owner of a sexually oriented business or as the entity which wishes to operate such a business, each individual having a 10% or greater interest in the corporation must sign the application for a permit and/or license as applicant.
(5) The fact that a person possesses other types of state, or town permits and/or licenses does not exempt that person from the requirement of obtaining a sexually oriented business permit and/or license.
(D) Issuance of permit and fee.
(1) The Town Zoning Administrator shall approve the issuance of a permit and/or license to an applicant within 30 days after receipt of an application unless any one or more of the following is found to be true:
(a) An applicant is under 18 years of age.
(b) An applicant or an applicant's spouse is overdue payment to the town for taxes, fees, fines, or penalties assessed or imposed in relation to a sexually oriented business.
(c) An applicant has failed to provide information reasonably necessary for issuance of the permit or has falsely answered a question or request for information on the application.
(d) An applicant is residing with a person who has been denied a permit and/or license by the town to operate a sexually oriented business within the preceding 12 months, or residing with a person whose license to operate a sexually oriented business has been revoked within the preceding 12 months.
(e) The premises to be used for the sexually oriented business have not been approved by the health department, fire department, and the building official as being in compliance with applicable laws and ordinances.
(f) The permit and/or license fee required by this chapter has not been paid.
(g) An applicant of the proposed establishment is in violation of or is not in compliance with any of the provisions of this chapter.
(h) The permit, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually oriented business. The permit and/or license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time.
(2) The annual fee for a sexually oriented business permit and/or license is $500.
(E) Inspection.
(1) An application of permittee shall permit representatives of the law enforcement department, health department, fire department, zoning department or any other town departments or agencies to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law, at any time it is occupied or open for business.
(2) A person who operates a sexually oriented business or his agent or employee commits a misdemeanor if he refuses to permit such lawful inspection of the premises at any time it is occupied or open for business.
(F) Expiration of permit.
(1) Each permit and/or license shall expire one year from the date of issuance and may be renewed only by making application as provided in § 153.091(B). Application for renewal should be made at least 30 days before the expiration date, and when made less than 30 days before the expirations date, the expiration of the permit and/or license will not be affected.
(2) When the Zoning Administrator denies renewal of a permit and/or license, the applicant shall not be issued a permit and/or license for 1 year from the date of denial. If subsequent to denial, the Zoning Administrator finds that the basis for denial of the renewal permit and/or license has been corrected or abated, the applicant may be granted a permit and/or license if at least 90 days have elapsed since the date of denial became final.
(G) Suspension of permit. The Zoning Administrator may suspend a permit for a period not to exceed 30 days if it is determined that a permittee and/or licensee or an employee of a permittee and/or licensee has:
(1) Violated, or is not in compliance with any section of this chapter;
(2) Engaged in excessive use of alcoholic beverages while on the sexually oriented business premises;
(3) Refused to allow an inspection of the sexually oriented business premises as authorized by this chapter;
(4) Knowingly permitted gambling by any person on the sexually oriented business premises.
(H) Revocation of permit.
(1) The Zoning Administrator shall revoke a permit if a cause for suspension in division (G) occurs and the permit and/or license has been suspended within the preceding 12 months.
(2) The Zoning Administrator shall revoke a permit and/or license if it is determined that:
(a) A permittee and/or his licensee knowingly gave false or misleading information in the material submitted to the Zoning Department during the application process;
(b) A permittee and/or licensee or an employee has knowingly allowed possession, use, or sale of controlled substances on the premises;
(c) A permittee and/or licensee or an employee has knowingly allowed prostitution on the premises;
(d) A permittee and/or licensee or an employee has knowingly operated the sexually oriented business during a period of time when the permittee's and/or licensee's permit and/or license was suspended;
(e) A permittee and/or licensee or an employee has knowingly allowed any act of sexually intercourse, sodomy, oral copulation, masturbation or other sexual conduct to occur in or on the permitted and/or licensed premises;
(f) A permittee and/or licensee is delinquent in payment to the town or state for any taxes or fees past due.
(3) When the zoning administrator revokes a permit and/or license, the revocation shall continue for 1 year, and the permittee and/or licensee shall not be issued a sexually oriented permit and/or license for 1 year from the date revocation became effective. If, subsequent to revocation, the Zoning Administrator finds that the basis for the revocation has been corrected or abated, the applicant may be granted a permit and/or license if at least 90 days have elapsed since the date the revocation became effective.
(I) Transfer of permit. A permittee and/or licensee shall not transfer his permit and/or license to another, not shall a permittee and/or licensee operate a sexually oriented business under the authority of a permit and/or license at any place other than the address designated in the application.
(J) Location of sexually oriented businesses.
(1) A sexually oriented business may be located only within a Basic Industrial District.
(2) A person commits a misdemeanor when operating, or causes to be operated, a sexually oriented business outside of a designated Basic Industrial District.
(3) A person commits a misdemeanor when operating, or causes to be operated, a sexually oriented business within 1,000 feet of:
(a) A church;
(b) A public or private elementary or secondary school;
(c) A boundary of any residential district;
(d) A public park adjacent of any residential use;
(e) A day care center; and/or
(f) The property line of a lot devoted to residential use.
(4) A person commits a misdemeanor if he causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 1,000 feet of another sexually oriented business.
(5) A person commits a misdemeanor if he causes or permits the operation, establishment or maintenance of more than one sexually oriented business in the same building, structure, or portion thereof, or the increase of floor areas of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business.
(6) For the purpose of this chapter, measurement shall be made in a straight line, without regard of intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church, day care center, or public or private elementary or secondary school, or to the nearest boundary of an affected public park, residential district, or residential lot.
(7) For purposes of division (D) of this section, the distance between any 2 sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
(8) Any sexually oriented business lawfully operating on May 1, 1999 that is in violation of division (A) through (G) of this section shall be deemed to non-conforming use. The non-conforming use will be permitted to continue for a period not to exceed 2 years, unless sooner terminated for any reason or voluntarily discontinued for a period of 30 days or more. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If 2 or more sexually oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later-established business(es) is nonconforming.
(9) A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grand or renewal of the sexually oriented business permit and/or license, of a church, public or private elementary or secondary school, public park, day care center, residential district, or a residential lot within 1,000 feet of the sexually oriented business. This provision applies only to the renewal of a valid permit and/or license, and does not apply when an application for a permit and/or license is submitted after a permit and/or license has expired or has been revoked.
(K) Additional regulations for adult motels.
(1) Evidence that a sleeping room in a hotel, motel, or a similar commercial establishment has been rented and vacated 2 or more times in a period of time that is less than 10 hours creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this chapter.
(2) A person commits a misdemeanor if, as the person in control of a sleeping room in a hotel, motel, or similar commercial establishment that does not have a sexually oriented permit and/or license, he rents or subrents a sleeping room to a person and, within 10 hours from the time the room is rented, he rents or subrents the same sleeping room again.
(3) For purposes of this section, the terms “rent” or “subrent” mean the act of permitting a room to be occupied for any form of consideration.
(L) Regulations for exhibition of sexually explicit films or videos.
(1) A person who operates or causes to be operated, a sexually oriented business, other than an adult motel, which exhibits on the premises in a viewing room of less than 150 square feet of floor space, a film, video cassette, or other video reproduction which depicts specified sexually activities or specified anatomical areas, shall comply with the following requirements:
(a) Upon application for a sexually oriented permit and/or license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of 1 or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manger's station may not exceed 32 square feet of floor area. The diagram shall also designate the place at which the permit and/or license will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus 6 inches. The town Zoning Administrator may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.
(b) The application shall be sworn to be true and correct by the applicant.
(c) No alteration in the configuration or location of a manager's station may be made without the prior approval of the Zoning Administrator or his designee.
(d) It is the duty of the owners and operator of the premises to ensure that at least 1
employee is on duty and situated in each manager's station at all times that any patron is present inside the premises.
(e) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manger's station of every area of the premises to which any patron is permitted access for any purpose excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has 2 or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least 1 of the manager's stations. The view required in this division must be by direct line of sight from the manger's station.
(f) It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises, to ensure that the view area specified in division (e) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in application filed pursuant to division (a) of this section.
(g) No viewing room may be occupied by more than 1 person at any time.
(h) The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than 1 foot candle as measured at the floor level.
(i) It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described above is maintained at all times that any patron is present in the premises.
(2) A person having a duty under division (a) through (i) of division (L)(1) above commits a misdemeanor if he knowingly fails to fulfill that duty.
(M) Exemptions. It is a defense to prosecution under division (D) and (J) that a person appearing in a state of nudity did so in a modeling class operated:
(1) By a proprietary school, licensed by the state of South Carolina; a college, junior college, or university supported entirely or partly by taxation;
(2) By a private college or university which maintains and operates education programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or
(3) 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;
(b) Where, in order to participate in a class a student must enroll at least 3 days in advance of the class; and
(c) Where no more than 1 nude model is on the premises at any 1 time.
(N) Injunction. A person who operates or causes to be operated a sexually oriented business without a valid permit and/or license or in violation of division (J) of this section is subject to a suit for injunction as well as prosecution for criminal violation as outlined in §§ 153.155et seq. of this chapter.
(Ord. passed - - )