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(A) Findings of fact. Based on evidence concerning the adverse secondary effects of sexually oriented businesses on the community, presented by the public and in reports made available to the Board, and on findings incorporated in the cases of City of Renton v. Playtime Theatre, Inc. 475 U.S. 41 (1986); Young v. American Mini Theatres, 426 U.S. 50 (1976); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); City of Erie v. Pap’s A.M., 120 S. Ft. 1382 (2000); and Steakhouse, Inc. v. City of Raleigh, 166 F.3d 634 (4th Cir. 1999), cert. denied, 70 U.S.L.W. 3460 (2002), and on studies in other communities including Phoenix, Arizona; Tucson, Arizona; St. Paul, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Austin, Texas; and also on findings from the report of the Attorney General’s workgroup on the regulation of sexually oriented businesses (June 6, 1989, State of Minnesota), the Board of Supervisors of the county makes the following findings.
(1) Sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature, as well as the sale, use, and/or display of obscene materials and obscenity.
(2) The concern over sexually transmitted diseases is a legitimate health concern of the county, which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of the citizens.
(3) There is convincing documented evidence that sexually oriented businesses have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and blight and the downgrading of property values and the quality of life in the adjacent area.
(4) At least one court of competent jurisdiction has ruled that the visual display of the human sex act and/or other prohibited sex acts are obscene.
(5) Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities and/or obscenity.
(6) Certain employees of sexually oriented businesses engage in a higher incidence of certain types of illicit sexual behavior than employees of other establishments.
(7) Sexual acts, including masturbation and oral and anal sex, occur at sexually oriented businesses. Offering or providing such space encourages such activities, which creates unhealthy conditions.
(8) Persons frequent sexually oriented businesses for the purpose of engaging in sex within the premises of such businesses.
(9) At least 50 communicable diseases may be spread by activities occurring in sexually oriented businesses, including syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections, and shigella infections.
(10) Since 1981 to the present, there have been an increasing cumulative number of reported cases of AIDS caused by human immunodeficiency virus (HIV) in the United States.
(11) The Surgeon General of the United States in his or her report of October 22, 1986, advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood components, and from an infected mother to the newborn.
(12) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.
(13) Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because of the activities conducted there are unhealthy and, in part, because of the unregulated nature of the activities and the failure of the owners of the facilities to self-regulate those activities and maintain those facilities.
(14) Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view films depicting specified sexual activities or specified anatomical areas.
(B) Purpose and intent.
(1) It is the purpose and intent of this section to establish content-neutral regulations that address the secondary effects of sexually oriented businesses detailed in division (A) above.
(2) It is the desire of the Board of Supervisors to minimize and control the secondary effects listed in division (A) above and thereby protect the health, safety, and welfare of the citizens of the county, protect the citizens from increased crime, preserve the quality of life within the county, preserve the property values and character of residential areas, and prevent obscenity and the spreading of blight within the county.
(3) It is not the intent of the Board of Supervisors or this chapter to suppress any speech activities protected by the First Amendment of the United States Constitution or the state’s Constitution.
(C) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ADULT ARCADE. Any place to which the public is permitted or invited wherein coin-operated, slug-operated, or for any form of consideration, electronically, electrically, or mechanically-controlled still or motion picture machines, projectors, video or laser disc players, or other image-producing devices are maintained to show images to five 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 specified sexual activities or specified anatomical areas.
ADULT BOOKSTORE, ADULT VIDEO STORE, or ADULT NOVELTY STORE. A commercial establishment having a substantial or significant portion of its stock-in-trade in one or more of the following:
(a) Books, magazines, other periodicals, videotapes, computer disks, CD-ROMs, DVD-ROMs, virtual reality devices, or similar media that are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas; and/or
(b) Instruments, devices, or paraphernalia that are designed for use in connection with specified sexual activities.
ADULT LIVE ENTERTAINMENT. A nightclub, bar, restaurant, or similar commercial establishment which regularly features:
(a) Persons who appear in a state of nudity or seminude;
(b) Live performances, which are characterized by the exposure of specific anatomical areas or by specified sexual activities; or
(c) Films, motion pictures, videocassettes, 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 which:
(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 of photographic reproductions;
(b) Offers a sleeping room for rent for a period of time that is less than ten hours; or
(c) Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten hours.
ADULT MOVIE 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 seminude, or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
DIRECT LINE OF SIGHT. The ability to directly view an area without the benefit or assistance of a mirror, video camera, or similar aid.
EMPLOYEE. A person who performs any service on the premises of a sexually oriented business on a full-time, part-time or contract basis, whether or not the person is denominated an employee, independent contractor, agent, or otherwise and whether or not said person is paid a salary, wage, or other compensation by the operator of said business. EMPLOYEE does not include a person exclusively on the premises for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises.
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. Any of the following:
(a) The opening or commencement of any sexually oriented business as 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.
MASSAGE PARLOR. Any place where manipulation of body tissues for any purpose is conducted and the owners and employees are not a physician, chiropractor, osteopath, naturopath, or physical therapist duly licensed by the state, nor a massage therapist certified by the State Board of Nursing.
NUDE MODEL STUDIO. Any place where a person who appears seminude, in a state of nudity, or who displays specified anatomical areas and is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration. NUDE MODEL STUDIO shall not include a proprietary school licensed by the state or a college, junior college, or university supported entirely or in part by public taxation; 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) That has no sign visible from the exterior of the structure and no other advertising that indicates a nude or seminude person is available for viewing; and
(b) Where in order to participate in a class a student must enroll at least three days in advance of the class; and
(c) Where no more than one nude or seminude model is on the premises at anyone time.
NUDITY or 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, 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.
OBSCENE. That which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political, or scientific value.
(VA Code § 18.2-372)
PERSON. An individual, proprietorship, partnership, corporation, association, or other legal entity.
SEMINUDE or IN A SEMINUDE CONDITION. The showing of the female breast below a horizontal line across the top of the areola at its highest point or the showing of the male or female buttocks. 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, skirt, leotard, bathing suit, or other wearing apparel provided the areola is not exposed in whole or in part.
SEXUAL ENCOUNTER CENTER. A business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration:
(a) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
(b) Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or seminude.
SEXUALLY ORIENTED BUSINESS. An adult arcade, adult bookstore, adult novelty store, adult video store, adult live entertainment, adult motel, adult movie theater, adult theater, escort agency, massage parlor, nude model studio, or sexual encounter center.
SPECIFIED ANATOMICAL AREAS. Less than completely and opaquely covered human genitals, pubic region, buttock, or female breast below a point immediately above the top of the areola; or human male genitals in a discernibly turgid state, even if completely and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES. Human genitals in a state of sexual stimulation or arousal; sexual intercourse or sodomy; or fondling or other erotic touching of human genitals, pubic region, buttock, or female breast, including masturbation.
(D) Location of sexually oriented businesses. No sexually oriented business may be operated within 2,000 feet of the following:
(1) Another sexually oriented business;
(2) An entertainment business that is oriented primarily towards children or family entertainment;
(3) Premises licensed pursuant to the alcoholic beverage control regulations of the state;
(4) A church, synagogue, mosque, temple, or building, which is used primarily for religious worship and related religious activities;
(5) A public or private school and/or a facility providing child care and/or preschool services for more than four individuals;
(6) A public or community park or recreational area including, but not limited to, a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, wilderness areas, or other similar public land within the county that is maintained for park and/or recreational purposes;
(7) A motel, hotel, travel lodge, or bed and breakfast establishment; or
(8) A truck stop or rideshare/commuter parking facility.
(E) Regulations pertaining to the exhibition of sexually explicit films, videos, or live entertainment. A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises a film, video cassette, live entertainment, or other video reproduction that depicts specified sexual activities or specified anatomical area, shall comply with the following requirements.
(1) An application for approval of the sexually oriented business shall be accompanied by a diagram of the premises specifying the location of one or more managers’ stations, which shall not exceed 32 square feet of floor area each, and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. The diagram shall be oriented to the north or to a designated street or object and shall be drawn to a designated scale, 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 six inches.
(2) No alteration in the configuration or location of a manager’s station shall be made without the prior approval of the county.
(3) The operator of the sexually oriented business shall ensure that at least one employee is situated in each manager’s station at all times that any patron is present inside the premises.
(4) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager’s station of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. If the premises has two 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 one of the manager’s stations. The view required in this division (E)(4) must be by direct line of sight from the manager’s station.
(5) Restrooms shall not contain video reproduction equipment.
(6) The operator of the sexually oriented business shall ensure that the view area specified in division (E)(4) above remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks, or other materials at all times, to ensure that no patron is permitted access to any area of the premises which has been designated on the submitted diagram as an area in which patrons will not be permitted.
(7) The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access to an illumination of not less than five footcandles as measured at the floor level.
(8) The operator of the sexually oriented business shall ensure that the illumination described above is maintained at all times that any patron is present in the premises.
(9) The operator of the sexually oriented business shall not allow openings for any kind to exist between viewing booths.
(10) The operator of the sexually oriented business shall, during each business day, regularly inspect the walls between the viewing booths to determine if any opening of holes exist.
(11) The operator of the sexually oriented business shall cause all floor coverings in viewing booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting.
(12) The operator of the sexually oriented business shall cause all wall surfaces and ceiling surfaces in viewing booths to be constructed of, or permanently covered by, nonporous, easily cleanable material. No wood, plywood composition board, or other porous material shall be used within 48 inches of the floor.
(F) Regulations pertaining to escort agencies.
(1) An escort agency shall not employ any person under the age of 18 years.
(2) An escort agency shall not agree to act as an escort for any person under the age of 18 years.
(G) Regulations pertaining to nude model studios.
(1) A nude model studio shall not employ any person under the age of 18 years.
(2) A nude model studio shall not place or permit a bed, sofa, or mattress in any room on the premises, except that a sofa may be placed in a reception room open to the public.
(H) Additional regulations concerning public nudity.
(1) The operator of a sexually oriented business shall not allow persons to appear in a state of nudity or depict specified sexual activities.
(2) The operator of a sexually oriented business shall not allow persons to appear in a seminude condition unless the person is an employee who, while seminude, shall be at least ten feet from any patron or customer and on a stage at least two feet from the floor.
(3) The operator of a sexually oriented business shall not allow employees to solicit any pay or gratuity from any patron or customer of for any patron or customer to pay or give any gratuity to any employee, while said employee is seminude in the sexually oriented business.
(4) The operator of a sexually oriented business shall not allow employees, while seminude, to touch a customer or the clothing of a customer.
(I) Additional regulations concerning signs and other visible messages. Signs and other visible messages pertaining to sexually oriented businesses shall comply with the following standards, in addition to those contained in § 157.106.
(1) Sexually oriented business sign messages shall not include any textual descriptions or any graphic/pictorial depictions of obscene materials and/or services available on the premises of the business.
(2) Other visible messages that are visible or intended to be visible from outside a sexually oriented business property (such as on or within doors or windows) shall not display obscene materials, items, publications, pictures, films, or printed material available on the premises; or pictures, films, or live presentations of persons performing and/or obscene services offered on the premises.
(J) Prohibition against children in a sexually oriented business. Persons under the age of 18 years are not allowed on the premises of a sexually oriented business.
(K) Hours of operation.
(1) No sexually oriented business, except for an adult motel, shall remain open later than 11:00 p.m.
(2) Monday through Saturday, sexually oriented businesses shall not open for business prior to 9:00 a.m.
(3) On Sundays, sexually oriented businesses shall not open for business prior to 12:00 p.m.
(L) Exemptions. It is a defense to prosecution under division (H) above 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; a college, junior college, or university supported entirely or partly by taxation;
(2) 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
(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 three days in advance of the class; and
(c) Where no more than one nude model is on the premises at any one time.
(Ord. passed 11-9-1995; Ord. passed 11-8-2007) Penalty, see § 157.999