For the purpose of this chapter, 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 or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors or other image-producing devices are regularly maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are characterized by their emphasis upon matter exhibiting “specified sexual activities” or “specified anatomical areas”.
ADULT BOOKSTORE or ADULT VIDEO STORE. A commercial establishment which, as one of its principal purposes, offers for sale or rental for any form of consideration any one or more of the following: books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides or other visual representations, which are characterized by their emphasis upon the display of “specified sexual activities” or “specified anatomical areas”.
ADULT CABARET. A nightclub, bar, juice bar, restaurant, bottle club or similar commercial establishment, regardless of whether alcoholic beverages are served, which regularly features:
(1) Persons who appear nude or semi-nude;
(2) Live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities”; or
(3) Films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the exhibition or display of “specified sexual activities” or “specified anatomical areas”.
ADULT MOTEL. A motel, hotel or similar commercial establishment which:
(1) Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motions pictures, video cassettes, other photographic reproductions or live performances which are characterized by the display of “specified sexual activities” or “specified anatomical areas”; and which advertises the availability of such material by means of a sign visible from the public right-of-way, or by means of any on- or off-premises advertising, including, but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television;
(2) Offers a sleeping room for rent for a period of time that is less than ten hours; or
(3) Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than ten hours.
ADULT MOTION PICTURE THEATER. A commercial establishment where films, motion pictures, videocassettes, slides or similar photographic reproductions, which are characterized by their emphasis upon the display of “specified sexual activities” or “specified anatomical areas”, are regularly shown to more than five persons for any form of consideration.
ART MUSEUM and/or ART GALLERY. Any structure where paintings, sculptures, pottery, lithograph and anything of artistic expression is shown, excluding live models in a state of nudity or semi-nudity.
CHARACTERIZED. To describe the essential character or quality of an item. As applied in this chapter, no business shall be classified as a sexually-oriented business by virtue of showing, selling or renting materials rated NC-17 or R by the Motion Picture Association of America.
CITY. The City of Worthing, South Dakota.
CITY COMMISSION. The Commissioners of the City of Worthing, South Dakota.
CITY FINANCE OFFICER. The City of Worthing Finance Officer.
DAY-CARE CENTER. A facility or home, whether situated within the city or not, that provides care, training, education, custody, treatment or supervision of children from more than one unrelated family, on a regular basis for part of a day, without transfer of legal custody or guardianship, regardless of whether or not the facility is operated for a profit or charges for the services it offers.
EMPLOY, EMPLOYEE and EMPLOYMENT. Describes and pertains to any 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. EMPLOYEE does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises.
ESTABLISH or ESTABLISHMENT. Includes any of the following:
(1) The opening or commencement of any sexually-oriented business as a new business;
(2) The conversion of an existing business, whether or not a sexually-oriented business, to any sexually-oriented business; and
(3) The addition of any sexually-oriented business to any other existing sexually-oriented business.
HEARING BODY. The City Commission of the City of Worthing, South Dakota.
INFLUENTIAL INTEREST. Any of the following:
(1) The actual power, directly or indirectly, to control the operation, management or policies of a business or entity;
(2) Ownership of a financial interest of 35% or more of a business or of any class of voting securities of a business; or
(3) Holding an office (e.g., president, vice president, secretary, treasurer and the like) or directorship in a legal entity which operates the sexually-oriented business.
LICENSEE. A person, whose name a license to operate a sexually-oriented business has been issued, as well as the individual or individuals listed as an applicant on the application for a sexually-oriented business license. In the case of an “employee”, it shall mean the person whose name the sexually-oriented business employee license has been issued.
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, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola.
OPERATE or CAUSE TO OPERATE. To cause to function or to put or keep in a state of doing business. OPERATOR means any person on the premises of a sexually-oriented business who causes the business to function or who puts or keeps in operation the business or who is authorized to manage the business or exercise overall operational control of the business premises. A person may be found to be operating, or causing to be operated, a sexually-oriented business whether or not that person is an owner, part-owner or licensee of the business.
PERSON. Individual, proprietorship, partnership, corporation, association or other legal entity.
PREMISES. The real property upon which the sexually-oriented business is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the sexually-oriented business, the grounds, private walkways and parking lots and/or parking garages adjacent thereto, under the ownership, control or supervision of the licensee, as described in the application for a business license pursuant to § 112.20.
PRINCIPAL PURPOSE. The commercial establishment:
(a) Has a substantial portion of its displayed merchandise which consists of said items;
(b) Has a substantial portion of the wholesale value of its displayed merchandise which consists of said items;
(c) Has a substantial portion of the retail value of its displayed merchandise which consists of said items;
(d) Derives a substantial portion of its revenues from the sale or rental, for any form of consideration of said items; or
(e) Maintains a substantial section of its interior business space for the sale or rental or said items.
REGULARLY. The consistent and repeated doing of the act so described.
SEMI-NUDE MODEL STUDIO.
(1) A place where persons regularly appear in a state of semi-nudity for money or any form of consideration in order to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons.
(2) This definition does not apply to any place where persons appearing in a state of semi-nudity did so in a modeling class operated:
(a) By a college, junior college or university supported entirely or partly by taxation;
(b) By a private college or university which maintains and operates educational programs in which credits are transferable to college, junior college or university supported entirely or partly by taxation; or
(c) In a structure:
1. Which has no sign visible from the exterior of the structure and no other advertising that indicates a semi-nude person is available for viewing; and
2. Where, in order to participate in a class, a student must enroll at least three days in advance of the class.
SEXUAL DEVICE. Any three-dimensional object designed and marketed for stimulation of the male or female human genital organ or anus or for sadomasochistic use or abuse of oneself or others and shall include devices such as dildos, vibrators, penis pumps and physical representation of the human genital organs. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy.
SEXUAL DEVICE SHOP. A commercial establishment that regularly features sexual devices. Nothing in this definition shall be construed to include any pharmacy, drug store, medical clinic or any establishment primarily dedicated to providing medical or healthcare products or services, nor shall this definition be construed to include commercial establishments which do not restrict access to any portion of their premises by reason of age.
SEXUAL ENCOUNTER CENTER. A business or commercial enterprise that, as one of its principal business purposes, purports to offer, for any form of consideration, physical contact in a form of wrestling or tumbling between persons of the opposite sex when one or more of the persons is semi-nude.
SEXUALLY-ORIENTED BUSINESS. An “adult bookstore or adult video store”, an “adult cabaret”, an “adult motel”, an “adult motion picture theater”, a “semi-nude model studio”, “sexual device shops” or a “sexual encounter center”.
SPECIFIED ANATOMICAL AREAS. Includes:
(1) Less than completely and opaquely covered: human genitals and pubic region, buttock and female breast below a point immediately above the top of the areola; and
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
SPECIFIED CRIMINAL ACTIVITY. Any of the following specified crimes for which less than five years elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date:
(1) A sex crime, as defined in SDCL § 22-24B-1;
(2) Prostitution or promotion of prostitution, as defined in SDCL §§ 22-23-1 and 22-23-2;
(3) An obscenity or public indecency offense, as defined in SDCL Chapter 22-24;
(4) A controlled substance offense, as defined in SDCL § 22-42-2;
(5) Attempt, conspiracy or solicitation to commit any of the foregoing offenses; or
(6) Any offense in another jurisdiction that, had the predicate act(s) been committed in the state, would have constituted any of the foregoing offenses.
SPECIFIED SEXUAL ACTIVITY. Any of the following:
(1) Intercourse, oral copulation, masturbation or sodomy; or
(2) Excretory functions as a part of or in connection with any of the activities described in division (1) above.
SUBSTANTIAL. At least 35% of the item(s) so modified.
TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY-ORIENTED BUSINESS. Any of the following:
(1) The sale, lease or sublease of the business;
(2) The transfer of securities which constitute an influential interest in the business, whether by sale, exchange or similar means; or
(3) The establishment of a trust, gift or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
VIEWING ROOM. The room, booth or area where a patron of a sexually-oriented business would ordinarily be positioned while watching a film, videocassette or other video reproduction.
(Ord. 226, passed 11-24-2005)