(A) Purpose. It is the purpose of this section to regulate sexually oriented businesses in order to promote the health, safety, morals and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the city. 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 nor effect of this section 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.
(B) Findings. Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the City Council, and on findings incorporated in the cases of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), City of Erie v. Pap’s A.M., 120 S. Ct. 1382 (2000), and on studies in other communities, including, but not limited to: Phoenix, Arizona; Minneapolis, Minnesota; St. Paul, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; Beaumont, Texas; Dallas, Texas; Newport News, Virginia; Bellevue, Washington; New York, New York; and St. Croix County, Wisconsin; and also on findings from the Report of the Attorney General’s Working Group on the Regulation of Sexually Oriented Businesses (June 6, 1989, State of Minnesota), the City Council finds:
(1) Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the operators of the establishments. Further, there is presently no mechanism to make the owners of these establishments responsible for the activities that occur on their premises;
(2) Certain employees of sexually oriented businesses, defined in this section as adult theaters and adult cabarets, engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments;
(3) Sexual acts, including masturbation and oral and anal sex, occur at sexually oriented businesses, especially those which provide private or semi-private booths or cubicles for viewing films, videos or live sex shows;
(4) Offering and providing such space encourages such activities, which creates unhealthy conditions;
(5) Persons frequent certain adult theaters, adult arcades and other sexually oriented businesses for the purpose of engaging in sex within the premises of such sexually oriented businesses;
(6) At least 50 communicable diseases may be spread by activities occurring in sexually oriented businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella infections;
(7) Since 1981 and to the present, there has been an increasing cumulative number of reported cases of AIDS (acquired immunodeficiency syndrome) caused by the human immunodeficiency virus (HIV) in the United States: 600 in 1982; 2,200 in 1983; 4,600 in 1984; 8,555 in 1985, and 253,448 through December 31, 1992. The Center for Disease Control indicates that of the 753,907 AIDS cases reported in the United States through June of 2000, Arizona accounted for 7,234 of those cases. At the end of 1999, there were 3,195 people reported to be living with AIDS in Arizona;
(8) As of December 2001, there have been 7,966 reported cases of AIDS in the state;
(9) Since 1981 and to the present, there has been an increasing cumulative number of persons testing positive for the HIV antibody test in Yuma County, Arizona;
(10) The number of cases of early (less than one year) syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982 and 45,200 through November 1990;
(11) The number of cases of gonorrhea in the United States reported annually remains at a high level, with over one-half million cases being reported in 1990;
(12) In his report of October 22, 1986, the Surgeon General of the United States has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components and from an infected mother to her newborn;
(13) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts;
(14) Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy, and in part, because of the unregulated nature of the activities and the failure of the owners and the operators of the facilities to self-regulate those activities and maintain those facilities;
(15) Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view “adult oriented films”;
(16) The findings noted in divisions (B)(1) through (B)(15) above raise substantial governmental concerns;
(17) Sexually oriented businesses have operational characteristics, which should be reasonably regulated in order to protect those substantial governmental concerns;
(18) A reasonable licensing procedure is an appropriate mechanism to place the burden of reasonable regulation on the owners and operators of the sexually oriented businesses. Further, such a licensing procedure will place an incentive on the operators to see that the sexually oriented business is run in a manner consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of the city. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein;
(19) Removal of doors on adult booths and requiring sufficient lighting on premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult theatres;
(20) Requiring licensees of sexually oriented businesses to keep information regarding current employees and certain past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments;
(21) The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually oriented business, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases;
(22) In the prevention of the spread of communicable diseases, it is desirable to obtain a limited amount of information regarding certain employees who may engage in the conduct, which this section is designed to prevent, or who are likely to be witnesses to such conduct;
(23) The fact that an applicant for an adult use license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this section;
(24) The barring of such individuals from the management of adult uses for a period of years serves as a deterrent to and prevents conduct which leads to, the transmission of sexually transmitted diseases; and
(25) The general welfare, health, morals and safety of the citizens of the city will be promoted by the enactment of this section.
(C) Location requirements.
(1) Adult oriented businesses may be located in Limited Commercial (B-1), General Commercial (B-2), Light Industrial (L-I) or Heavy Industrial (H-I) Zoning Districts as permitted by the appropriate district regulations of this chapter. However, no adult oriented business shall be located within 1,000 feet of:
(a) A church or synagogue or temple;
(b) A public or private elementary or secondary school;
(c) A residential district;
(d) A lot used for a residential use;
(e) Another adult oriented business;
(f) A public park; or
(g) A public or private child day care center, large or small preschool facility.
(2) For purposes of this section, measurement shall be made in a straight line, without regard to intervening structures or objects from the nearest portion of the lot used for the adult oriented business and the nearest property line of the lot used for the purposes enumerated above.
(D) Number in building. No more than one adult oriented business may be located in the same building.
(E) Nonconformity. Any adult oriented business lawfully operating on the effective date of this chapter that is in violation of divisions (C) and (D) above of this section shall be a nonconforming use. If two or more adult oriented businesses are within 1,000 feet of one another, and otherwise in a permissible location, the adult oriented business which was first established and continually operating at a particular location is the conforming use and the latter established business is nonconforming. In any event, no increase in the floor area of any nonconforming adult oriented business shall be permitted in any building or on any lot containing another adult oriented business or a dwelling unit.
(F) Encroachment of other uses. An adult oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the lawful establishment of the adult oriented business, of a use enumerated in division (C) above of this section.
(G) Variance to location requirements.
(1) An applicant may make application for a variance from the location requirement of division (C) above of this section above in the same manner as found in § 21 of City Ordinance No. 583, as amended.
(2) The Board of Adjustment, in making its finding about a variance request from the location requirement of division (C) above of this section, shall, as part of the condition in § 21(C)(3)(d) of City Ordinance No. 583, consider the following:
(a) The location of the proposed adult oriented business will not downgrade the property values or quality of life in the adjacent areas or encourage the development of urban blight; and
(b) The location of an additional adult oriented business in the area will not be contrary to any program of neighborhood conservation, nor will it interfere with any efforts of urban renewal, restoration or historic preservation.
('80 Code, App. A, § 124) (Ord. 583, passed 9-16-1952; Ord. 2515, passed 2-20-1991; Ord. 2687, passed 1-4-1995; Ord. O2003-22, passed 5-21-2003; Ord. O2010-32, passed 7-7-2010) Penalty, see § 154-999