It is recognized that adult entertainment facilities have certain objectionable side effects which render these adult facilities incompatible with residential and family-oriented uses, when the adult facilities are located directly adjacent to such uses. This chapter seeks to ensure that residential and family-oriented uses and adult entertainment facilities will be located in separate and compatible locations.

   For purposes of this chapter, the following terms are defined:

   1.   “Adult entertainment facilities” includes, but is not limited to, the following:

      A.   “Adult bookstore” means an establishment having, as the primary portion of its stock in trade, books, magazines, and other periodicals which are substantially devoted to the depiction of specified sexual activities and specified anatomical areas.

      B.   “Adult business” means any business or establishment where a specified sexual activity or specified anatomical area is displayed.

      C.   “Adult motel” means a motel or similar establishment offering public accommodations for any form of consideration which provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

      D.   “Adult movie theater” means any theater, arcade, or similar establishment where an enclosed building or open-air facility is used for presenting material in the form of motion picture film, video tape, or other similar means which is substantially devoted to the depiction of specified sexual activities and specified anatomical areas, for observation by persons therein.

      E.   “Adult newsrack” means any coin-operated machine or device which dispenses material substantially devoted to the depiction of specified sexual activities and specified anatomical areas.

      F.   “Adult nightclub” means any club, cabaret, nightclub, bar, restaurant, or similar establishment where an enclosed building or open-air facility is used for live performances which are characterized by the exposure of specified sexual activities and specified anatomical areas, for observation by persons therein.

   2.   “Specified anatomical area” means less than completely and opaquely covered human genitalia, mature human buttocks; and a mature human female breast below a point immediately above the top of the areola; and human male genitals in a discernibly turgid state - even if completely and opaquely covered.

   3.   “Specified sexual activities” means patently offensive acts, exhibitions, representations, depictions, or descriptions of:

      A.   Human genitals in a state of sexual stimulation or arousal;

      B.   Acts of human masturbation, sexual intercourse, or sodomy;

      C.   Fondling or other erotic touching of human genitals, pubic region, buttocks, or female breast; and

      D.   Minors engaged in a prohibited sexual act or simulation of a prohibited sexual act.

   1.   Prohibited Locations. No person, whether as principal or agent, clerk or employee, either alone or for any other person, or as an officer of any corporation, or otherwise, shall place, maintain, own, or operate any adult bookstore, adult movie theater, adult nightclub, adult motel, adult business, or adult newsrack in the following locations:

      A.   In any residential area of the City, including upon any sidewalk abutting upon such residential area;

      B.   Within 1,000 feet of any residentially zoned or used property, or any property designated on the City’s Comprehensive Plan as residentially oriented.

      C.   Within 1,000 feet of any parcel of real property upon which is located any of the following facilities:

         (1)   An elementary school, junior high school, or senior high school;

         (2)   A church which conducts religious programs;

         (3)   Park or recreational facilities operated and improved by the City, County, County Conservation Board, or State;

         (4)   Federal, State, County, City, or special district governmental offices;

         (5)   Supermarket or convenience market primarily engaged in the sale of food;

         (6)   Restaurant, fast-food or food establishment, catering to family trade.

      D.   Within 2,000 feet of any other adult entertainment facility, as defined herein. For the purpose of this section, “adult newsrack” means a single coin-operated device and not a machine with a double or triple dispensing capacity.

   2.   Measurement of Distance. The distance between any two adult entertainment facilities shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of each business. The distance between any adult entertainment facilities and any religious institution, school, public park, government office, supermarket, restaurant, or any property designated for residential use or used for residential purposes shall be measured in a straight line, without regard to intervening structures, from the closest property line of the adult entertainment facilities to the closest property line of the religious institution, school, public park, government office, supermarket, restaurant, or property designated for residential use or used for residential purposes.

   3.   Signs. All on-site signage shall conform to Chapter 159.

   4.   Viewing Area.

      A.   It is unlawful to maintain, operate, manage, or permit to be maintained, operated, or managed any adult theater or arcade in which the viewing areas are not visible from a continuous main aisle or are obscured by a curtain, door, wall, or other enclosure. For purposes of this section, “viewing area” means the area where the patron or customer would ordinarily be positioned while watching the performance, picture, show, or film.

      B.   It is unlawful for more than one person at a time to occupy any individually partitioned viewing area or booth.

      C.   It is unlawful to create, maintain, or permit to be maintained any holes or other openings between any two booths or individual viewing areas for the purpose of providing viewing or physical access between the booth or individual viewing areas.

      D.   The opening to the viewing area shall be from the main aisle.

   The owners of adult newsracks shall have their names, addresses, and telephone numbers clearly visible on each newsrack located within the City. If the identification is not clearly visible, that shall be grounds for immediate impoundment of the newsracks by the City.

   1.   Nonconforming Uses. The provisions of this Code of Ordinances dealing with nonconforming uses are not applicable to the location of adult newsracks existing on the effective date of the ordinance codified in this chapter, but thereafter the location of adult newsracks shall be subject to the nonconforming uses provisions of this Code of Ordinances.

   2.   Impoundment. An adult newsrack found in violation of this chapter may be impounded by any police officer or enforcement officer of the City after the following action have occurred:

      A.   A notice of violation has been affixed to the adult newsrack stating the section of this chapter which has been violated and stating that the adult newsrack will be impounded if the violation is not abated within seven days;

      B.   A notice of violation has been sent by certified mail, return receipt requested, to the owner of the adult newsrack as identified on the newsrack, if readable, stating the section of this chapter which has been violated and stating that the adult newsrack will be impounded if the violation is not abated within seven days;

      C.   The violation has not been abated within seven days after the posting of the notice of violation or the mailing of the certified letter, whichever occurs later;

      D.   The Police Department, or other enforcement officer, has presented to any magistrate affidavits or other evidence sufficient to show a prima facie violation of this chapter;

      E.   A magistrate has issued a written order permitting the impounding of the adult newsrack pursuant to this chapter.

   3.   Filing of Complaint. Whenever an adult newsrack is impounded, a complaint for violation of Section 126.03 must be filed within 14 days of the impounding. If a final appealable decision in such action is not rendered within 60 days after the date of filing this action, the complaint shall be dismissed; provided, however, no complaint shall be dismissed because a final appealable decision was not rendered within 60 days of the filing of the action if the defendant named therein is responsible for extending the judicial determination beyond the allowable time limit.

   4.   Redemption After Impoundment. The person who provides sufficient proof of ownership of such adult newsrack may have such newsrack, together with all moneys, if any, impounded, returned immediately after the filing of the complaint for violation of Section 126.03 upon application to the Police Department, or other enforcement officer. The person who provides sufficient proof of ownership of such adult newsrack may have the contents of such newsrack returned upon the date that a final appealable decision in such action is rendered or upon the date the action is dismissed, upon application to the Police Department, or the enforcement officer.

   It is recognized that adult newsracks may be jostled or inadvertently moved minor distances by third persons with a resulting violation of the provisions of Section 126.03. Notwithstanding any other provision of this chapter, such minimal distance violation, not exceeding five feet, shall not constitute a violation of this chapter, and the Police Department, or other enforcement officer, shall notify the owner of the adult newsracks by certified, return receipt requested, mail of the existence of the minimal distance requirements. Notwithstanding the provisions of this section, all adult newsracks shall comply with the encroachment permit provisions of this Code of Ordinances.

   Adult entertainment facilities in the City are permitted in accordance with the provisions of the Zoning Code.