Auburn City Zoning Code
18.74 Location
of Sexually Oriented Businesses
18.74.010 Purpose.
The purpose of this chapter is to restrict the location of sexually oriented businesses thereby protecting the public health, safety, morals and general welfare of Auburn. (Ord. 5835 § 1, 2004; Ord. 4886 § 2, 1996.)
18.74.020 Definitions.
A. “Sexually oriented business” means any commercial premises that offers the sale, exchange, renting, loaning, trading, transferring or providing for viewing activities defined as adult entertainment or adult entertainment merchandise or which includes but is not limited to those businesses defined as follows:
1. “Adult bathhouse,” which means a commercial bathhouse that excludes minors (non-adults) by virtue of age from the premises; provided, that this definition shall not include facilities that offer “adult-only” sessions or programs as a part of their athletic or recreational programs or activities.
2. “Adult book and video establishment” means a commercial establishment that has 10 percent or more of the value of all its stock in trade, consisting of books, magazines, periodicals or other printed matter; and/or photographs, films, motion pictures, video cassettes, slides, or other visual representations that are characterized by an emphasis on the depiction or description of “specified sexual activities” or “specified anatomical areas” as defined in this section.
3. “Adult cabaret,” which means a commercial establishment that presents dancers, strippers, male or female impersonators, or similar types of entertainment and which excludes minors (non-adults) by virtue of age from the premises.
4. “Adult entertainment facility,” which means any establishment where the business or activity of the facility includes adult entertainment, as defined in ACC 5.30.020, and/or includes any of the following:
a. Any exhibition, performance, dance or conduct of any type conducted in a premises where such exhibition, performance, or dance involves a person who is unclothed or in such costume, attire, or clothing as to expose any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or wearing any device or covering exposed to view which simulates the appearance of any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or human male genitals in a discernibly turgid state, even if completely and opaquely covered; or
b. Any exhibition, performance, dance or conduct of any type conducted in a premises where such exhibition, performance or dance is distinguished or characterized by a predominant emphasis on the depiction, description, simulation or relation to the following specified sexual activities:
i. Human genitals in a state of sexual stimulation or arousal;
ii. Acts of human masturbation, sexual intercourse or sodomy; or
iii. Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast; or
c. Any exhibition, performance or dance which is intended to sexually stimulate any member of the public and which is conducted in a premises where such exhibition, performance or dance is performed for, arranged with, or engaged in with fewer than all patrons on the premises at that time, with separate consideration paid, either directly or indirectly, for such performance, exhibition or dance. For purposes of example and not limitation, such exhibitions, performances or dances are commonly referred to as table dancing, couch dancing, taxi dancing or straddle dancing;
d. It is provided however that for the purposes of this chapter, adult entertainment activities do not include the following:
i. Plays, operas, musicals, or other dramatic works that are not obscene;
ii. Classes, seminars and lectures which are held for serious scientific or educational purposes and which are not obscene; or
iii. Exhibitions, performances, expressions or dances that are not obscene;
It is further provided that these exemptions shall not apply to the sexual conduct defined in ACC 5.30.020(O), or the sexual conduct described in RCW 7.48A.010(2)(b)(ii) and (iii).
5. “Adult live entertainment establishment” shall mean a commercial premises to which a member of the public is invited or admitted and where an entertainer provides live adult entertainment to a member of the public on a regular basis or as a substantial part of the premises activity.
6. “Adult massage parlor” means a commercial establishment in which massage or other touching of the human body is provided for a fee and which excludes minors (non-adults) by virtue of age from the premises.
7. “Adult motion picture theater” means an enclosed building or outdoor drive-in theaters used for presenting motion picture films, video cassettes, cable television, or any other such visual media, distinguished or characterized by an emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas,” as defined herein, for observation by patrons therein.
8. “Adult retail establishment” means an establishment such as any bookstore, adult novelty store, adult video store, or other similar commercial establishment, business, service, or portion thereof, which, for money or any other form of consideration, provides adult entertainment material, as defined in this section, and which at least 10 percent of its stock-in-trade for sale, exchange, rental, loan, trade, transfer, and/or provision for viewing or use off the premises of the adult retail establishment as defined in this chapter. There shall be a rebuttable presumption that a business is an adult retail establishment if either: (1) the dollar value of on-site inventory of adult entertainment material equals at least 10 percent of the business’ entire inventory; (2) at least 10 percent of the establishment’s revenue is derived from adult entertainment material; or (3) at least 10 percent of the total floor area of the business is devoted to displaying and/or supporting the adult entertainment material. In determining whether or not the presumption is rebutted, the director may consider the following factors, which are not conclusive:
Whether minors are prohibited from access to the premises of the establishment due to the adult entertainment nature of the inventory;
Whether the establishment is advertised, marketed, or held out to be an adult merchandising facility;
Whether adult entertainment merchandise is an establishment’s primary or one of its principal business purposes; or
An establishment may have other principal business purposes that do not involve the offering for sale or rental of adult entertainment merchandise and still be categorized as an adult retail establishment. Such other business purposes will not serve to exempt such establishments from being categorized as an adult retail establishment so long as one of its business purposes is offering for sale or rental, for some form of consideration, the specified adult entertainment merchandise. The director shall have full discretion to give appropriate weight to the factors set forth above as well as other factors considered depending on the particular facts and circumstances of each application.
9. “Adult sauna parlor” means a commercial sauna establishment, which excludes minors (non-adults) by virtue of age from the premises.
10. “Panoram or peepshow” means any device which, upon the insertion of a coin or by any other means of payment, including membership fee or other charge, exhibits or displays a picture or view by film, video or other means, including observation of live performances depicting, describing or relating to “specified sexual activities” or “specified anatomical areas,” as defined herein.
B. “Adult entertainment material” means any books, magazines, cards, pictures, periodicals or other printed matter, or photographs, films, motion pictures, video tapes, slides, or other photographic reproductions, or visual representations, CD ROMs, DVDs, disks, electronic media, or other such media, or instruments, devices, equipment, paraphernalia, toys, novelties, games, clothing or other merchandise or material, which are characterized by an emphasis on the depiction, description or simulation of “specified anatomical areas” or “specified sexual activities,” as defined by this title. This includes any instrument, device, or paraphernalia that are designed for use in connection with any specified sexual activities.
C. “Adult uses” means any establishment meeting the definition of an adult entertainment establishment or any establishment that otherwise provides adult entertainment or adult entertainment merchandise as defined herein.
D. “Specified anatomical areas” means:
1. Less than completely and opaquely covered human genitals, 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.
E. “Specified sexual activities” means:
1. Human genitals in a state of sexual stimulation or arousal;
2. Acts of human masturbation, sexual intercourse or sodomy;
3. Fondling or other erotic touching of human genitals, pubic region, buttock or female breast;
4. Excretory functions as part of or in connection with any of the activities set forth in this subsection. (Ord. 5835 § 1, 2004.)
18.74.030 Prohibited in certain areas.
A. Sexually oriented business uses are prohibited:
1. Within 1,000 feet of any property zoned for any residential use or of any property used for any single-family or multiple-family residential use; provided, that for the purposes of this section, properties located in the M-1 light industrial zone are not zoned for residential use, notwithstanding the fact that residential use may be allowed or permitted in this zone;
2. Within 1,000 feet of any public or private elementary or secondary school;
3. Within 1,000 feet of any child daycare center, child care service, nursery, preschool or community youth center;
4. Within 1,000 feet of any church or other facility or institution used primarily for religious purposes;
5. Within 1,000 feet of any public park, open space or other similar place where children are likely to congregate;
6. Within 1,000 feet of any large enclosed multi-business retail complex that caters as a significant part of its business to children. For the purposes hereof, a large enclosed multi-business retail complex that caters as a significant part of its business to children means a covered complex of retail and service business that include at least 30 businesses, and that have any combination of amenities geared to children, including but not limited to: attractions designed for use by children, regularly scheduled events for children, and designated play child areas; and
7. Within 1,000 feet of any other sexually oriented business use.
B. As used herein, the distances shall mean the straight-line distance between the edge or corner of the property on which the sexually oriented business use is located to the nearest edge or corner of the property of another sexually oriented business use or any of the sensitive uses set forth above; provided, that if there is more than one business or tenancy on the property, then the distances shall mean the straight-line distance between the edge or corner of that portion of the property (or tenancy) on which the sexually oriented business use is located to the nearest edge or corner of the property of another sexually oriented business use or any of the sensitive uses set forth above.
C. It is provided, however, that any sexually oriented business operating within the city of Auburn as of the initial effective date of the ordinance codified in this chapter shall constitute a pre-existing nonconforming use pursuant to ACC 18.04.650. (Ord. 6120 § 2, 2007; Ord. 5835 § 1, 2004; Ord. 4886 § 2, 1996. Formerly 18.74.020.)
18.74.040 Liability.
Nothing in this chapter is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use which violates any city regulation or statute of the state of Washington regarding public nuisances, sexual conduct, lewdness or obscene or harmful matter or the exhibition or public display thereof. (Ord. 5835 § 1, 2004.)
18.74.050 Violations and civil penalties.
Violation of the use provisions of this chapter shall be a civil infraction and subject to enforcement through Chapter 1.25 ACC. In addition thereto, violation of the use provisions of this chapter is declared to be a public nuisance per se and shall be subject to abatement as a public nuisance and/or a moral nuisance. Furthermore, the city is authorized and empowered to employ any and all other enforcement and abatement tools resources, strategies, remedies and actions available under the law for such violations and/or circumstances, including but not limited to business license revocation. (Ord. 5835 § 1, 2004.)
18.74.060 Construction.
If any portion of this chapter is deemed to be in conflict or inconsistent with any other provisions of the city code, including but not limited to its zoning regulations, such other provisions shall be construed in conformity herewith; provided, that if such other provisions are not able to be so construed, the provisions of this chapter shall control, and such other provisions shall be deemed modified to conform herewith, for the purposes of this chapter only. (Ord. 5835 § 1, 2004.)