The purpose and intent of the Cosmopolis city council in enacting this chapter is to maintain and protect the health, safety and welfare of its citizens, through land use regulation of the location and operations of adult entertainment uses and adult arcade premises. The land use regulations set forth herein are intended to prevent health and safety problems and dangerous and unlawful conduct in and around such uses and premises.

(Ord. 1061 (part), 1998).

Based on public testimony and other evidence and information presented before it, the Cosmopolis city council makes the following findings of fact:

(1)

Many cities, including Seattle and Tacoma, have experienced negative secondary impacts from adult entertainment land uses. The skid row effect is one of these secondary impacts, and is evident in certain parts of both cities. Such an effect would be significantly magnified in Cosmopolis due to the difference in size and characteristics of the city;

(2)

Certain conduct occurring on premises offering adult entertainment creates secondary impacts that are detrimental to the public health, safety and general welfare of the citizens of the city, and therefore such conduct must be regulated as provided herein;

(3)

Regulation of the adult entertainment industry is necessary because in the absence of such regulation significant criminal activity has historically and regularly occurred;

(4)

Businesses providing adult entertainment are increasingly associated with ongoing prostitution, disruptive conduct and other criminal activity. Such businesses are currently not subject to effective regulation and constitute an immediate threat to the public peace, health and safety. The hours of operation of such businesses have a significant impact on the occurrence of criminal activity;

(5)

Due to the information presented regarding the connection of prostitution with adult entertainment, there is concern over sexually transmitted diseases, which is a legitimate health concern of the city and thus requires regulation of adult entertainment businesses in order to protect the health, safety and well-being of the public;

(6)

No evidence has been presented to show that the location of adult entertainment land uses within the city will improve the commercial viability of the community, or will otherwise have a beneficial effect, and not have a detrimental effect;

(7)

The city may rely on the experiences and studies of other cities and organizations in assessing the need for regulation of adult entertainment land uses, operations and licensing types of regulation;

(8)

Regulation of adult entertainment land uses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists, rather than in response to an existing problem;

(9)

The city comprehensive land use plan strongly supports that adjacent land uses be compatible;

(10)

Adult entertainment land uses are incompatible with certain land uses such as residences, parks, day care facilities, libraries, youth centers and schools (including nursery schools and preschools);

(11)

Increased levels of criminal activities occur in the vicinity of adult entertainment land uses;

(12)

Adjacency of residential uses to adult entertainment land uses reduces the value of residential property;

(13)

Adult entertainment land uses are perceived to negatively impact the character of established neighborhoods;

(14)

Adult entertainment land uses, which are commercial in nature, should be additionally confined to those commercial zones in which similar "non-adult entertainment" land uses are permitted;

(15)

Businesses providing adult entertainment are increasingly associated with ongoing prostitution, illegal drug transactions, disruptive conduct, and other criminal activity which is currently not subject to effective regulation and which constitutes a threat to the public peace, health, welfare and safety; and

(16)

Utilizing five hundred feet as the requisite spacing between adult entertainment land uses and residences (excluding nonconforming residences located in Mixed Use (MU)), parks, libraries, day care facilities, youth centers and schools (preschools or nursery schools through twelfth grade) in existence or proposed and vested by the effective date of the ordinance codified in this chapter, will provide minimal separation and buffering while providing a reasonable amount of land within the city to be available for adult entertainment land uses.

(Ord. 1061 (part), 1998).

For the purpose of this chapter, unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:

"Adult entertainment" means any exhibition, performance, dance of any type or other performance, not exempt from this chapter, where such entertainment involves a person appearing or performing (either live or recreated) who:

(1)

Is unclothed or in such attire, costume or clothing as to expose to view any of the nipple or areola of the female breast, vulva or (without regard to gender) any portion of the pubic region, anus, or genitals; or

(2)

Touches, caresses or fondles the breasts, buttocks, anus, genitals or pubic region of themselves or a patron, or permits the touching, caressing or fondling of their own breasts, buttocks, anus, genitals or pubic region by a patron, another employee, or anyone else, with the intent to sexually arouse or excite.

"Adult entertainment premises" or "adult entertainment business" means any premises to which the public, patrons, or members are invited or admitted and where adult entertainment is provided to the same on a regular basis or as a substantial part of the business operation. For purposes of this definition, "on a regular basis" means that adult entertainment is provided on the premises at least five days per month during no less than six months of the year and "as a substantial part of the business operation" means that at least twenty-five percent of the gross revenue generated from the business results from adult entertainment and from activities distinguished or characterized by an emphasis on matters depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas," including but not limited to sale or rental of sexually explicit materials, or operation of an adult panorama or arcade or peep show as defined in the Cosmopolis Municipal Code.

"Adult retail establishment" means any premises in which twenty-five percent of the "stock in trade" (as defined herein) consists of merchandise distinguished or characterized by the depiction, description, simulation, or relation to "specified sexual activities" or "specified anatomical areas." The term "merchandise," as used above includes but is not limited to the following: books, magazines, posters, cards, pictures, periodicals, or other printed matter; prerecorded videotapes, discs, film or other such medium, instruments, devices, equipment, paraphernalia or other such products.

"City clerk" means the city clerk or his/her designee.

"Employee" means any and all persons, including managers, entertainers and independent contractors providing adult entertainment, who work in or at or render any services related to, the operation of an adult entertainment premises.

"Entertainer" means any person who provides adult entertainment for an adult entertainment premises as defined in this section, whether or not a fee is charged or accepted for entertainment.

"Entertainment" means any exhibition or dance of any type, pantomime, modeling or any other performance.

"Manager" means any person who manages, directs, administers, or is in charge of the affairs and/or conduct of any portion of any activity involving adult entertainment occurring at any adult entertainment premises.

"Massage" means the method, art or science of treating the human body for hygienic, remedial or relaxational purposes by rubbing, stroking, kneading, tapping, rolling or manipulating the human body of another with the hands, or by any other agency or instrumentality.

Manipulation of the human body in the course of the practice of medicine, surgery, osteopathy, chiropractic, chiropody, naturopathy, dentistry, nursing, physical therapy, optometry or any other of the healing arts by persons licensed by the state to practice such healing arts is not included in the term "massage" as used herein.

"Massage parlor" means any premises where massages are given or furnished for, or in expectation of any fee, compensation or monetary consideration, except:

(1)

Facilities adjunct to athletic clubs, health clubs, medical facilities, hotels, motels or beauty salons; and

(2)

Enterprises licensed by the state and operating as approved home occupations.

"Nudity" means unclothed, or the showing of the human genitals, pubic region, vulva or anus with less than a fully opaque covering, the showing of any female breast with less than a fully opaque covering of the nipple or areola, or the showing of covered male genitals in a discernible turgid state.

"Obscenity" means any matter:

(1)

Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; or

(2)

Which explicitly depicts or describes patently offensive representations or descriptions of:

(A)

Ultimate sexual acts, normal or perverted, actual or simulated; or

(B)

Masturbation, fellatio, cunnilingus, bestiality, excretory functions, or lewd exhibition of the genitals or genital areas; or

(C)

Violent or destructive sexual acts, including but not limited to human or animal mutilation, dismemberment, rape or torture;

(D)

Has a dominant theme which appeals to the prurient interests of minors in sex; which is patently offensive because it affronts contemporary community standards relating to the descriptions or representation of sexual matters or sadomasochistic abuse;

(3)

Which, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political or scientific value.

"Operator" means any person operating, conducting or maintaining an adult entertainment business.

Panoram or Arcade Device, Adult. "Adult panoram or arcade device" means a device which exhibits or displays for observation by a patron a picture or view from film or videotape or similar means which is distinguished or characterized by matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas," as defined herein.

"Person" means any individual, partnership, corporation, trust, incorporated or unincorporated association, marital community, joint venture, governmental entity, or other entity or group of persons however organized.

"Public place" means any area generally visible to public view and includes but is not limited to streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots and automobiles, whether moving or not.

"Specified anatomical areas" means:

(1)

Less than completely and opaquely covered:

(A)

Human genitals or pubic region,

(B)

Human anus, or,

(C)

Female breast exposing any part of the nipple or areola; or

(2)

Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

"Specified sexual activities" means:

(1)

Human genitals in a state of sexual stimulation or arousal;

(2)

Acts of human masturbation, sexual intercourse, sodomy or bestiality; or

(3)

Fondling or other erotic touching of human genitals, pubic region, human anus or female breast.

"Stock in trade" means:

(1)

The dollar value of all merchandise, goods or services, readily available for purchase, rental, viewing or use by patrons of the establishment, excluding merchandise located in any store room, under the counter or in any other portion of the premises not open to patrons; or

(2)

The total volume of shelf space and display area in those portions of the establishment open to patrons.

"Theater" means a place of public assembly intended and expressly designed for the presentation of motion pictures, other than an adult theater.

Theater, Adult. "Adult theater" means a place of public assembly at which motion pictures, slides, videos, films or any other method of visual media are presented which are distinguished or characterized by depicting, describing or relating to "specified sexual activities" or "specified anatomical areas," as defined in this section, for observation by patrons therein. This shall not include movies that have been rated G, PG-13, NC-13, NC-17, or R by Motion Picture Association of America.

(Ord. 1061 (part), 1998).

(a)

Adult entertainment which may include adult entertainment premises, adult retail establishments, adult arcades or panorams, adult motion picture theaters and massage parlors, are prohibited within five hundred feet of any residential land use zoning district including R57 and R100, and single or multiple family residence (excluding nonconforming residences located in mixed use (MU)) zones or any existing or proposed and vested public or private school (preschool or nursery school through twelfth grade), public park, day care facility, community youth center or library as of the effective date of the ordinance codified in this chapter. The city recognizes the importance of maintaining a certain percentage of land where adult entertainment businesses are authorized to locate. With that in mind, those zoning areas of the city stated herein that authorize as a permitted use the location of adult entertainment businesses, shall not require the buffers or setbacks from schools, public parks, day care facilities, community youth centers or libraries that locate in those areas after the effective date of the ordinance codified in this chapter. If after the adoption of the ordinance codified in this chapter, any school, day care facility, etc. should choose to locate in such a zoning area that authorizes adult entertainment premises, it shall do so at its own risk, without the protection of the buffers or setbacks required by this chapter.

(b)

The five hundred foot distance shall be a straight, horizontal line, measured from the nearest point of the lot proposed to be used for an adult entertainment use to the nearest point of:

(1)

A lot owned or leased, or that portion of a lot leased (excluding common areas), for an existing or proposed and vested single or multiple family residence, (excluding nonconforming residences located in mixed use (MU)), a public or private school (preschool or nursery school through twelfth grade) public park, day care facility, community youth center or library, that is proposed and vested or in existence as the effective date of the ordinance codified in this chapter.

(2)

A residential land use district R57 or R100.

(Ord. 1061 (part), 1998).

Whenever the proponent of a business or other land use subject to the locational and separation requirements set forth in this chapter feels that strict application of such requirements is not necessary to achieve an effective degree of physical separation between the proposed business or other land use and other uses in the vicinity, the proponents shall have the right to apply for a variance of such requirements upon payments of the fee for the variance application.

In determining when a variance should be granted, and if so, to what extent, the board of adjustment shall consider the following, in addition to the general criteria for variances established in Cosmopolis municipal code.

(a)

Topographical and other features of the land which provide actual separation (sufficiently similar to the proposed buffers or setbacks normally required by this chapter) between the proposed business or other land use and surrounding land uses;

(b)

Pedestrian and vehicular circulation patterns in the vicinity of the proposed activity; and

(c)

Any other fact or circumstance, which has a significant effect upon the need for the full separation distance (setbacks) required by this chapter.

If after considering these criteria, the board of adjustment finds that an effective separation between the proposed business or other land use and surrounding uses can be achieved without requiring the full distance of separation provided by this chapter, the (hearing examiner or) board shall determine the degree of variance to be allowed and shall grant such variance. Otherwise, the application for variance shall be denied.

(Ord. 1061 (part), 1998).

This chapter shall not be construed to prohibit:

(a)

Plays, operas, musicals, or other dramatic works that are not obscene;

(b)

Classes, seminars and lectures held for serious scientific or educational purposes that are not obscene; or

(c)

Exhibitions, performances, expressions or dances that are not obscene.

(Ord. 1061 (part), 1998).

(a)

It is the purpose of this chapter to provide for and promote the health, safety and welfare of the general public, and not to create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefited by the term of this chapter.

(b)

No provision nor any term used in this chapter is intended to impose any duty whatsoever upon the city or any of its officers or employees, for whom the implementation or enforcement of this chapter is discretionary and not mandatory.

(c)

Nothing contained in this chapter is intended to be nor shall be construed to create or form the basis for any liability on the part of the city, or its officers, employees or agents, for any injury or damage resulting from the failure of any owner, operator, manager, or other person in charge of such premises to comply with provisions of this chapter, or by reason or in consequence of any inspection, notice, order, certificate, permission or approval authorized or issued or done in connection with the implementation or enforcement pursuant to this chapter, or by reason of any action or inaction on the part of the city related in any manner to the enforcement of this chapter by its officers, employees or agents.

(Ord. 1061 (part), 1998).