It is the purpose and intent of this subchapter to regulate sex oriented businesses to promote the health, safety, morals and general welfare of the citizens of the town and to establish reasonable and uniform regulations to prevent any deleterious location and concentration of sex oriented businesses within the town, thereby reducing or eliminating the adverse secondary effects from such sex oriented businesses. The provisions of this subchapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sex oriented materials. Similarly, it is not the intent nor effect of this subchapter to restrict or deny access by the distributors and exhibitors of sex oriented entertainment to their intended market. Neither is it the intent nor effect of this subchapter to condone or legitimize the distribution of obscene material.

(Ord. § 606(A), passed 9-4-2008)

   For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

   ESTABLISHMENT. Includes any of the following:

      (1)   The opening or commencement of any such business as a new business;

      (2)   The conversion of an existing business, whether or not a sex oriented business, to any of the sex oriented businesses defined in this section;

      (3)   The addition of any of the sex oriented businesses defined in this section to any other existing sex oriented business; or

      (4)   The relocation of any such sex oriented business.

   NUDITY or STATE OF NUDITY.

      (1)   The appearance of human anus, genitals or female breast; or

      (2)   A state of dress which fails to opaquely cover a human anus, genitals or areola of the female breast.

   PATRON. A person invited or permitted to enter and remain upon the premises of a sex oriented business as defined in this section, whether or not for any form of consideration.

   PERSON. An individual, proprietorship, partnership, corporation, association or other legal entity.

   PUBLIC BUILDING. Any building owned, leased or held by the United States, the state, the county, the town, any special district, school district, or any other agency or political subdivision of the state or the United States, which building is used for governmental purposes.

   PUBLIC PARK. Public land which has been designated for park or recreational activities, including but not limited to a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis court, pedestrian/bicycle paths, open space, wilderness areas, or similar public land within the town which is under the control, operation or management of the town.

   RELIGIOUS INSTITUTION. Any church, synagogue, mosque, temple, building or property that is used primarily for religious worship and related religious activities.

   RESIDENTIAL ZONING DISTRICT or USE. A single family, duplex, townhouse, multiple family, mobile home park, residential subdivision or campground as defined in the Town Planning and Zoning Ordinance.

   SCHOOL. Any public or private educational facility, including but not limited to charter schools, child daycare facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges and universities. SCHOOL includes the school grounds, but does not include the facilities used primarily for another purpose and only incidentally as a SCHOOL.

   SEMI-NUDE. A state of dress in which clothing covers no more than the genitals, pubic region and areola of the female breast, as well as portions of the body that are covered by supporting straps or devices.

   SEX ORIENTED BUSINESSES. Those businesses defined as follows:

      (1)   ADULT ARCADE. Any place to which the public is permitted or invited and in which coin-operated or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors or other image producing devices are maintained to show images involving specified sexual activities or specified anatomical areas as defined in this section, to persons in booths or viewing rooms.

      (2)   ADULT BOOKSTORE, ADULT NOVELTY STORE or ADULT VIDEO STORE.  

         (a)   A commercial establishment that offers for sale or rent, for any form of consideration, any of the following as one of its principal business purposes:

            1.   Books, magazines, periodicals or other printed matter, photographs, films, motion pictures, video cassettes, slides, or other visual representations which are characterized by the depiction or description of specified sexual activities or specified anatomical areas as defined in this section; or

            2.   Instruments, devices, or paraphernalia which are designed for use in connection with specified sexual activities, as defined in this section.

         (b)   An establishment may have other principal business purposes that do not involve the offering for sale, rental or viewing of materials depicting or describing specified sexual activities or specified anatomical areas as defined in this section, and still be categorized as ADULT BOOKSTORE, ADULT NOVELTY STORE or ADULT VIDEO STORE. These other business purposes will not serve to exempt the establishment from being categorized as an ADULT BOOKSTORE, ADULT NOVELTY STORE or ADULT VIDEO STORE so long as its principal business purpose is offering for sale or rental for some form of consideration, the specified materials which are characterized by the depiction or description of specified anatomical areas or specified sexual activities as defined in this section.

      (3)   ADULT CABARET. A nightclub, bar, restaurant, bottle club, or similar commercial establishment, whether or not alcoholic beverages are served, which predominately features:

         (a)   Persons who appear in a state of nudity or are semi-nude;

         (b)   Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities as defined in this section; or

         (c)   Films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas as defined in this section.

      (4)   ADULT LIVE ENTERTAINMENT. An establishment that features either:

         (a)   Persons who appear in a state of nudity or are semi-nude; or

         (b)   Live performances that are characterized by the exposure of specified anatomical areas or specified sexual activities as defined in this section.

      (5)   ADULT MOTEL. A motel, hotel or similar commercial establishment which:

         (a)   Offers 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 the depiction or description of specified sexual activities or specified anatomical areas as defined in this section, and which advertises the availability of this sex oriented type of material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising, including but not limited to newspapers, magazines, pamphlets or leaflets, radio or television;

         (b)   Offers a sleeping room for rent for a period of time less than ten hours; or

         (c)   Allows a tenant or occupant to sub-rent the sleeping room for a time period of less than ten hours.

      (6)   ADULT MOTION PICTURE THEATER. A commercial establishment where films, motion pictures, video cassettes, slides or similar photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas as defined in this section, are predominantly shown for any form of consideration.

      (7)   ADULT THEATER. A theater, concert hall, auditorium or similar commercial establishment which, for any form of consideration, predominantly features persons who appear in a state of nudity or are semi-nude who engage in live performances which are characterized by exposure of specified anatomical areas or by specified sexual activities as defined in this section.

      (8)   NUDE MODEL STUDIO. Any place where a person, who appears in a state of nudity or who displays specified anatomical areas as defined in this section, is observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons who pay money or any other form of consideration. It shall be considered an exemption from this definition if a person appearing in a state of nudity did so in a modeling class operated:

         (a)   By a proprietary school, licensed by the state; a college, community 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 a college, community 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 nude or semi-nude person is available for viewing;

            2.   Where, in order to participate in a class, a student must enroll at least three days in advance of the class; and

            3.   Where no more than one nude or semi-nude model is on the premises at any one time.

   SEXUAL ENCOUNTER ESTABLISHMENT. A business or commercial establishment that, as one of its primary business purposes, offers for any form of consideration a place where two or more persons may congregate, associate or consort for the purpose of specified sexual activities as defined in this section when one or more of the persons is in a state of nudity or semi-nude. The definition of sex oriented businesses shall not include an establishment where a medical practitioner, psychologist, psychiatrist or similar professional person licensed by the state engages in medically approved and recognized sexual therapy.

   SPECIFIED ANATOMICAL AREAS. As used in this section, the male genitals in a state of sexual arousal or the vulva or more intimate parts of the female genitals, and may include any of the following:

      (1)   Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breasts below a point immediately above the areola; or

      (2)   Human male genitals in a discernibly turgid state even if completely and opaquely covered.

   SPECIFIED SEXUAL ACTIVITIES. Any of the following:

      (1)   Human genitals in a state of sexual stimulation or arousal;

      (2)   Fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts;

      (3)   Sex acts, normal or perverted, actual or simulated, including acts of human masturbation, sexual intercourse, oral copulation or sodomy;

      (4)   Excretory functions as part of, or in connection with, any of the activities set forth in divisions (1) through (3) of this definition.

   VIEWING ROOM. The room, booth or area where a patron of a sex oriented business would ordinarily be positioned while viewing a film, video cassette or other video reproduction, or adult live entertainment as defined in this section.

(Ord. § 606(B), passed 9-4-2008)

   The establishment of a sex oriented business shall be permitted only in C3 (Commercial and Minor Industrial), PM (Performance Industrial), M1 (Industrial; General Limited), and M2 (Industrial; Heavy) Zoning Districts and shall be subject to the following spacing restriction:

   (A)   No person shall cause or permit the establishment of any sex oriented business, as defined in this subchapter, within 1,000 feet of another sex oriented business.

   (B)   No person shall cause or permit the establishment of any sex oriented business, as defined in this subchapter, within 500 feet of any religious institution, school, YMCA, YWCA, Boys Club, Girls Club or similar existing youth organization, public park, public building or properties zoned for residential use or used for residential purposes.

(Ord. § 606(C), passed 9-4-2008)

   For the purpose of measuring separation distances in this subchapter:

   (A)   The distance between any two sex oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior structural wall of each business.

   (B)   The distance between any sex oriented business and any religious institution, school, YMCA, YWCA, Boys Club, Girls Club or similar existing youth organization, public park, public building, or any properties zoned for residential use, or used for residential purposes, shall be measured in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as part of the premises where the sex oriented business is conducted, to the nearest property line of the premises of a religious institution, school, YMCA, YWCA, Boys Club, Girls Club or similar existing youth organization, public park, public building, or any properties zoned for residential use or used for residential purposes.

(Ord. § 606(D), passed 9-4-2008)

   (A)   Any sex oriented business lawfully operating on June 2, 1999 that is in violation of this subchapter shall be deemed a nonconforming use. Nonconforming uses shall be governed by § 153.016. If two or more sex oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sex oriented business which was first established and continually operating at the particular location is the conforming use, and the later established business is nonconforming.

   (B)   A sex oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the subsequent location of a religious institution, school, YMCA, YWCA, Boys Club, Girls Club or similar existing youth organization, public park, public building, residential zoning district, or residential use within 500 feet of the sex oriented business.

(Ord. § 606(E), passed 9-4-2008)

   A person who operates or causes to be operated a sex oriented business, other than an adult motel/hotel, which exhibits on the premises in a viewing room of less than 150 square feet of floor space, a film, video cassette or other video reproduction, or adult live entertainment which depicts specified sexual activities or specified anatomical areas as defined in this subchapter, shall comply with the following requirements:

   (A)   Upon application for a building permit or zoning clearance, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required. However, each diagram should be oriented to the north or to some designated street and should be drawn to a designated scale with marked dimensions sufficient to show the various internal dimension of all areas of the interior of the premises to an accuracy of plus or minus six inches.

      (1)   The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access and an illumination of not less than five foot-candles as measured at the floor level.

      (2)   It shall be the duty of the owners and/or operator, and it shall also be the duty of any agents and employees present on the premises, to ensure that the illumination described above is maintained at all times that any patron is present on the premises.

      (3)   All off-street parking areas and premises entries of the sex oriented business shall be in compliance with §§ 153.150 through 153.153.

   (B)   It shall be the duty of the owner and/or operator to ensure that the viewing room(s), as defined in this subchapter, remain(s) unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times, to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted.

   (C)   No viewing room may be occupied by more than one person at any one time.

   (D)   The application shall be sworn to be true and correct by the applicant.

(Ord. § 606(F), passed 9-4-2008)

   A zoning clearance shall be required to ensure that adult bookstores, adult novelty stores, adult video stores, adult motels, adult motion picture theaters, adult theaters, nude model studios and sexual encounter establishments without viewing rooms that have been defined as sex oriented businesses, as defined in this subchapter, are in compliance with the use district, location and separation distance requirements.

(Ord. § 606(G), passed 9-4-2008)

   (A)   As established in §§ 153.125 through 153.138: "No person shall exhibit, post or display a sign or wall, any statement, symbol or picture of an obscene nature."

   (B)   No depiction of specified sexual activities or specified anatomical areas shall be visible from the exterior of the premises.

(Ord. § 606(H), passed 9-4-2008)

   It shall be unlawful to operate, permit or cause to be operated a sex oriented business, as defined in this subchapter, excluding an adult motel, between the hours of 1:00 a.m. and 8:00 a.m. on Monday through Saturday, or between the hours of 1:00 a.m. and 12:00 p.m. noon on Sunday.

(Ord. § 606(I), passed 9-4-2008) Penalty, see § 153.999