A.

Purpose. It is the purpose of the ordinance codified in this chapter to regulate sexually oriented businesses in order to promote the health, safety, morals and general welfare of the citizens of the town, and to establish reasonable and uniform regulations to prevent the deleterious locations and concentration of sexually oriented businesses within the town. The provisions of this chapter 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 chapter to restrict or deny access by distributors and exhibitors of sexually oriented materials protected by the First Amendment, or to deny access by distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this chapter 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 council, and findings incorporated in the cases of city of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1961), and on studies in other communities including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and also 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 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 chapter as adult theaters and cabarets engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments.

3.

Sexual acts, including masturbation, and oral 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 theatres, adult arcades, and other sexually oriented businesses for the purpose of engaging in sex within the premises of sexually oriented businesses.

6.

At least fifty 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 caused by the human immunodeficiency virus (HIV) in the United States six hundred in 1982, two thousand two hundred in 1983, four thousand six hundred in 1984, eight thousand five hundred fifty-five in 1985 and two hundred fifty-three thousand four hundred forty-eight through December 31, 1992.

8.

The number of cases of early (less than one year) syphilis in the United States reported annually has risen, with thirty-three thousand six hundred thirteen cases reported in 1982 and forty-five thousand two hundred through November of 1990.

9.

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.

10.

The Surgeon General of the United States in his report of October 22, 1986, 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.

11.

According to the best scientific evidence, AIDS and HIV infection as well as syphilis and gonorrhea, are principally transmitted by sexual acts.

12.

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.

13.

Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view "adult" oriented films.

14.

The findings noted in subsections B.1 through B.13 of this section raise substantial governmental concerns.

15.

Sexually oriented businesses have operational characteristics, which should be reasonably regulated in order to protect those substantial governmental concerns.

16.

A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the sexually oriented businesses. Further, such a licensing procedure will place a heretofore nonexistent 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 town. It is appropriate to require reasonable assurance that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein.

17.

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 theaters.

18.

Requiring licenses of sexually oriented businesses to keep information regarding current employees and certain past employees will help reduce in the incidences of certain types of criminal behavior by facilitating the identification of potential witness or suspects and by preventing minors from working in such establishments.

19.

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.

20.

It is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain employees who may engage in the conduct which this chapter is designed to prevent or who are likely to be witness to such activity.

21.

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 chapter.

22.

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.

23.

The general welfare, health, morals and safety of the citizens of the town will be promoted by the enactment of this chapter.

(Ord. No. 2013-04, Exh. A, 5-7-2013)

As used in this chapter:

A.

"Adult arcade" means any place to which the public is permitted or invited wherein coin-operated, slug operated, or for any form of consideration, or electronically, electrically, or mechanically controlled still or motion picture device are maintained to show images to five or fewer persons per machine at any one time, and when the images so displayed are distinguished or characterized by depicting or describing of "specific sexual activities" or "specified anatomical areas."

B.

"Adult bookstore, adult novelty store or adult video store" means a commercial establishment that, as one of its principal purposes, offers for sale or rental for any form of consideration any one or more of the following:

1.

Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which are characterized by depiction or description of "specified sexual activities" or "specified anatomical areas;" or

2.

Instruments, devices, or paraphernalia, which are designed for, use in connection with "specified sexual activities."

A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing "specified sexual activities" or "specified anatomical areas" and still be categorized as adult bookstore, adult novelty store or adult video store. Such other business purpose will not serve to exempt such commercial establishments from being categorized as an adult bookstore, adult novelty store or adult video store so long as one of its principal business purposes is offering for sale or rental for consideration the specified materials which are characterized by the depiction or description of "specified sexual activities" or "specific anatomical areas."

C.

"Adult cabaret" means a nightclub (which does not serve alcoholic beverages), restaurant or similar commercial establishment that regularly features:

1.

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

2.

Live performances which are characterized by the exposure of "specified anatomical areas" or "specified sexual activities," or

3.

Films, motion pictures, videocassettes, slides or other photographic reproductions, which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."

D.

"Adult motel" means a hotel, motel or similar commercial establishment which:

1.

Offers accommodations to the public for any form of consideration, 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"; and has a sign visible from the public right-of-way which advertises the availability of the adult type of photographic reproductions; or

2.

Offers a sleeping room for rent for a period of time that is less than ten hours; or

3.

Allows a tenant or occupant of a sleeping room to sublet the room for a period of time that is less than ten hours.

E.

"Adult motion picture theater" means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."

F.

"Adult theater" means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or semi-nude, or live performances which are characterized by the exposure of "specified anatomical areas" or specified sexual activities.

G.

"Employee" means a person who performs any service on the premises of a sexually oriented business on a full-time, part-time or contract basis, whether or not the person is denominated an employee, independent contractor, agent or otherwise and whether or not such person is paid a salary, wage or other compensation by the operator of such business. Employee does not include exclusively on the premises for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises.

H.

"Escort" means a person who, for consideration, agrees or offers to act as a companion, guide or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.

I.

"Escort agency" means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip or other consideration.

J.

"Establishment" means and includes any of the following:

1.

The opening or commencement of any sexually oriented business as a new business;

2.

The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; or

3.

The relocation of any sexually oriented business.

K.

"Licensee" means a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license; and in the case of an employee, a person in whose name a license has been issued authorizing employment in a sexually oriented business.

L.

"Nude model studio" means any place where a person who appears semi-nude, in a state of nudity, or who displays "specified anatomical areas" and is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration. Nude model studio shall not include a proprietary school licensed by the state of Arizona or a college, junior college or university supported entirely or in part by public taxation; a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or in a structure:

1.

That has no sign visible from the exterior of the structure and no other advertising that indicated a nude or semi-nude person is available for viewing; and

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 in on the premises at any one time.

M.

"Nudity" or a "state of nudity" means the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genital in discernibly turgid state.

N.

"Person" means an individual, proprietorship, partnership, corporation, association or other legal entity.

O.

"Semi-nude" or in a "semi-nude condition" means the showing of the female breast below a horizontal line across the top of the areola at its highest point or the showing of the male or female buttocks. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit or other wearing apparel; provided, the areola is not exposed in whole or in part.

P.

"Sexual encounter center" means a business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration:

1.

Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or

2.

Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nude.

Q.

"Sexually oriented business" means an adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio or sexual encounter center.

R.

"Specified anatomical areas" means:

1.

The human male genitals in a discernibly turgid state, even if completely and opaquely covered; or

2.

Less than completely and opaquely covered human genitals, pubic region, buttocks or a female breast below a point immediately above the top of the areola.

S.

"Specified sexual activities" means any of the following:

1.

The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts;

2.

Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, masturbation or sodomy; or

3.

Excretory functions as part of or in connection with any of the activities set forth in subsections 1. and 2. of this definition.

T.

"Substantial enlargement" of a sexually oriented business means the increase in the floor areas occupied by the business by more than twenty-five percent as the floor areas exist on the date the ordinance codified in this chapter takes effect.

(Ord. No. 2013-04, Exh. A, 5-7-2013)

Sexually oriented businesses are classified as follows:

A.

Adult arcades;

B.

Adult bookstores, adult novelty stores or adult video stores;

C.

Adult cabarets;

D.

Adult motels;

E.

Adult motion picture theaters;

F.

Escort agencies;

G.

Nude model studios; and

H.

Sexual encounter centers.

(Ord. No. 2013-04, Exh. A, 5-7-2013)

A.

A person commits a misdemeanor if that person operates or causes to be operated a sexually oriented business in any zoning district other than C-1, C-2 and I-1 as defined and described in the town of Eagar zoning code.

B.

A person commits an offense if the person operates or causes to be operated a sexually oriented business within two hundred feet of the following:

1.

A church, synagogue, mosque, temple or building that is used primarily for religious worship and related religious activities;

2.

A public or private educational facility including but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, private 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 facilities used primarily for another purpose and only incidentally as a school;

3.

Boundaries of a residential district as defined in the town of Eagar zoning code;

4.

A public park or recreational area 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 courts, pedestrian/bicycle paths, wilderness areas, or other similar public land within the city which is under the control, operation or management of the city park and recreation authorities;

5.

The property line of a lot devoted to a residential use as defined in town of Eagar zoning code;

6.

An entertainment business which is oriented primarily towards children or family entertainment; or

7.

A licensed premise, which sells alcohol pursuant to the alcoholic beverage control regulations of the state.

C.

A person commits a misdemeanor if that person causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within two hundred feet of another sexually oriented business.

D.

A person commits a misdemeanor if that person causes or permits the operation, establishment or maintenance of more than one sexually oriented business in the same building, structure or portion thereof, or the increase of floor area of any sexually oriented business in any building, structure or portion thereof containing another sexually oriented business.

E.

For the purpose of Section 18.56.020, measurement shall be made in a straight line, without regard to the intervening structures or objects or political boundaries, from the closest exterior wall of the structure in which each business is located.

F.

Any sexually oriented business lawfully operating on January 1, 2000, which is in violation of subsections A. through F. of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed one year, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty days or more. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two or more sexually oriented business are within two hundred feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later established business(es) is/are nonconforming.

G.

A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the granting or renewal of the sexually oriented business license, of a classification listed in Section 18.56.030 of this chapter within two hundred feet of the sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when an application for a license is submitted after a license has expired or been revoked.

(Ord. No. 2013-04, Exh. A, 5-7-2013)

A.

Evidence that a sleeping room in a hotel, motel or a similar commercial establishment has been rented and vacated two or more times in a period of time that is less than ten hours creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this chapter.

B.

A person commits a misdemeanor if, as the person in control of a sleeping room in a hotel, motel or similar commercial establishment that does not have a sexually oriented license, he rents or sublets a sleeping room to a person and within ten hours from the time the room is rented, he rents or sub rents the same sleeping room again.

C.

For purposes of Section 18.56.020 of this chapter, the terms "rent" or "sub rent" means the act of permitting a room to be occupied for any form of consideration.

(Ord. No. 2013-04, Exh. A, 5-7-2013)

A.

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

1.

Upon application for a sexually oriented license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty-two square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. 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 or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of the interior of premises to an accuracy of plus or minus six inches. The town may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.

2.

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

3.

No alteration in the configuration or location of a manager's station may be made without the prior approval of the town.

4.

It is the duty of the licensee of the premises to ensure that at least one licensed employee is on duty and situated in each manager's station at all times that any patron is present inside the premises.

5.

The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any portion is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station.

6.

It shall be the duty of the licensee to ensure that the view area specified in subsection A.5. remains 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 in the application filed pursuant subsection A.1. of this section.

7.

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

8.

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

9.

It shall be the duty of the licensee to ensure that the illumination described above is maintained at all times that any patron is present in the premises.

10.

No licensee shall allow openings of any kind to exist between viewing rooms or booths.

11.

No person shall make or attempt to make an opening of any kind between viewing booths or rooms.

12.

The licensee shall cause all floor coverings in viewing booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting.

13.

The licensee shall cause all wall surfaces and ceiling surfaces in viewing booths to be constructed of, or permanently covered by, nonporous, easily cleanable material. No wood, plywood, composition board or other porous material shall be used within forty-eight inches of the floor.

B.

A person having a duty under subsections A.1. through A.13. of this section commits a misdemeanor if he knowingly fails to fulfill that duty.

(Ord. No. 2013-04, Exh. A, 5-7-2013)

A.

An escort agency shall not employ any person under the age of eighteen years.

B.

A person commits an offense if the person acts as an escort or agrees to act as an escort for any person under the age of eighteen years.

(Ord. No. 2013-04, Exh. A, 5-7-2013)

A.

A nude model studio shall not employ any person under the age of eighteen years.

B.

A person under the age of eighteen years commits an offense if the person appears semi-nude or in a state of nudity in or on the premises of a nude model studio. It is a defense to prosecution under this subsection if the person under eighteen years was in a restroom not open to public view or visible to any other person.

C.

A person commits an offense if the person appears in a state of nudity, or knowingly allows another to appear in a state of nudity in an area of nude model studio premises, which can be viewed, from the public right-of-way.

D.

A nude model studio shall not place or permit a bed, sofa or mattress in any room on the premises, except that a sofa may be placed in a reception room open to the public.

(Ord. No. 2013-04, Exh. A, 5-7-2013)

A.

It shall be a misdemeanor for a person who knowingly and intentionally, in a sexually oriented business, appears in a state of nudity or depicts specified sexual activities.

B.

It shall be a misdemeanor for a person who knowingly and intentionally, in a sexually oriented business appears semi-nude condition unless the person is an employee who, while semi-nude, shall be at least ten feet from any patron or customer and on a stage at least two feet from the floor.

C.

It shall be misdemeanor for an employee, while semi-nude in a sexually oriented business, to solicit any pay or gratuity from any patron or customer or for any patron or customer to pay or give any gratuity to any employee, while such employee is semi-nude in a sexually oriented business.

D.

It shall be a misdemeanor for an employee, while semi-nude, to touch a customer or the clothing of a customer.

(Ord. No. 2013-04, Exh. A, 5-7-2013)

A person commits a misdemeanor if the person knowingly allows a person under the age of eighteen years on the premises of a sexually oriented business.

(Ord. No. 2013-04, Exh. A, 5-7-2013)

No sexually oriented business, except for an adult motel, may remain open at any time between the hours of twelve a.m. and eight a.m. on weekdays and Saturdays, and closed on Sundays.

(Ord. No. 2013-04, Exh. A, 5-7-2013)

It is a defense to prosecution under Section 18.56.090 of this chapter that a person appearing in a state of nudity did so in a modeling class operated:

A.

By a proprietary school, licensed by the state of Arizona; a college, junior college or university supported entirely or partly by taxation;

B.

By a private college or university which maintains and operates education programs in which credits are transferable to a college, junior 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 person is available for viewing; and

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 model is on the premises at any one time.

(Ord. No. 2013-04, Exh. A, 5-7-2013)

A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of any section of this chapter is subject to a suit for injunction as well as prosecution for criminal violations. Such violations are a class one misdemeanor and shall be punishable by a fine of two thousand five hundred dollars or six months in jail. Each day a sexually oriented business so operates is a separate offense or violation.

(Ord. No. 2013-04, Exh. A, 5-7-2013)

If any section, subsection or clause of the ordinance codified in this chapter shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected.

(Ord. No. 2013-04, Exh. A, 5-7-2013)