Fredonia City Zoning Code
SEXUALLY ORIENTED
BUSINESSES
§ 153.085 PURPOSE AND INTENT.
It is the purpose and intent of this subchapter 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 locating of the businesses in areas of the town where they may be harmful or deleterious to the community through adverse secondary effects. It is not intended hereby to impose a limitation or restriction on the content of any communicative materials, including sexually oriented materials, nor to restrict or deny access by adults to the materials insofar as they may be protected by the First Amendment.
(1974 Code, § 18-3-8-1) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.086 DEFINITIONS.
For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
APPLICANT. Any individual group of individuals, partners or primary stockholders or owners of any corporation or other limited liability association who applies for permit to become the operator of a sexually oriented business.
EMPLOYEE. A person who works or performs in and/or for a sexually oriented business, regardless of whether or not the person is paid a salary, wage or other compensation by the operator of the business.
NUDITY or STATE OF NUDITY.
(1) The appearance of human bare buttock, anus, genitalia or the areola or nipple of the female breast; or
(2) A state of dress which fails to opaquely and fully cover any of the above.
OPERATOR. The owner, permit holder, custodian, manager, operator or person in charge of any sexually oriented business.
PERMITTED OR LICENSED PREMISES. Any premises that has obtained a license and/or permit as a sexually oriented business.
RESIDENTIAL USE. A single-family, duplex, townhouse, multiple-family, mixed residential or mobile home subdivision, as defined in the town zoning and subdivision ordinances, or a campground or other commercial housing use.
SEXUALLY ORIENTED BUSINESSES. Those businesses engaging in or offering to the public the following services or products.
(1) ADULT ARCADE. Projectors or other image producing machines offering films, motion pictures, video cassettes or other photographic reproductions, for a consideration and for viewing by five or fewer persons each, of material characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas”.
(2) ADULT BOOKSTORE, ADULT NOVELTY STORE or ADULT VIDEO STORE. A commercial establishment which has as a significant or substantial portion of its stock-in-trade, or which derives a significant or substantial portion of its revenue from the sale or rental for any form of consideration any one or more of the following:
(a) Books, magazines or other printed matter, or photographs, films, video cassettes or other visual representations which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas”; and/or
(b) Instruments, devices or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse. Another principal business purpose will not exempt an establishment from coming within this definition so long as one of its principal business purposes is offering for sale or rental, for some consideration, any of the materials specified herein.
(3) ADULT THEATER. A commercial establishment where:
(a) Entertainment is offered featuring persons in a nude state or performers who in any manner expose “specified anatomical areas”; or
(b) Films, motion pictures, video cassettes or similar photographic reproductions are shown which are characterized by “specified sexual activities” for any form of consideration.
(4) ESCORT BUSINESS. The furnishing, offering to furnish or holding oneself out as a companion, guide or date where a consideration or gratuity of any type is paid to the escort and to the arranging agency, if one is involved. An agency or person who agrees or offers to privately model lingerie or to privately perform a striptease for another person for any consideration shall be included within this definition.
(5) MASSAGE PARLOR. Any place where, for any form of consideration, there occurs a massage, alcohol rub, administration of oils or balms, electric or magnetic treatments, or any other treatment manipulation of the human body which includes any “specified sexual activities”, or which includes exposure of the operator’s “specified anatomical areas”. This definition shall not include the practice of massage by any certified operator licensed by the state where the “specified sexual activity” or exposure is not offered or does not take place.
(6) NUDE MODEL STUDIO. Any place where a person engages in the business of regularly appearing in a state of nudity or displaying “specified anatomical areas” for any form of consideration to be observed, sketched, drawn, painted, sculpted, photographed or similarly depicted by other persons.
(7) SEXUAL ENCOUNTER ESTABLISHMENT. A business or commercial establishment that offers, as one of its primary business purposes and for a consideration, a place where two or more persons may congregate, associate or consort for the purpose of “specified sexual activities”.
SPECIFIED ANATOMICAL AREAS. 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 top of the areola; and/or
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES. Any of the following:
(1) The fondling or other intentional touching of human genitals, pubic region, buttocks, anus, or female breasts;
(2) Sex acts, normal or abnormal, actual or simulated, including intercourse, oral copulation or sodomy;
(3) Masturbation, actual or simulated;
(4) Human genitals in a state of sexual stimulation, arousal or tumescence; and/or
(5) Excretory functions as part of or in connection with any of the activities set forth in divisions (1) through (4) hereof.
TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS. Any of the following:
(1) The sale, lease or sublease of the business;
(2) The transfer of securities which constitute a controlling interest in the business, whether by sale exchange or similar means; or
(3) The establishment of a trust, gift or other similar legal devise which transfers ownership, control or the primary beneficial interest in a business.
(1974 Code, § 18-3-8-2) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.087 ZONING AND LOCATING REGULATED BUSINESSES.
(A) The establishment of a sexually oriented business shall be permitted only in a general commercial zone (§ 153.116), but in no event shall the business be permitted within 1,000 feet of any religious institution, school, boys’ or girls’ club or similar existing youth organization, or public park or public building, or within 1,500 feet of any property zoned for residential use or used for residential purposes.
(B) Nothing in this section prohibits the location of sexually oriented businesses within retail shopping centers located in a general commercial zone wherein the activities will have their only frontage upon enclosed malls or malls isolated from direct view from public streets, parks, schools, religious institutions, boys’ or girls’ club or similar existing youth organization, public buildings or residential districts or uses without regard to the distance requirements of division (A) above.
(1974 Code, § 18-3-8-3) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.088 MEASUREMENT OF DISTANCE.
As regarding § 153.087(A), distance between any sexually oriented business and any religious institution, public or private elementary or secondary school, boys’ or girls’ club or similar existing youth organization, or public park or public building, or any property 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 sexually oriented business is conducted to the nearest property line of the zone or uses referred to herein.
(1974 Code, § 18-3-8-4) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.089 SEXUALLY ORIENTED BUSINESS PERMIT; PURPOSE.
(A) It is the purpose of this subchapter 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 deleterious effects of sexually oriented businesses within the town. The provisions of this subchapter have neither 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 to restrict or deny access by adults to sexually oriented materials protected by the First Amendment.
(B) No sexually oriented business shall be permitted to operate without a valid sexually oriented business permit issued by the town for the particular type of business. The permit shall be required in addition to the business license required under Chapter 110 of this code of ordinances and the Town Clerk shall be responsible for ascertaining whether a proposed sexually oriented business for which a permit is being applied complies with all zoning and location requirements of this section, as in the case of any other business license. The Town Council shall grant, deny, revoke, renew, suspend or cancel sexually oriented business permits based upon information supplied by the Town Clerk, augmented by the input from a public hearing in the event the Town Council shall choose to hold a hearing. Hearings shall be held in accordance with this code of ordinances with 30 days’ written notice being personally provided the permit applicant.
(C) Application for a business permit shall be made on a form provided by the town and shall contain the following information with regard to all owners and be accompanied by the following documents:
(1) The full legal name of:
(a) All individuals together with any aliases;
(b) Any partnership with the names of all partners and a copy of the partnership agreement, if any; and/or
(c) Any corporation together with the date and state of incorporation, a certificate of good standing from that state, the names and addresses of all officers, directors and principal stockholders, and the name of the statutory agent.
(2) If the applicant intends to operate the sexually oriented business under a name other than his or her own, he or she must state the fictitious name of the business and submit the required documents reflecting registration under any law of the state pertaining to the registration of a fictitious name then in effect;
(3) Whether the applicant or any of the other individuals listed pursuant to this division (C) has, within the two- or five-year periods specified herein, immediately preceding the date of the application, been convicted of a specified criminal act, and, if so, the specified criminal act involved together with the date and place of conviction;
(4) Whether the applicant or any of the other individuals listed pursuant to this division (C) has had a previous permit or license for a sexually oriented business denied, suspended or revoked, including the name and location of the business as well as the date of denial, suspension or revocation. If a permit or license for a partnership or corporation wherein any of the individuals were either a partner or an officer, director or principal stockholder was revoked, denied or suspended, the name, location and date of it must be included as well;
(5) Whether the applicant or any other individual, partnership or corporation listed pursuant to this section presently holds any other permits and/or licenses anywhere else for the operation of a sexually oriented business;
(6) The exact location of the proposed sexually oriented business, including both a legal description of the property and the street address. The mailing and residence (street) address of the applicant shall also be included;
(7) A recent photograph of the applicant(s);
(8) The applicant(s)’ driver’s permit number, Social Security number, birth date and tax identification number if a partnership or corporation;
(9) A sketch or diagram showing the configuration of the proposed premises, including a statement of total floor space to be occupied by the business. It should be to scale as near as reasonably possible and in an understandable form acceptable to the town; and
(10) The distance in feet from any church, public or private elementary or secondary school, boys’ or girls’ club or similar existing youth organization, or public park or public building, or any property zoned or used for residential purposes if the same be located within two blocks of the proposed business.
(D) Applicants granted a permit under this section shall have a continuing duty to promptly supplement application information required by this section in the event the information changes in any way from what is stated in the application. A failure to comply with this section within 30 days from the date of the change shall be grounds for suspension of a permit.
(E) Applicants shall be approved in accordance with the requirements of this section and the premises must be inspected and found to be in compliance with health, fire, and building codes and laws before a permit shall be issued.
(F) An applicant shall pay a non-refundable application of $100 at the time of filing an application under this section.
(G) All applicants shall be required to list in the application the names of any and all employees required to be licensed hereby to the extent that they are then known and to provide thereafter the names of the employees as available on an on-going basis.
(H) Application for a permit hereunder shall constitute a consent by the applicant to the provisions of this subchapter, and a waiver of objection to the exercise by the town of those powers and rights given to it hereby.
(1974 Code, § 18-3-8-5) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.090 INVESTIGATION AND ISSUANCE.
Upon receipt of an application properly filed with the town and upon the payment of the non-refundable application fee, the town shall cause a check to be made of whether an applicant has been convicted of a specified criminal act within the periods set forth in § 153.091(A)(8) and whether there is proper compliance with Health, Fire and Building Codes and laws. A permit shall be granted or denied within 30 days from the date of its proper filing. The permit shall state on its face the name of the person or persons to whom it is granted, the expiration date and the address of the sexually oriented business, and it shall be posted in a conspicuous place at or near the entrance to the business.
(1974 Code, § 18-3-8-6) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.091 DENIAL OF APPLICATION FOR PERMIT.
(A) The town shall deny the application for any of the following reasons:
(1) An applicant is under the age of 18 years;
(2) An applicant or his or her spouse is overdue on any payment owed to the town for taxes, fines or penalties assessed in relation to a sexually oriented business;
(3) An applicant is residing with a person who has been denied or had a permit to operate a sexually oriented business revoked under this subchapter within the preceding 12 months for any reason other than location;
(4) An applicant has failed to provide information required by this section or has falsely responded to any part of the application form;
(5) The premises to be used for the sexually oriented business have not been approved as complying with Town or State Health, Fire and Building Codes;
(6) An applicant is in violation of any other provision of the subchapter, including, but not limited to, the zoning locational requirements for a sexually oriented business, or any other statute, ordinance or court order;
(7) The application or permit fees required by this section have not been paid;
(8) An applicant has been convicted of a “specified criminal” act for which:
(a) Less than two years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is for a misdemeanor offense included within A.R.S. Title 13, Chs. 14, 32, 35 or 35.1, or crimes connected with another sexually oriented business; or
(b) Less than five years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is for a felony or for two or more misdemeanor offenses where the “specified criminal” acts are made criminal within A.R.S. Title 13, Chs. 14, 32, 35 or 35.1, or crimes connected with another sexually oriented business.
(9) The fact a conviction is being appealed shall have no effect on disqualification of the applicant. An applicant convicted of any of the above “specified criminal” acts may qualify for a sexually oriented business permit only when the time period required hereby has elapsed; and/or
(10) An applicant knowingly has in his or her employ an employee who does not have a valid license as required in § 153.099.
(B) If the town denies an application, it shall notify the applicant of the denial and the reason(s) for the same. If a person applies for a particular location within a period of 12 months from the date of denial of a previous application, and there has been no intervening change of circumstances which could reasonably be expected to lead to a different decision, the application shall be denied.
(1974 Code, § 18-3-8-7) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.092 ANNUAL PERMIT FEE.
The annual fee for a sexually oriented business permit is $1,000.
(1974 Code, § 18-3-8-8) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.093 INSPECTION.
An applicant shall permit representatives of the town and county to inspect the premises of a sexually oriented business for the purpose of assuring compliance with the law at any time business is occupied or open for business. Refusal to permit the lawful inspection, regardless of whether or not a permit has been issued under this section, shall be a misdemeanor.
(1974 Code, § 18-3-8-9) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.094 EXPIRATION OF PERMIT.
Each permit shall expire one year from the date of issuance and may be renewed only by making application as provided herein, although in the case of a renewal at the same location, information unchanged from the initial application may be so characterized and not repeated. Application for renewal shall be made 30 days before the expiration date in order for operation to continue without interruption. In the event of denial or revocation of a permit, a new permit shall not be issued hereunder until the expiration of one year from the date of denial or revocation, or from the date of correction of the reason for denial or revocation if, in its sole discretion, the town so permits.
(1974 Code, § 18-3-8-10) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.095 SUSPENSION OF PERMIT.
The town shall suspend a permit for a period not to exceed 30 days if it determines that an operator, or an employee of an operator, has:
(A) Violated or is not in compliance with any provision of this section;
(B) Been under the influence of drugs or alcoholic beverages while working in the sexually oriented business premises;
(C) Refused to allow an inspection of the business premises as authorized by this section;
(D) Negligently permitted the use of alcohol or drugs on the premises by a customer;
(F) Operated the sexually oriented business in violation of the hours of operation set forth in § 153.097; or
(G) Knowingly employs a person who does not have a valid license as required by § 153.099.
(1974 Code, § 18-3-8-11) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.096 REVOCATION OF PERMIT.
(A) The town shall revoke a permit upon determining that:
(1) An operator gave false or misleading information in the material submitted during the application process that tended to enhance the applicant’s opportunity of obtaining a permit;
(2) An operator had knowingly allowed the possession, use or sale of alcohol or drugs on the premises;
(3) An operator has knowingly allowed prostitution or the solicitation of a sex act to occur on the premises;
(4) An operator has operated the sexually oriented business during a period of time when the permit was under suspension;
(5) An operator is convicted of a “specified criminal” act which would have been grounds for denial of the permit if it had occurred prior to issuance of a permit;
(6) An operator is convicted of tax violations for any taxes or fees related to a sexually oriented business;
(7) An operator knowingly allows any act of sexual intercourse, sodomy, oral copulation, masturbation or any other specified sexual activities to occur within or in the parking lot of the permitted premises; and/or
(8) A cause for suspension arises and the permit has been suspended previously within the preceding 12 months.
(B) An operator, where the owner or permit holder, shall be presumed to have constructive notice of any violation of which an employee, custodian, manager or person in charge may be guilty, regardless of actual notice. Revocation by the town of a permit shall continue for one year, and an operator shall not be issued a sexually oriented business permit for one year from the date a revocation becomes effective. Where deemed appropriate by the town, a revocation may be terminated upon correction by the operator of the basis for revocation; provided, at least 90 days have elapsed since the date revocation became effective.
(1974 Code, § 18-3-8-12) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.097 APPEAL AND REVIEW.
After denial of an application, whether initial or renewal, and after suspension or revocation of a permit, the applicant or operator may seek prompt review of the administrative action through the Town Council. If the administrative action is affirmed by the Town Council upon review, the administrative action may be promptly reviewed by the court.
(1974 Code, § 18-3-8-13) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.098 TRANSFER OF PERMIT.
(A) An operator shall not operate a sexually oriented business under the authority of a permit at any place other than the address designated in the application for permit. An operator shall not transfer his or her permit to another unless the following requirements are fully met:
(1) The permit is amended by the town after receipt of a completed application from the transferee setting forth the information called for in § 153.090; and
(2) A transfer fee of 20% of the annual permit fee is tendered by the transferee.
(B) No permit may be transferred after the town has notified an operator that suspension or revocation proceedings have been or will be brought against the operator. Any attempt to transfer a permit in violation of this section is hereby declared void and the permit shall be deemed revoked.
(1974 Code, § 18-3-8-14) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)
§ 153.099 SEXUALLY ORIENTED BUSINESS EMPLOYEE LICENSE.
(A) Each individual employed in a sexually oriented business shall be licensed by the town upon approval of an application providing the following information:
(1) The applicant’s name, date and place of birth, height, weight, hair and eye color, permanent residence address and telephone number;
(2) State driver’s license number and Social Security number;
(3) The applicant’s fingerprints on a form provided by the County Sheriff’s Department;
(4) A statement as to the applicant’s convictions, if any, of a “specified criminal” act as identified herein; and
(5) A statement as to whether applicant has been denied the right to be employed or continue to be employed in a sexually oriented business in any other municipality.
(B) A license granted pursuant to this section shall be subject to annual renewal upon written application and finding by the town that the applicant has not been convicted of any “specified criminal act” as defined by this section or has not otherwise committed any act during the existence of the previous license period which would be grounds to deny the license application.
(1974 Code, § 18-3-8-15) (Res. 99-016, passed 9-8-1999; Ord. 99-002, passed 9-8-1999)