(a)

Purpose. It is the purpose of this article to regulate adult entertainment establishments in order to promote the health, safety, and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects and concentrations of adult entertainment establishments within the city. The provisions of this article have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor effect of this article to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this article to condone or legitimize the distribution of obscene material.

(b)

Findings. Based on evidence concerning the adverse secondary effects of adult uses presented in hearings and in reports made available to the board, and on findings incorporated in the cases of City of Erie v. Pap's A.M., 529 U.S. 277 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 426 U.S. 50 (1976); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); Thomas v. Chicago Park District, 122 S. Ct. 775 (2002); California v. LaRue, 409 U.S. 1 09 (1972) City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); and other cases; and reports of secondary effects occurring in and around adult entertainment establishments, including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis., Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma County, Oklahoma; Cleveland, Ohio; Dallas, Texas; Tucson, Arizona; St. Croix County, Wisconsin; Bellevue, Washington; Newport News, Virginia; New York, New York; Phoenix, Arizona; and from summaries of several of the foregoing secondary effects reports; and also on 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 board finds:

(1)

The nature of adult establishments is such that they are recognized as having adverse secondary characteristics, particularly when they are accessible to minors and located near residential property or related residential uses, such as schools, day care centers, libraries, churches or parks.

(2)

The concentration of adult establishments has an adverse effect upon the use and enjoyment of adjacent areas.

(3)

The nature of adult establishments requires that they not be allowed within certain zoning districts, or within minimum distances from each other or residential and related residential uses. Regulation of adult establishments is necessary to ensure that the adverse secondary effects would not contribute to or enhance criminal activity in the area of residential uses or contribute to the blighting or downgrading of the surrounding property and lessening of its value.

(4)

The planning and zoning commission, following notice thereof, held a public hearing on the ordinance from which this article is derived, and has considered testimony, written comments, and material from the public by and through said hearing, and has recommended approval of the zoning changes for adult uses.

(5)

This article is consistent with the Downtown Mandan and Memorial Highway Redevelopment Plan, purposes, goals, and policies:

a.

To establish Downtown Mandan as a progressive pedestrian-oriented district using smart growth initiatives that are responsive to local vernacular design, community values, and adaptable to technological changes.

b.

To improve image and character through investment, beautification, and heritage.

c.

To encourage new mixed-use development, including commercial, residential and educational, to maintain a lively, attractive, and safe place to live, work and visit.

(Code 1994, § 21-11-01; Ord. No. 963, § 2, 6-17-2003; Ord. No. 1033, 1-29-2008)

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Adult cabaret entertainment means:

(1)

Any exhibition, performance or dance of any type conducted in any premises where such exhibition, performance, or dance involves a person who performs in such clothing or sheds clothing to a point where the area below the top to the bottom of the areola of a female breast or any portion of pubic area, anus, buttocks, vulva or genitals are covered by opaque material, 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;

(2)

Any exhibition, performance or dance which includes any of the following:

a.

The performance of acts, or simulated acts, of sexual intercourse;

b.

Masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law;

c.

The actual or simulated touching, caressing or fondling of the breast, buttocks, anus or genitals;

d.

The actual or simulated displaying of the pubic hair, anus, vulva or genitals, or the nipples of the female; or

e.

Appearances, entertainment or performances of any type consisting of or containing any nude performer, or topless female dancer; or

(3)

Any exhibition, performance or dance which is intended to sexually stimulate any member of the public and which is conducted on a regular basis or as a substantial part of the premises activity. This includes, but is not limited to, any such exhibition, performance or dance performed for, arranged with, or engaged in with, fewer than all members of the public on the premises at that time, with separate consideration paid, either directly or indirectly, for such performance, exhibition or dance and which is commonly referred to as table dancing, couch dancing, taxi dancing, lap dancing, private dancing or straddle dancing.

Adult establishments or adult uses includes adult arcades, adult bookstores, adult cabarets, adult companionship establishments, adult motion picture theaters, adult motion picture rental, adult mini-motion picture theaters, adult massage parlors, adult steamroom/bathhouse/sauna facilities, adult companionship establishments, adult rap/conversation parlors, adult health/sport clubs, adult novelty businesses, adult motion picture arcades, adult modeling studios, adult hotels/motels, adult body painting studios, and other premises, enterprises, establishments, businesses or places open to some or all members of the public, at or in which there is an emphasis on the presentation, display, depiction, or description of specified sexual activities or specified anatomical areas, which are capable of being seen by members of the public.

Adult use - arcade means any place to which the public is permitted or invited, but from which minors are excluded by reason of age, wherein coin-operated or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors or other image-producing devices are regularly maintained to show images to one person per machine, located within individual viewing areas, cubicles or booths and where the images so displayed are distinguished or characterized by their emphasis upon matters exhibiting specified sexual activities or specified anatomical areas.

Adult use - body painting studio means an establishment or business which provides the service of applying paint or other substance, whether transparent or nontransparent, to or on the body of a patron when such body is wholly or partially nude in terms of specified anatomical areas.

Adult use - bookstore means a building or portion of a building used for the barter, rental or sale of items of printed matter, including publications, books, magazines, and other periodicals, pictures, slides, records, audio tape, CD, DVD, videotape or motion picture film, if such building or portion of a building is not open to the public generally but only to one or more classes of the public, excluding any minor by reason of age or if such items are distinguished or characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas.

Adult use - cabaret means a building or portion of a building used for providing dancing or other live entertainment or activity as defined in adult cabaret entertainment, if such building or portion of a building excludes minors by virtue of age or if such dancing, activity or other live entertainment is distinguished or characterized by an emphasis on the presentation, display, depiction or description of specified sexual activities or specified anatomical areas.

Adult use - companionship establishment means a companionship establishment which excludes minors by reason of age, or which provides the service of engaging in or listening to conversation, talk, or discussion between an employee of the establishment and a customer or patron, if such service is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.

Adult use - health/sport club means a health/sport club which excludes minors by reason of age, or if such club is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.

Adult use - hotel/motel means an adult hotel or motel from which minors are specifically excluded from patronage and wherein material is presented which is distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

Adult use - massage parlor, health club means a massage parlor or health club which restricts minors by reason of age, and which provides the services of massage if such service is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.

Adult use - mini-motion picture theater means an enclosed building or portion of a building with a capacity for less than 50 persons used for presenting materials or motion pictures, if such building or portion of a building as a prevailing practice excludes minors by virtue of age, or if such materials or motion pictures are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas as defined in this section, for observation by patrons of the theater.

Adult use - modeling studio means an establishment whose major business is the provision, to customers, of figure models who are so provided with the intent of providing sexual stimulation or sexual gratification to such customers or patrons and who engage in specified sexual activities or display specified anatomical areas while being observed, painted, painted upon, sketched, drawn, sculptured, photographed, or otherwise depicted by such customers or patrons.

Adult use - motion picture arcade means any place to which the public is permitted or invited wherein coin- or slug-operated or electronically, electrically or mechanically controlled or operated still or motor picture machines, projectors or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, if such place as a prevailing practice excludes minors by virtue of age or if the images so displayed are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas.

Adult use - motion picture theater means an enclosed building or portion of a building with a capacity of 50 or more persons used for presenting materials or motion pictures, if such building or portion of a building as a prevailing practice excludes minors by virtue of age or if such material or motion pictures are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, for observation by patrons of the theater.

Adult use - novelty business means a business which has as a principal activity the sale of devices which stimulate human genitals or devices which are designated for sexual stimulation or the sale of sexually oriented devices.

Adult use - sauna means a sauna which excludes minors by reason of age or which provides a steam bath or heat bathing room used for the purpose of bathing, relaxing, or reducing, utilizing steam or hot air as a cleaning, relaxing or reducing agent, if the service provided by the steam room/bathhouse facility is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.

Adult use - steam room/bathhouse facility means a building or portion of a building used for providing a steam bath or heat bathing room used for the purpose of pleasure, bathing, relaxation, or reducing, utilizing steam or hot air as a cleaning, relaxing or reducing agent if such building or portion of a building restricts minors by reason of age or if the service provided by the steam room/bathhouse facility is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.

Adult uses - accessory means a use, business, or establishment having 20 percent or less of its stock in trade or floor area allocated to, or 30 percent or less of its gross receipts derived from, movie rentals, novelties or magazine sales, of which there is an emphasis on the presentation, display, depiction, or description of specified sexual activities or specified anatomical areas.

Adult uses - principal means a use, business, or establishment:

(1)

Having, as one of its principle business purposes, an emphasis on the presentation, display, depiction or description of specified sexual activities or specified anatomical areas; or

(2)

Having a substantial or significant portion of its stock in trade or floor area allocated to the sale of materials, films, services or activities, of which there is an emphasis on the presentation, display, depiction or description of specified sexual activities or specified anatomical areas. Alcoholic beverage-licensed premises which offer adult cabaret entertainment shall be deemed an adult use - principal, regardless of allocated floor area, and shall comply with all of the requirements for an adult use - principal.

Massage means the manipulation of body muscle or tissue by rubbing, stroking, kneading, or tapping by hand or mechanical device.

Massage business means any establishment or business wherein massage is practiced, including establishments known as health clubs, physical culture studios, massage studios or massage parlors.

Nude performer or nude dancer means any person who performs or appears in attire such that any portion of the pubic area, anus vulva or genitals is exposed to view or not covered with an opaque material.

Sexually oriented devices means, without limitation, any artificial or simulated specified anatomical area or any other device or paraphernalia that is designed in whole or in part for specified sexual activities.

Specified anatomical areas means:

(1)

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

(2)

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

Specified sexual activities means:

(1)

Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of a sexual relationship, or the use of excretory functions in the context of a sexual relationship, and any of the following sexually-oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty.

(2)

Clearly depicted human genitals in the state of sexual stimulation, arousal or tumescence.

(3)

Use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation.

(4)

Fondling or touching of nude human genitals, pubic region, buttocks or female breast.

(5)

Situations involving a person, any of whom are nude, clad in undergarments or in sexually revealing costumes, and who are engaged in activities involving the flagellation, torture, fettering, binding or other physical restraint of any such persons.

(6)

Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being.

(7)

Human erection, urination, menstruation, vaginal or anal irrigation.

Topless female performer or topless female dancer means any female who performs or appears in attire such that any portion of her breasts below the top of the areola is exposed to view or is not covered with an opaque material.

(Code 1994, § 21-11-02; Ord. No. 963, § 3, 6-17-2003; Ord. No. 1033, 1-29-2008)

(a)

General provisions. Adult uses shall be subject to the following general provisions:

(1)

Activities classified as obscene are not permitted and are prohibited. In no instance shall the application of or interpretation of this article be construed to allow an activity otherwise prohibited by state law or city ordinance.

(2)

Adult uses, either principal or accessory, shall be prohibited from locating in any building which is also utilized for residential purposes.

(3)

An adult use which does not qualify as an accessory use pursuant to this section shall be classified as an adult use - principal.

(b)

Adult use - principal.

(1)

Adult use - principal shall be a permitted use in the MB, MC and MD Industrial Districts, subject to the regulations, location and separation criteria outlined in this article.

(2)

Adult use - principal shall be located at least 500 radial feet, as measured in a straight line from the closest point of the property line of the building in which the adult use- principal is located, to the property line of:

a.

A zoning district in which residential uses are specifically listed as a permitted or conditional use.

b.

A licensed day care center.

c.

A public or private educational facility, classified as a kindergarten, elementary, junior high or senior high.

d.

A public library.

e.

A public park.

f.

Any church or church related organization.

g.

Another adult use - principal.

(3)

No adult use - principal shall be located in the same building or upon the same property as another adult use - principal.

(4)

No building, premises, structure or other facility in which sexually oriented devices, as defined in this chapter, are displayed or offered for sale shall contain any other kind of adult establishment or adult use.

(5)

Adult use - principal shall adhere to the following signing regulations:

a.

Sign messages shall be generic in nature and shall only identify the name of the business.

b.

Signs shall comply with the requirements of size and number for the district in which they are located or as required by the building code.

(c)

Adult use - accessory. Adult uses - accessory shall be permitted in all commercial districts, provided the accessory use conforms to the provisions of this subdivision.

(1)

Adult use - accessory shall:

a.

Comprise no more than 20 percent of the floor area of the establishment in which it is located.

b.

Comprise no more than 30 percent of the gross receipts of the entire business operation.

c.

Not involve or include any activity except the sale or rental of merchandise.

d.

Not be located in any building or portion of a building in which an adult use, either principal or accessory, is located.

(2)

Adult use - accessory shall be restricted from and prohibit access to minors by physical separation of such items from areas of general public access:

a.

Movie rentals. Display areas shall be restricted from general view and the access of which shall be in clear view and under the control of persons responsible for operation.

b.

Magazines. Publications classified or qualifying as adult uses shall not be physically accessible to minors and shall be covered with a wrapper or other means to prevent display of any material other than the publication title.

c.

Other uses. All other adult uses - accessory, such as adult use - novelty, shall comply with the intent of this section.

(3)

Adult use - accessory shall be prohibited from both internal and external advertising and signing of adult materials and products.

(Code 1994, § 21-11-03; Ord. No. 963, 6-17-2003; Ord. No. 1033, 1-29-2008)

(a)

Any adult use lawfully operating prior to June 27, 2003, that is in violation of section 105-5-3(b)(2), shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed two years, unless sooner terminated for reason or voluntarily discontinued. In no instance shall a nonconforming use be allowed to structurally expand the use on the lot on which it is located when the use became a nonconforming use, or expand the adult use to include another lot on which the adult use was not located when it became nonconforming, or in any way be increased, enlarged, extended or altered, except that the use may be changed to a conforming use.

(b)

If the building in which a temporary nonconforming use is located is destroyed by any means to an extent of greater than 50 percent of its market value, or if the building in which the temporary nonconforming use is vacant for more than six months, an adult use shall not be re-established unless it is in conformance with this article.

(c)

Any adult entertainment establishment or use which is either made nonconforming by this article or which is an existing nonconforming use shall be terminated within the time provided in subsection (a) of this section. However, such termination date may be extended upon approval by the board of an application filed with the city administrator within three months of the effective date of the ordinance from which this article is derived, requesting an extension to such amortization period. The board's decision on whether or not to approve any extension and the length of time of such period shall be based upon the applicant clearly demonstrating extreme economic hardship based upon an irreversible financial investment or commitment made prior to June 3, 2003, which precludes reasonable alternative uses of the subject property. The applicant shall also include the request for an extension an amortization schedule demonstrating the financial investment and time period being requested.

(d)

An adult establishment business lawfully operating as a conforming use is not rendered nonconforming by the location, subsequent to the grant or renewal of an adult entertainment license, of a use listed in section 105-5-3(b)(2) within 500 feet of the adult establishment. This provision applies only to the renewal of a valid license, and does not apply when an application is made for a license after the applicant's previous license has expired or been revoked.

(Code 1994, § 21-11-04; Ord. No. 963, § 5, 6-17-2003; Ord. No. 1033, 1-29-2008)

(a)

Any person violating any provision of this article related to adult uses is guilty of a Class B misdemeanor and, upon conviction, is subject to the penalties as prescribed under state law.

(b)

Any violation of this article related to adult uses shall be a basis for the suspension or revocation of the certificate of occupancy for the property or building in or on which the adult use is located. In the event the board proposes to revoke or suspend a certificate of occupancy, the property owner shall be notified in writing of the basis for such proposed suspension or revocation. The board shall hold a hearing for the purpose of determining whether to revoke or suspend the certificate of occupancy, which hearing shall be within 30 days of the date of the notice.

(c)

The board shall determine whether to revoke or suspend a certificate of occupancy within 30 days after the close of the hearing or within 60 days of the date of the notice, whichever is sooner, and shall notify the property owner of its decision within that period.

(Code 1994, § 21-11-05; Ord. No. 963, § 6, 6-17-2003; Ord. No. 1033, 1-29-2008)