(a)

Purpose and intent of this section. It is the purpose of this section to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the continued deleterious location and concentration of sexually oriented businesses within the City of North Charleston. The provisions of this section 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 or effect of this section 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 or effect of this section to condone or legitimize the distribution of obscene materials.

(b)

Definitions.

(1)

Adult arcade means any place to which the public is permitted or invited wherein 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 to five (5) or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of "specified sexual activities" or "specified anatomical areas."

(2)

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

a.

Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which depict or describe "specified sexual activities" or "specified anatomical areas"; or

b.

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 an adult bookstore or adult video store. Such other business purposes will not serve to exempt such commercial establishment from being categorized as an adult bookstore or adult video store so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials which depict or describe "specified sexual activities" or "specified anatomical areas."

(3)

Adult cabaret means a club, restaurant, or similar commercial establishment which regularly features:

a.

Persons who appear in a state of nudity; or

b.

Live performances which are characterized by the exposure of "specified anatomical areas"; or

c.

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

(4)

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

a.

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 this adult type of photographic reproductions; or

b.

Offers a sleeping room for rent for a period of time that is less than ten (10) hours; or

c.

Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten (10) hours.

(5)

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."

(6)

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

(7)

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.

(8)

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.

(9)

Establishment means and includes any of the following:

a.

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

b.

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

c.

The additions of any sexually oriented business to any other existing sexually oriented business; or

d.

The relocation of any sexually oriented business.

(10)

Knowingly means to do "something voluntarily, to do it deliberately, not to do something by mistake or by accident or even negligently." United States v. Bay State Ambulance, 874 F.2d 20 (1 ^st Cir. 1989); See also United States v. Fuller, 162 F.3d 256, 260 (4 ^th Cir. 1998)(defining "knowingly" as "to act with knowledge of the facts that constitute the offense but not necessarily with knowledge that the facts amount to illegal conduct.") "Knowingly" or "knowledge" shall also be satisfied for purposes of this ordinance in instances of "willful blindness" or "deliberate indifference" where the evidence indicates that a defendants purposefully closed his eyes to avoid knowing what occurred around him/her. See United States v. Ruhe, 191 F.3d 376 (4 ^th Cir. 1999); United States v. Schnabel, 939 F.2d 197 (4 ^th Cir. 1991); United States v. Gruenberg, 989 F.2d 971 (8 ^th Cir. 1993).

(11)

Permittee and/or licensee means a person in whose name a permit and/or license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit and/or license.

(12)

Nude model studio means any place where a person who appears in a state of nudity or displays "specified anatomical areas" is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration.

(13)

Nudity or a state of nudity means the appearance of a human bare buttock, anus, male genitals, female genitals, or female breast.

(14)

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

(15)

Principal business purpose means, with respect to the definition of a sexually oriented business, a business which (a) offers live nudity, hardcore sexual material, or sexual devices, (b) as a consistent and intentional objective of the business, and one of the following: (i) promotes itself as offering the same, or (ii) derives a substantial portion of its revenue from such activities.

(16)

Seminude means a state of dress in which clothing covers no more than the genitals, pubic region, and areolas of the female breast, as well as portions of the body covered by supporting straps or devices.

(17)

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

a.

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

b.

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 seminude.

(18)

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

(19)

Specified anatomical areas means the male genitals in a state of sexual arousal and/or the vulva or more intimate parts of the female genitals.

(20)

Specified sexual activities means and includes any of the following:

a.

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

b.

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

c.

Masturbation, actual or simulated; or

d.

Excretory functions as part of or in connection with any of the activities set forth in a. through c., above.

(21)

Substantial enlargement of a sexually oriented business means the increase in floor areas occupied by the business by more than twenty-five (25) per cent, as the floor areas existed on February 22, 1990.

(22)

Transfer of ownership or control of a sexually oriented business means and includes any of the following:

a.

The sale, lease, or sublease of the business;

b.

The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or

c.

The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.

(23)

Introductory service. Any person who, for financial consideration, offers to arrange for a direct meeting between any person and any other person for social or personal purposes not connected with or forming a part of another lawful business or professional activity.

(c)

Classification. Sexually oriented businesses are classified as follows:

(1)

Adult arcades;

(2)

Adult bookstores or adult video stores;

(3)

Adult cabarets;

(4)

Adult motels;

(5)

Adult motion picture theaters;

(6)

Adult theaters;

(7)

Escort agencies;

(8)

Nude model studios;

(9)

Sexual encounter centers; and

(10)

Introductory services.

(d)

Prohibited conduct:

(1)

A licensee or an employee shall not knowingly allow possession, use, or sale of controlled substances on the premises;

(2)

A licensee or an employee shall not knowingly allow prostitution on the premises;

(3)

A licensee or an employee shall not knowingly allow any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sexual conduct to occur in or on the permitted and/or licensed premises;

(4)

A licensee shall not apply for or hold multiple licenses for the same location under differing names or knowingly allow another person or entity to apply for or hold business licenses for the premises;

(5)

Operation in a location or manner inconsistent with any requirements of this ordinance or other ordinances of the City of North Charleston.

(e)

Location of sexually oriented business.

(1)

All sexually oriented businesses shall be located within an M-1 or M-2 zoning district. A person commits a misdemeanor if he operates or causes to be operated a sexually oriented business outside of an M-1 or M-2 district.

(2)

A person commits a misdemeanor if he operates or causes to be operated a sexually oriented business within one thousand (1,000) feet of:

a.

The property line of a lot devoted to use by a church or other place of worship;

b.

A boundary line of any residential district;

c.

The property line of a public park adjacent to any residential district or any public or private elementary or secondary school;

d.

The property line of a lot devoted to residential use; or

e.

The property line of a lot devoted to academic, extracurricular, or recreational use by a public or private elementary or secondary school.

(3)

A person commits a misdemeanor if he causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within one thousand (1,000) feet of another sexually oriented business.

(4)

A person commits a misdemeanor if he 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 areas of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business.

(5)

For the purpose of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church or public or private elementary or secondary school, or to the nearest boundary of an affected public park, residential district, or residential lot.

(6)

For purposes of this ordinance, the distance between any two (2) sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.

(7)

Any sexually oriented business lawfully operating on February 22, 1990, or the date of annexation (if later), which has thereafter continuously lawfully operated, and which is in violation of subsection (e)(1) through (e)(4) of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed two (2) years, unless sooner terminated for any reason or voluntarily discontinued for a period of one year 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 (2) or more sexually oriented businesses are within one thousand (1,000) 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 nonconforming. Further, the provisions of section 4-5, relating to nonconforming uses, shall not apply to businesses governed by the terms of this section.

(8)

A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business permit and/or license, of a church, public park, residential district or a residential lot within one thousand (1,000) feet of the sexually oriented business or within one mile of a public or private elementary or secondary school. This provision applies only to the renewal of a valid business license, and does not apply when an application for a business license is submitted after a business license has expired or has been revoked.

(f)

Additional regulations for adult motels.

(1)

Evidence that a sleeping room in a hotel, motel, or a similar commercial establishment has been rented and vacated two (2) or more times in a period of time that is less than ten (10) hours creates a rebuttable inference that the establishment is an adult motel as that term is defined in this chapter [appendix].

(2)

A person commits a misdemeanor if, as the person in control of a sleeping room in a hotel, motel, or similar commercial establishment that is not located and operated in compliance with this section and with the City of North Charleston's business license ordinances, he rents or subrents a sleeping room to a person and, within ten (10) hours from the time the room is rented, he rents or subrents the same sleeping room again.

(3)

For purposes of subsection (f)(2) of this section, the terms "rent" or "subrent" mean the act of permitting a room to be occupied for any form of consideration.

(g)

Regulations pertaining to exhibition of sexually explicit films or videos.

(1)

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 (150) square feet of floor space, a film, video cassette, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:

a.

Upon application for a business 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 (32) square feet of floor area. The diagram shall also designate the place at which the business license 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 all areas of the interior of the premises to an accuracy of plus or minus six (6) inches. The zoning administrator 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.

b.

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

c.

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

d.

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

e.

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 patron is permitted access for any purpose excluding restrooms. Restrooms may not contain video display, camera, or reproduction equipment. If the premises has two (2) 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.

f.

It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises to ensure that the view area specified in subsection (g)(1)e. of this section remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and 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 to subsection (g)(1)a. of this section.

g.

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

h.

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 one footcandle as measured at the floor level.

i.

It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described above is maintained at all times that any patron is present in the premises.

(2)

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

(h)

Exemptions. In cases of modeling or art classes, it is a defense to prosecution under this ordinance that a person appearing in a state of nudity did so in a modeling or art class operated:

(1)

By a proprietary school, licensed by the State of South Carolina; a college, junior college, or university supported entirely or partly by taxation; or

(2)

By 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; and

(3)

In a structure:

a.

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

b.

Where in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and

c.

Where no more than one nude model is on the premises at any one time.

(i)

Enforcement. A person who: (1) proposes to operate; (2) operates a sexually oriented business without a valid business license or in violation of this ordinance; or (3) causes to be operated a sexually oriented business without a valid business license or in violation of this ordinance - is subject to a suit for declaratory or injunctive relief and/or an administrative action for business license revocation, as well as prosecution for any criminal violations which may be present. With respect to the provisions of these ordinances, criminal violations shall be punishable by a fine of five hundred dollars ($500.00) or thirty (30) days imprisonment. With respect to provisions of state or federal laws, criminal violations shall be punishable as provided by such state or federal law. With respect to business license denials, applicants desiring judicial review shall notify the city's zoning administrator of their desire for judicial review within five (5) days of receiving notification of the denial. The city shall then issue the applicant a temporary provisional license permitting operation during the pendency of circuit court proceedings and shall file suit within ten (10) business days and request expedited circuit court review. The issuance of a temporary provisional license as described herein shall create no vested rights and the city shall bear no costs associated with the applicant's operation or preparation for operation, including (but not limited to) costs of inventory, licenses, insurance, advertising, construction, purchase, or remodeling.

(j)

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

(k)

Savings clause. After the effective date of this Act, October 28, 2004, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this Act, October 28, 2004 and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

(Ord. No. 1986-13, 3-27-86; Ord. No. 1990-20, 4-12-90; Ord. No. 1991-25, 6-27-92; Ord. No. 2004-60, 10-28-04; Ord. No. 2006-52, 7-25-06)