Pine Lake City Zoning Code

The purpose of this chapter is to regulate certain types of businesses including, but not limited to, adult entertainment establishments, to the end that the many types of criminal activities frequently engendered by such businesses; the adverse affect on property values and on the public health, safety and welfare of the city; on its citizens and property; and on the character of its neighborhoods and development will be curtailed. This chapter is not intended as a de facto prohibition of legally protected forms of expression. This chapter is intended to represent a balancing of competing interests: reduced criminal activity and protection of neighborhoods and development through the regulation of adult entertainment establishments versus any legally protected rights of adult entertainment establishments and patrons. This chapter is not intended to allow or license any business establishment or activity which would otherwise be unlawful.

(Code 1986, § 6-3-29(10-52); Ord. No. O-94-13, § 16-52, 9-19-1994; Ord. No. 6-04, § 10-52, 6-29-2004)

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

Adult bookstore means an establishment having a substantial or significant portion of its stock in trade, books, printed materials, magazines or other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas or an establishment with a segment or section, comprising at least five percent of its total floor space, devoted to the sale or consisting of printed materials which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

Adult businesses means establishments other than those expressly specified in this chapter, where employees or patrons expose specified anatomical areas or engage in specified sexual activities.

Adult entertainment establishment means a business or establishment where employees or patrons expose specified anatomical areas or engage in specified sexual activities including, but not limited to: adult bookstores, adult businesses, adult motion picture theaters, adult mini-motion picture theaters, adult motion picture arcades, adult video stores, erotic entertainment/dance establishments, escort bureaus and introduction services.

Adult mini-motion picture theater means an enclosed building with a capacity of less than 50 persons used for presenting material distinguished or characterized by an emphasis on matter depicting or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.

Adult 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 still or motion picture machines, projectors or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time and where the images so displayed are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas.

Adult motion picture theater means an enclosed building with a capacity of 50 or more persons, used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.

Adult video store means an establishment having a substantial or significant portion of its stock in trade, videotapes or movies or other reproductions, whether for sale or rent, which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas or an establishment with a segment or section, comprising at least five percent of its net sales from videos which are characterized or distinguished by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

Erotic entertainment/dance establishments means a nightclub, theater or other establishment which features live performances by topless and/or bottomless dancers or entertainers, go-go dancers, strippers or similar entertainers, where such performances are distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.

Escort bureaus and introduction services means any business, agency or persons who, for a fee, commission, hire, reward, profit or other consideration furnishes or offers to furnish names of persons or who introduces, furnishes or arranges for persons who may accompany other persons to or about social affairs, entertainments or places of amusement, or who may consort with others about any place of public resort or within any private quarters.

Heavy commercial zoning means districts greater than 30 contiguous acres that contain commercial establishments on more than 70 percent of the lots.

Seminude means the exposure of one or more, but not all of the following: human genitals or pubic region, buttocks or female breasts below a point immediately above the top of the areola.

Specified anatomical areas means and includes any of the following:

(1)

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

(2)

Human male genitalia in a discernibly turgid state, even if completely or opaquely covered.

Specified sexual activities means and includes any of the following:

(1)

Actual or simulated 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, sapphism or zooerasty.

(2)

Clearly depicted human genitals in a 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 regions, buttocks or female breasts.

(5)

Masochism, erotic or sexually oriented torture, beating or the infliction of pain.

(6)

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

(7)

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

(Code 1986, § 6-3-29(10-53); Ord. No. O-94-13, § 16-53, 9-19-1994; Ord. No. 6-04, § 10-53, 6-29-2004)

Any person violating any of the provisions of this chapter shall upon conviction, be punishable as provided by section 1-9. Each day of operation in violation of this article shall be deemed a separate offense.

(Code 1986, § 6-3-29(10-78); Ord. No. 6-04, § 10-78, 6-29-2004)

(a)

Based on the concerns of several citizens within the city and surrounding community, on April 27, 2004, the mayor announced the development of a community based ordinance restricting adult theme commercial establishments. The initiative was announced in local newspapers, e-mail, and newsletters through the PLAIN newsletter in "Notes from City Hall," during a town hall meeting, and publicly discussed on April 27, May 10, May 25, and a public hearing was held on June 14 for the final discussion.

(b)

Based on the experiences of other urban counties and municipalities including, but not limited to, Atlanta, Georgia; Fulton County, Georgia; and DeKalb County, Georgia; which experiences we believe are relevant to the problems faced by the city, we take note of the notorious and self-evident conditions attendant to the commercial exploitation of human sexuality, which do not vary greatly among generally comparable communities within our country. Moreover, it is the finding of the governing authority that adult entertainment, under certain circumstances, particularly circumstances related to the sale and consumption of alcoholic beverages in so-called nude bars or establishments offering so-called nude entertainment or adult entertainment, begets criminal behavior and tends to create undesirable community conditions. Among the acts of criminal behavior identified with adult entertainment are disorderly conduct, prostitution, drug trafficking and drug use. Among the undesirable community conditions identified with nudity and alcohol are depression of property values in the surrounding neighborhoods, increased expenditure for and allocation of law enforcement personnel to preserve law and order, increased burden on the judicial system as a consequence of the criminal behavior described in this section, and acceleration of community blight by the concentration of such establishments in particular areas. Furthermore, the public health, safety and welfare require that adult entertainment establishments and their locations, operations and employees be regulated and licensed in order to reduce the potential for harm and in order to preserve the quality of urban life in residential and business areas of the community. Therefore, the limitation of adult uses and adult entertainment to certain prescribed areas of the city is in the public welfare, and it is a matter of governmental interest and concern to minimize the occurrence of criminal behavior and undesirable community conditions normally associated with establishments which provide or establish adult entertainment or adult uses. To that end, this article is hereby adopted.

(Code 1986, § 6-3-29(10-51); Ord. No. O-94-13, § 16-51, 9-19-1994; Ord. No. 6-04, § 10-51, 6-29-2004)

(a)

Any adult entertainment establishment operated, conducted or maintained contrary to the provisions of this article shall be and the same is hereby declared to be unlawful and a public nuisance. The city may, in addition, or in lieu of all other remedies, commence an action or proceeding for abatement, removal or enjoinment thereof in the manner provided by law.

(b)

At the date of the adoption of this article, no city property was zoned in a manner that allows for any adult entertainment establishment. There are properties, however, that are within one-half mile from the city boundary that do provide appropriate zoning for said establishments.

(c)

This is considered to constitute reasonable alternative avenues of expression, for small cities with a high residential density. Should adjacent property with appropriate zoning be annexed into the city, they will be permitted according to the requirements of this article.

(Code 1986, § 6-3-29(10-55); Ord. No. O-94-13, § 16-72, 9-19-1994; Ord. No. 6-04, § 10-55, 6-29-2004)

No adult entertainment establishment shall be conducted on any premises which does not comply with all zoning regulations, as well as the building code, fire code, health codes and other ordinances and laws of the city, the county and the state.

(Code 1986, § 6-3-29(10-56); Ord. No. O-94-13, § 16-73, 9-19-1994; Ord. No. 6-04, § 10-56, 6-29-2004)

(a)

No person or licensee shall admit or permit the admission of any individual under the age of 18 or allow such individual to remain within a licensed premises.

(1)

A licensee means any person, association, partnership, corporation or other business entity which has obtained a valid city license for the operation of an adult entertainment establishment.

(2)

A licensed premises means any adult entertainment establishment which has obtained a valid city license.

(b)

No person or licensee shall sell, exchange, barter, trade, give or offer to sell, exchange, barter, trade or give, to any individual under the age of 18 years of age any entertainment, service, material device or thing offered, for sale or otherwise, at an adult entertainment establishment.

(c)

No licensee shall permit or suffer an employee or other person to appear nude or seminude where there is an individual payment offer or solicitation of money occurring between patron and employee.

(d)

No licensee shall permit any employee or patron to use artificial devices or inanimate objects to depict any of the prohibited activities described in this article.

(e)

No licensee shall suffer or permit an employee or any person on the premises to insert an object into her vagina or his or her anal orifice, except for personal hygiene or necessity.

(f)

No licensee shall suffer or permit an employee or any person on the premises to engage in actual or simulated genital masturbation or, in the case of females, fondling of the breasts.

(g)

No licensee shall suffer or permit a male employee or any person on the premises to exhibit an unclothed erect penis.

(h)

No licensee shall suffer or permit an employee or any person on the premises to engage in or simulate bestiality.

(i)

No person, other than a dancer or entertainer while on any licensed premises, shall expose or be permitted to expose to public view with less than a complete and opaque covering of his or her genitals, pubic area, buttocks, anus or anal cleft or cleavage, and if a female, her breasts below a point immediately above the top of the areola.

(j)

No employee or person while on a licensed premises shall be permitted to dance or perform nude or seminude in such a manner as to simulate specified sexual activity with any patron, spectator, employee or other person not employed therein.

(k)

No person, while on a licensed premises, shall, while nude or seminude, be permitted to sit upon or straddle the legs, lap or body of any patron, spectator, employee or other person therein, or to engage in or simulate sexual activity while touching or being touched by the patron, spectator or other person.

(l)

No licensee shall suffer or permit the use of any areas on the premises of such establishment for sexual contact or private dancing performance or entertainment.

(m)

No dancer or entertainer while on a licensed premises shall dance on a platform intended for that purpose which is not raised at least 18 inches from the floor. Furthermore, no dancing shall occur closer than four feet from any patron.

(n)

No licensee shall suffer or permit any signage or advertisement which encourages, solicits, induces or promotes conduct or activities prohibited by this article or anything in conflict with state law.

(o)

No erotic entertainment/dance establishment licensee shall serve, sell, distribute or suffer consumption or possession of any alcoholic beverages or controlled substances upon the premises of a licensee.

(p)

No illegal drugs or controlled substances of any kind shall be allowed, permitted, used, possessed or sold upon the premises, and no gambling shall be allowed or permitted therein.

(Code 1986, § 6-3-29(10-57); Ord. No. O-94-13, § 16-54, 9-19-1994; Ord. No. 6-04, § 10-57, 6-29-2004)

Adult entertainment establishments, businesses or uses shall be located according to the following requirements as defined and measured as stated in this section:

(1)

An adult entertainment establishment may be located only within the commercial zoning districts listed as "heavy commercial zoning," as described and defined by the city zoning ordinance. This is consistent with other cities within the county.

(2)

An adult entertainment establishment shall not be located on a property which is within 200 yards of the property line of any church or other place of worship, public park, public library, public housing development, hospital, public or private school, college or seminary, day care center, recreation center or private residence. The measurement of distances for purposes of this subsection shall be from property line to property line along the shortest possible course, regardless of any customary or common route or path of travel, i.e. as the crow flies.

(Code 1986, § 6-3-29(10-58); Ord. No. O-94-13, § 16-55, 9-19-1994; Ord. No. 6-04, § 10-58, 6-29-2004)

(a)

Age. Employees of adult entertainment establishments shall be not less than 18 years of age.

(b)

Disqualification due to criminal record; exception. No person shall be employed in any capacity whatsoever including, but not limited to, performers, entertainers, waiters, bouncers, bartenders, disc jockeys and musicians, who have been convicted in this or any other city or state or in any federal court within five years immediately prior to the application for employment of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, illegally dealing in narcotics, sex offenses, or any charge relating to the manufacture or sale of intoxicating liquors, or any other felony or misdemeanor involving moral turpitude, or for whom any outstanding warrant exists on which service has not been perfected. The expression "be employed" shall include all work done or services performed while in the scope of employment on the premises and elsewhere than on the licensed premises, for compensation or otherwise. Notwithstanding, this section shall not apply to an independent contractor who performs accounting, legal, administrative, repair or maintenance services for a licensee.

(c)

Work permit; required; independent contractors; exception. A permit to work in or be employed by an adult entertainment establishment, whether for compensation or otherwise, shall be required for all employees thereof. For the purpose of this article, independent contractors, such as entertainers employed or hired by any adult entertainment establishment, shall be licensed as employees, regardless of the business relationship with the owner or licensee of any adult entertainment establishment. Each independent contractor shall be required to have and maintain his or her separate business license. Notwithstanding, this subsection shall not apply to an independent contractor who performs accounting, legal, administrative, repair or maintenance services for licensee. No person requiring a permit may be employed by or work in an establishment until such person has filed an application, paid the fee, as set forth in the schedule of fees and charges, and obtained a work permit from the director of administration.

(d)

Contents of work permit application; investigation of applicant; issuance. An application for a permit shall include, but shall not be limited to, the name, address, business name and address, date of birth and prior arrest record of the applicant. The director of administration shall make a complete search relative to any police record of the applicant. If there is no record of a violation of subsection (b) of this section, or of any other section of this article, the director of administration shall issue a permit to the applicant.

(e)

Denial; application for hearing with public safety director; decision; appeal to city council. Any applicant denied a permit may, within ten days of the denial, apply to the public safety director for a hearing. The decision of the public safety director, after hearing, may be appealed to the city council.

(f)

Expiration of permit for employment. Any permit for employment issued under this article shall expire 12 months from the date of issuance unless earlier revoked or suspended. The director of administrations may prescribe reasonable fees for certifying the eligibility for employment.

(g)

Availability of permit for inspection. Employees holding permits issued pursuant to this article shall at all times during their working hours have such permits available for inspection at the premises.

(Code 1986, § 6-3-29(10-59); Ord. No. O-94-13, § 16-57, 9-19-1994; Ord. No. 6-04, § 10-59, 6-29-2004)

It shall be unlawful for any person, association, partnership, corporation or other business entity to engage in, operate, conduct or carry on, in or upon any premises, an adult entertainment establishment without first having complied with the provisions of this article, or without a currently valid city license for the operation of an adult entertainment establishment. No license issued under this article shall condone or make legal any activity thereunder if the same is deemed illegal or unlawful under the laws of the state or the United States or under any other ordinance, rule or regulation of the city. The license shall be conspicuously displayed at all times within the premises.

(Code 1986, § 6-3-29(10-76); Ord. No. O-94-13, § 16-56, 9-19-1994; Ord. No. 6-04, § 10-76, 6-29-2004)

The city will review all license permit applications in a timely manner. The city's director of administration will respond to the applicant within 14 day as to whether the permit was accepted or submitted to attorney for further review. Attorney review will be completed in ten days.

(1)

Grant of privilege for term of license. All licenses shall be a mere grant of privilege to carry on such business during the term of the license, subject to all the terms and conditions imposed by this article and related laws, applicable provisions of this Code and other ordinances and resolutions of the city relating to such business.

(2)

Wording. All licenses under this article shall have printed on the front these words:

"This license is a mere privilege subject to be suspended and revoked under the provisions of the ordinances of the City of Pine Lake."

(3)

Separate license for each business. A separate license shall be required for each place of business.

(4)

Age of licensee. No license shall be issued to any person who is less than 21 years of age.

(5)

Application; contents. Application for a license shall be written and on forms supplied by the city clerk. Such application shall state the name and address of the applicant; the place where the proposed business is to be located; the nature and character of the business to be carried on; if a partnership, the names of the partners; if a corporation, the name of the officers and shareholders; if other business entity, then the names of all persons holding any ownership or managerial interest therein; and such other reasonable information as may be required by the director of administrations.

(6)

Duty of applicant to supply data, information and records. All applicants shall furnish all data, information and records requested of them by the city and pay an administrative investigation fee to be determined by the director of administrations. Failure to furnish such data, information and records within 30 days from the date of such request shall mean an automatic denial of the license.

(7)

Definition. For the purpose of this division, the term "applicant" means and shall include a person and, in the case of a partnership or corporation, all partners, officers, directors, principals, and shareholders of the partnership or corporation.

(8)

Completion of application required. Each application must be complete in its entirety before being accepted by the city for filing and processing.

(9)

Plans furnished by applicant; compliance with city codes. All applicants for licenses shall furnish plans of the proposed premises. The applicant shall comply with all zoning, building, health and similar city codes.

(10)

Verification of application under oath. Each application for an adult entertainment establishment license shall be verified and acknowledged under oath to be true and correct by:

a.

If the applicant is an individual, the individual;

b.

If by a partnership, by the manager or general partner;

c.

If a corporation, by the president of the corporation; and

d.

If any other organization or association, by the chief administrative official.

(Code 1986, § 6-3-29(10-77); Ord. No. O-94-13, § 16-58, 9-19-1994; Ord. No. 6-04, § 10-77, 6-29-2004)

Whenever the governing authority finds that the application of this article would unreasonably discriminate among providers of functionally equivalent personal wireless services or prohibit or have the effect of prohibiting the provision of personal wireless services, a conditional use permit waiving any or all of the provisions of this article may be granted.

(Code 1986, § 6-3-27(XV); Ord. No. 4-04, 5-4-2004)