The purpose of this article to establish reasonable and uniform regulations to prevent the concentration of sexually oriented businesses or their close proximity to incompatible uses, while permitting the location of sexually oriented businesses in certain areas. It is the further purpose of this article to regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the City of Roswell.

From and after the adoption of this article, no sexually oriented business shall be established, located or operated in any zone in the city other than within the heavy industrial district (I-2) with a special use permit, as specified in this article, and subject to all regulations and conditions enumerated herein. Any business which did not constitute an adult oriented business or a sexually oriented business prior to the adoption of this article, but which would be deemed a sexually oriented business under this article, which was legally established and for which all applicable permits and licenses were issued and remain effective as of the adoption date of this article shall not be deemed to be a sexually oriented business subject to the provisions of this article, except to the extent: (1) such business ceases operating in conformity with any permit issued in conjunction with the establishment thereof; or (2) the floor area of such business utilized for the sale of merchandise distinguished by or characterized by an emphasis upon specified sexual activities or specified anatomical areas increases by more than 15% over the floor area utilized for such purpose and existing as of the adoption date of this article; or (3) the retail inventory (measured by cost to the business owner of the inventory or by the retail value of the merchandise) distinguished or characterized by an emphasis upon specified sexual activities or specified anatomical areas increases by more than 15% over the amount of such inventory being merchandised as of the adoption date of this article; or (4) the number of performances distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities increases by 15% in any applicable period of time.

Any use of real property as a sexually oriented business existing on the effective date of this ordinance, shall be regarded as a nonconforming use which may be continued. This section does not authorize a business subject to its terms to expand or materially change the nature of its operation during the period in which such business is allowed under this section to continue its operation. Notwithstanding this or any other provision, any discontinuance or abandonment of the use of any lot or structure for a period of six months as a legal nonconforming sexually oriented business shall result in a loss of the legal nonconforming status of such use.

No sexually oriented business shall be established, located, or operated within certain distances of certain specified land uses or zones as set forth below:

A.

Sexually oriented businesses must obtain a special use permit in the I-2 industrial zoning district from the planning and zoning commission.

B.

No such business shall be established or located within 750 feet of any other sexually oriented business.

C.

No such business shall be established or located within 750 feet of any existing residential zone (to the extent such residential zone may feasibly be used for a residential dwelling unit of a type permitted by the city), residential use, park, public building (which the public is authorized to attend), religious institution, school, boys club, girls club, child care facility, licensed, or similar existing youth organization.

D.

The distances set forth above shall be measured in a straight line from the nearest property lines of the sexually oriented business to the property lines of the property so zoned or used without regard to intervening structures.

A.

The planning and zoning commission shall determine whether the special use permits contains all of the information required by the provisions of this article. If it is determined that the application is not complete, or that it violates any part of this article, the applicant shall be denied a special use permit.

B.

The planning and zoning commission shall grant the special use permit for the sexually oriented business upon findings that the proposed business meets the locational criteria of section 2 and section 4; and that the applicant has met all of the development and performance standards and requirements of section 13 unless the application is denied for one or more of the reasons set forth in subsection F hereof. The permittee shall post the permit conspicuously in the sexually oriented business premises so that it may be easily read at any time by persons entering the sexually oriented business.

C.

If the planning and zoning commission grants the special use permit or if the planning and zoning commission neither grants nor denies the special use permit within 45 days after it is stamped as received by the City of Roswell and the application is considered complete, the applicant may begin operating the sexually oriented business for which the permit was sought, subject to strict compliance with the development and performance standards and requirements of section 13.

D.

The planning and zoning commission shall deny the application for any of the following reasons:

1.

The building, structure, equipment, or location used by the business for which a sexually oriented business permit is required do not comply with the requirements and standards of the health, zoning, fire and safety laws of the city, the county, and the State of New Mexico, or with the locational or development and performance standards and requirements of these regulations;

2.

The applicant, his or her employee, agent, partner, director, officer, shareholder or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for an adult business permit, or has failed to provide information reasonably necessary for issuance of the permit on the application form;

3.

An applicant is under 18 years of age;

4.

The required application fee has not been paid;

5.

The sexually oriented business does not comply with the city's zoning ordinance;

6.

The granting of the permit would violate a statute, ordinance, or court order;

7.

The applicant has had a permit issued pursuant to this ordinance which has been suspended or revoked at the time of application;

8.

Applicant has been convicted of a criminal act specified in section 6, subsection C, paragraph 12 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 of a misdemeanor offense for the specified criminal act, 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 of a felony offense for the specified criminal act, or

c.

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 convictions are of two or more misdemeanors for the specified criminal acts occurring within any 24-month period.

d.

The fact that a conviction is being appealed shall have no effect on disqualification of the applicant.

A.

It shall be unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the city the operation of a sexually oriented business unless the person first obtains and continues to maintain in full force and effect a permit from the city as herein required ("sexually oriented business permit").

B.

Upon approval of a special use permit by the planning and zoning commission, every person who proposes to maintain, operate or conduct a sexually oriented business in the city shall request a permit application with the city business licensing clerk upon a form provided by the city and shall pay a filing fee, as established by resolution adopted by the city council from time to time, which shall not be refundable.

C.

Sexually oriented business permits are nontransferable, except in accordance with section 7. Therefore, all applications shall include the following information:

1.

If the applicant is an individual, the individual shall state his or her legal name, including any aliases, address, and submit satisfactory written proof that he or she is at least 18 years of age.

2.

If the applicant is a partnership, the partners shall state the partnership's complete name, address, names of all partners, whether the partnership is general or limited, and attach a copy of the partnership agreement, if any.

3.

If the applicant is a corporation, the corporation shall provide its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of New Mexico, the names and capacity of all officers and directors, the name of the registered corporate agent and the address of the registered office for service of process.

4.

If the applicant is an individual, he or she shall sign the application. If the applicant is other than an individual, an officer of the business entity or an individual with authority to bind the entity shall sign the application.

5.

If the applicant intends to operate the sexually oriented business under a name other than that of the applicant, the applicant shall file the fictitious name of the sexually oriented business and show proof of registration of the fictitious name.

6.

A description of the type of sexually oriented business for which the permit is requested and the address where the sexually oriented business is proposed to operate, plus the names and addresses of the owners and lessors of the sexually oriented business site.

7.

The address to which notice of action on the application is to be mailed.

8.

The names of all employees, independent contractors, and other persons who will perform at the sexually oriented business, who are required by section 8 to obtain a sexually oriented business employee permit (for ongoing reporting requirements see section 8, subsection B).

9.

A sketch or diagram showing the interior configuration of the premises, including a statement of the total floor area occupied by the sexually oriented business. The sketch or diagram need not be professionally prepared, but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches.

10.

A straight-line drawing prepared within 30 days prior to application accurately depicting the building and the portion thereof to be occupied by the sexually oriented business, and: (1) the property line of any other sexually oriented business within 750 feet of the nearest property line of the sexually oriented business for which a permit is requested; and (2) the property lines of any religious institution, school, park, public building, boys club, girls club, youth center, recreational area, or residential zone or use within 750 feet of the nearest property lines of the sexually oriented business.

11.

A diagram of the off-street parking areas and premises entries of the sexually oriented business showing the location of the lighting system required by section 13.

12.

Whether the applicant or principals thereof have been convicted, within the past five years, of a sexual crime against children, sexual abuse, rape, or crimes connected with another sexually oriented business including, but not limited to, distribution of obscenity or material harmful to minors, prostitution or pandering and, if so, the dates of conviction, confinement, and release, or has been convicted of a crime requiring registration under the New Mexico Sex Offender Registration and Notification Act, NMSA, 1978 § 29-11A-4 et seq.

13.

Whether the applicant or any of the other individuals identified in the application pursuant to this section has had a previous permit under this title or other similar ordinances from another city or county denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked, as well as the date of the denial, suspension or revocation, and whether the applicant or any other individual identified in the application pursuant to this section has been an owner, partner in a partnership or an officer, director or principal stockholder of a corporation that is permitted under this article whose permit has previously been denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked as well as the date of denial, suspension or revocation.

14.

Whether the applicant or any other individual identified in the application pursuant to this section holds any other permits and/or licenses under this article or any other similar adult oriented business ordinance from another city or county and, if so, the names and locations of such other permitted businesses.

D.

The fact that an applicant possesses other types of state or city permits or licenses does not exempt the applicant from the requirement of obtaining a sexually oriented business permit from the city.

A.

A licensee shall not operate a sexually oriented business under the authority of a sexually oriented business permit at any place other than the address of the sexually oriented business stated in the application for the permit.

B.

A licensee shall not transfer ownership or control of a sexually oriented business permit to another person unless and until the transferee obtains an amendment to the special use permit from the planning and zoning commission, stating that the transferee is now the permittee. Such an amendment may be obtained only if the transferee files an application with the planning and zoning commission in accordance with section 6, accompanies the application with a transfer fee in an amount set by resolution of the city council, and the planning and zoning commission determines in accordance with section 5 and/or section 6 that the transferee would be entitled to the issuance of a special use permit under the ordinances and regulations which were in effect as of the time of the initial issuance of the original sexually oriented business permit. Notwithstanding the forgoing, to the extent the sexually oriented business is operating as a legal nonconforming use, an amendment to the permit shall not extend the legal nonconforming status of such business, if any, applicable to the sexually oriented business unless such amortization period is extended pursuant to any local ordinance or regulations in effect as of the time of the extension request.

C.

No permit may be transferred when the city staff has notified the permittee that the permit has been or may be suspended or revoked.

D.

Any attempt to transfer a permit either directly or indirectly in violation of this section is hereby declared void, and the permit shall be deemed revoked.

E.

Each sexually oriented business license shall expire one year from the date of issuance, and may be renewed only by filing with the business licensing clerk a written request for renewal, accompanied by the filing fee as established from time to time by the city council, and a copy of the permit to be renewed. The request for renewal shall be made at least 30 days before the expiration date of the permit. When made less than 30 days before the expiration date, the expiration of the permit will not be stayed. Applications for renewal shall be acted on as provided herein for action upon applications for permits. If the business licensing clerk or his or her designee determines that there has been no change in the configuration or operation of the permitted sexually oriented business which would call into question the continued satisfaction of all requirements of this ordinance, the permit shall be renewed. If the city business licensing clerk or his or her designee determines that there has been such a change in the configuration or operation of the adult- oriented business, the business licensing clerk may require the permittee to submit a complete new permit application pursuant to section 8. In such event, and to the extent the request for renewal has been submitted at least 30 days prior to expiration of the permit, the expiration of the existing permit shall be stayed pending a decision on the new permit application.

A.

It shall be unlawful for any persons to engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities in a sexually oriented business unless the person first obtains and continues in full force and effect a permit from the city as herein required ("sexually oriented employee permit").

B.

No person shall engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities in a sexually oriented business, nor shall any employee as defined in article 4: Definitions, be employed at a sexually oriented business, without a valid sexually oriented business employee permit issued by the city to such person. All persons who have been issued a sexually oriented business permit shall promptly supplement the information provided as part of the application for the permit required by section 6, subsection C, with the names of all performers and employees required to obtain a sexually oriented business employee permit, within 30 days of any change in the information originally submitted. Failure to submit such changes shall be grounds for suspension of the sexually oriented business permit.

C.

The city business licensing clerk shall grant, deny and renew sexually oriented business employee permits.

D.

The completed application shall contain the following information and be accompanied by the following documents:

1.

The applicant's legal name and any other names (including "stage names" and aliases) used by the applicant;

2.

Location of the sexually oriented business;

3.

Age, date and place of birth;

4.

Height, weight, hair and eye color;

5.

Present residence address and telephone number, and business address and telephone number, if any;

6.

NCIC background check: Whether the applicant has been convicted in the past five years as of the date of the application of:

a.

Any of the offenses set forth in NMSA 1978, § 30-37-1 et seq. (Sexually Oriented Material Harmful to Minors), NMSA 1978, § 30-6A-1 et seq. (Sexual Exploitation of Children), NMSA 1978, § 30-8-8.1 (Abatement of House of Prostitution), NMSA 1978, § 30-9-1 et seq. (Sexual Offenses)

b.

The equivalent of the aforesaid offenses outside the state.

7.

Whether such person is or has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other jurisdiction to engage in prostitution in such other jurisdiction. If any person mentioned in this subsection has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other state to engage in prostitution, a statement shall be submitted giving the place of such registration, licensing or legal authorization, and the inclusive dates during which such person was so licensed, registered, or authorized to engage in prostitution.

8.

Date, issuing state and number of state issued driver's license or identification card and social security number;

9.

Satisfactory written proof that the applicant is at least 18 years of age;

10.

The applicant's fingerprints on a form provided by the Roswell Police Department, and a color photograph clearly showing the applicant's face. Any fees for the photographs and fingerprints shall be paid by the applicant;

11.

If the application is made for the purpose of renewing a license, the applicant shall attach a copy of the license to be renewed.

E.

The completed application shall be accompanied by a non-refundable application fee. The amount of the fee shall be set by resolution of the city council.

A.

Within 15 days after receipt of the properly completed application, the city business licensing clerk shall grant or deny the application and so notify the applicant as follows:

1.

The city business licensing clerk shall write or stamp "granted" or "denied" on the application and date and sign such notation.

2.

If the application is denied, the city business licensing clerk shall attach to the application a statement of the reasons for denial.

3.

If the application is granted, the city business licensing clerk shall attach to the application a sexually oriented business employee permit.

4.

The application as granted or denied and the permit, if any, shall be placed in the U.S. mail, first class postage prepaid, addressed to the applicant at the residence address stated in the application.

B.

The city business licensing clerk shall grant the application and issue the permit unless the application is denied for one or more of the reasons set forth in subsection C of this section.

C.

The city business licensing clerk shall deny the application for any of the following reasons:

1.

The applicant has knowingly made any false, misleading, or fraudulent statement of a material fact in the application for a permit or in any report or document required to be filed with the application or has omitted information reasonably necessary for issuance of the permit;

2.

The applicant is under 18 years of age;

3.

The sexually oriented business employee permit is to be used for employment in a business prohibited by state or local laws, ordinances, or regulations;

4.

The applicant has been registered in any state as a prostitute and said license has been revoked or rescinded;

5.

The applicant has been convicted of any criminal act enumerated in section 8, subsection D.6., or convicted of an offense that would have constituted any of the described offenses if committed per an NCIC background check.

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 of a misdemeanor offense for the specified criminal act, 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 of a felony offense for the specified criminal act, or

c.

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 convictions are of two or more misdemeanors for the specified criminal acts occurring within any 24-month period.

D.

The permit, if granted, shall state on its face the name of the person to whom it is granted, and the expiration date. The city business licensing clerk shall provide each person issued a sexually oriented business employee permit with a name, address, photograph, and permit number of the permittee.

E.

The permit shall be available for inspection at all times during which the permittee is on the premises of the sexually oriented business.

F.

If the city business licensing clerk neither grants nor denies a completed application for which the filing fees have been paid, within 15 business days after its receipt, the applicant may begin the employment for which the license is sought, subject to strict compliance with the development and performance standards and regulations and other provisions of section 13 of this article.

Each sexually oriented business employee permit shall expire one year from the date of issuance, and may be renewed only by filing with the city business licensing clerk a written request for renewal, accompanied by the filing fee as established from time to time by the city council, and a copy of the permit to be renewed. The request for renewal shall be made at least 30 days before the expiration date of the permit. When made less than 30 days before the expiration date, the expiration of the permit will not be stayed. Applications for renewal shall be acted on as provided herein for action upon applications for permits. If the city business licensing clerk or his or her designee determines that there has been no change in the facts upon which the permit was issued which would call into question the continued satisfaction of all requirements of this ordinance, as amended from time to time, the permit shall be renewed. If the city business licensing clerk or his or her designee determines that there has been such a change, the city business licensing clerk may require the permittee to submit a complete new permit application pursuant to section 8. In such event, the expiration of the existing permit shall be stayed pending a decision on the new permit application.

A.

A sexually oriented business permit or sexually oriented business employee permit may be suspended or revoked in accordance with the procedures and standards of this section.

1.

On determining that grounds for permit suspension or revocation exist, the city business licensing clerk shall furnish written notice of the proposed suspension or revocation to the permittee.

2.

The city business licensing clerk shall suspend a permit for a period not to exceed 30 days if he or she determines that the permittee or an employee of a permittee has violated or is not in compliance with any section of this article, or has refused to allow an inspection of the sexually oriented business premises as authorized by this article.

3.

The city business licensing clerk shall revoke a permit if he or she determines that any of the following conditions arising from the acts or omissions of the permittee, or an employee, agent, partner, director, stockholder, or manager of a sexually oriented business, has occurred:

a.

A cause of suspension as set forth in subsection 3 has occurred and the permit has been previously suspended within the preceding 12 months.

b.

The permittee has knowingly made any false, misleading or fraudulent statement of material facts in the application for a permit, or in any report or record required to be filed with the city.

c.

The permittee, employee, agent, partner, director, stockholder, or manager of a sexually oriented business has knowingly allowed or permitted, and has failed to make a reasonable effort to prevent the occurrence of any of the following activities on the premises of the sexually oriented business, or in the case of a sexually oriented business employee permit holder, the permittee has engaged in one of the activities described below while on the premises of the sexually oriented business:

i.

Any act of sexual intercourse, sodomy, oral copulation, or masturbation, with the exception of an adult hotel/motel, unless the sexually oriented business employee or sexually oriented business operator of such adult hotel/motel knowingly allowed such act to occur in a public place or within public view;

ii.

Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation occur;

iii.

Any conduct constituting a criminal offense which requires registration under the New Mexico Sex Offender Registration and Notification Act.

iv.

The occurrence of acts of lewdness, assignation, or prostitution, including any conduct constituting violations of NMSA 1978, § NMSA 1978, § 30-37-1 et seq. (Sexually Oriented Material Harmful to Minors), NMSA 1978, § 30-6A-1 et seq. (Sexual Exploitation of Children), NMSA 1978, § 30-8-8.1 (Abatement of House of Prostitution), NMSA 1978, § 30-9-1 et seq. (Sexual Offenses)

v.

Any conduct prohibited by this article.

d.

Failure to abide by any disciplinary action previously imposed by an appropriate city official.

All decisions of the planning and zoning commission to approve or deny a special use permit issued pursuant to this article are final unless appealed in accordance herewith.

An applicant or permittee may appeal a decision by the planning and zoning commission to deny an application for a sexually oriented business permit or sexually oriented business employee permit by filing an appeal with the city clerk pursuant to article 3: section 5 - Appeals of Zoning Ordinance 10-02 Amended.

A hearing by the city council on such appeal shall be scheduled for the city council for which proper notice can be given, but in no event shall such hearing occur more than 30 days after the appeal is filed. The city council shall make a decision on the appeal.

An applicant or permittee which is aggrieved by the decision of the city council may seek judicial review of such decision as permitted or allowed by New Mexico law.

A.

Maximum occupancy load, fire exits, aisles and fire equipment shall be regulated, designed and provided in accordance with the fire department and building regulations and standards adopted by the city.

B.

No sexually oriented business shall be operated in any manner that permits the observation of any material or activities depicting, describing or relating to specified sexual activities or specified anatomical areas from any public way or from any location outside the building or area of such establishment. This provision shall apply to any display, decoration, sign, show window or other opening.

C.

All off-street parking areas and premise entries of the sexually oriented business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one foot candle of light on the parking surface and/or walkways. The required lighting level is established in order to provide sufficient illumination of the parking areas and walkways serving the sexually oriented business for the personal safety of patrons and employees and to reduce the incidence of vandalism and criminal conduct. The lighting shall be shown on the required sketch or diagram of the premises.

D.

The premises within which the sexually oriented business is located shall provide sufficient sound-absorbing insulation so that noise generated inside said premises shall not be audible anywhere on any adjacent property or public right-of-way or within any other building or other separate unit within the same building.

E.

Except for those businesses also regulated by the New Mexico Department of Alcoholic Beverage Control or other state or local agencies, a sexually oriented business may be open for business only during the hours of operation permitted by New Mexico State Law on any particular day, unless alternative hours are mandated as a condition of approval of the special use permit.

F.

The building entrance to a sexually oriented business shall be clearly and legibly posted with a notice indicating that persons under 18 years of age are precluded from entering the premises. Said notice shall be constructed and posted to the satisfaction of the community development director or designee. No person under the age of 18 years shall be permitted within the premises at any time.

G.

All indoor areas of the sexually oriented business within which patrons are permitted, except restrooms, shall be open to view by the management at all times.

H.

Any sexually oriented business which is also an "adult arcade," shall comply with the following provisions:

1.

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 reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be direct line of sight from the manager's station.

2.

The view area specified above shall remain unobstructed by any doors, walls, merchandise, display racks, or other materials at all times. 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.

3.

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

4.

The walls or partitions between viewing rooms or booths shall be maintained in good repair at all times, with no openings between any two such rooms such as would allow viewing from one booth into another or such as to allow physical contact of any kind between the occupants of any two such booths.

5.

Customers, patrons or visitors who are not actively engaged in shopping for or reviewing the products available on display for purchaser viewing shall not be allowed to stand idly by in the vicinity of any such video booths, or in the common area of such business. Signs prohibiting loitering shall be posted in prominent places in and near the video booths.

6.

The floors, seats, walls and other interior portions of all video booths shall be maintained clean and free from waste and bodily secretions. Presence of human excrement, urine, semen, saliva, or any type of merchandise and/or products in any such booths shall be evidence of improper maintenance and inadequate sanitary controls; repeated instances of such conditions may justify suspension or revocation of the owner and operator's license to operate the sexually oriented business.

I.

All areas of the sexually oriented business shall be illuminated at a minimum of the following foot-candles, to be maintained and evenly distributed at ground level:

J.

The sexually oriented business shall provide and maintain separate restroom facilities for male patrons and employees, and female patrons and employees. Male patrons and employees shall be prohibited from using the restroom(s) for females, and female patrons and employees shall be prohibited from using the restroom(s) for males, except to carry out duties of repair, maintenance and cleaning of the restroom facilities. The restrooms shall be free from any materials depicting specified sexual activities or specified anatomical areas. Restrooms shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment. The foregoing provisions of this paragraph shall not apply to a sexually oriented business which deals exclusively with sale or rental of materials which are not used or consumed on the premises, such as an adult bookstore, and which does not provide restroom facilities to its patrons or the general public.

K.

The following additional requirements shall pertain to sexually oriented businesses providing live entertainment depicting specified anatomical areas or involving specified sexual activities, except for businesses regulated by the alcoholic beverage control commission or other state or local agencies:

1.

No person shall perform live entertainment for patrons of a sexually oriented business except upon a stage at least 18 inches above the level of the floor which is separated by a distance of at least ten feet from the nearest area occupied by patrons, and no patron shall be permitted within ten feet of the stage while the stage is occupied by an entertainer. "Entertainer" shall mean any person who is an employee or independent contractor of the sexually oriented business, or any other person who, with or without any compensation or other form of consideration, performs live entertainment for patrons of a sexually oriented business.

2.

The sexually oriented business shall provide separate dressing room facilities for entertainers which are exclusively dedicated to the entertainers' use for clothing change.

3.

The sexually oriented business shall provide an entrance/exit for entertainers that is separate from the entrance/exit used by patrons.

4.

The sexually oriented business shall provide access for entertainers between the stage and the dressing rooms that are completely separated from the patrons. If such separate access is not physically feasible, the sexually oriented business shall provide a minimum five foot wide walk aisle for entertainers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the entertainers capable of (and which actually results in) preventing any physical contact between patrons and entertainers.

5.

No entertainer, either before, during or after performances, shall have physical contact with any patron and no patron shall have physical contact with any entertainer either before, during or after performances by such entertainer. This subsection shall only apply to physical contact on the premises of the sexually oriented business, including without limitation, any parking areas.

6.

Fixed rail(s) at least 30 inches in height (from the stage floor) shall be maintained establishing the separations between entertainers and patrons required by this subsection.

7.

No patron shall directly pay or give any gratuity to any entertainer and no entertainer shall solicit any pay or gratuity from any patron.

8.

No owner or other person with managerial control over a sexually oriented business shall permit any person on the premises of the sexually oriented business to engage in a live showing of the human male or female genitals, pubic area or anus with less than a fully opaque coverage, and/or the female breast with less than a fully opaque coverage over any part of the nipple or areola and/or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specified anatomical part required to be covered.

L.

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 or more times in a period of time that is less than ten hours creates a rebuttable presumption that the establishment is an adult motel.

2.

It is a violation of this article when, as a person in control of a sleeping room in a hotel, motel, or similar commercial establishment that does not have a sexually oriented business permit, the person rents or sub-rents a sleeping room to a person and, within ten hours from the time the room is rented, rents or sub-rents the same sleeping room again.

3.

For purposes of paragraphs 1 and 2 of this section, the terms "rent" or "sub-rent" mean the act of permitting a room to be occupied for any form of consideration.

M.

Additional regulations relating to the exhibition of sexually explicit films, videos or live entertainment in viewing rooms. 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 150 square feet of floor space, a film, video cassette, live entertainment or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:

1.

Upon application for a sexually oriented business permit, 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 32 square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas the city business licensing clerk 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 first prepared.

2.

No alteration in the configuration or location of a manager's station may be made without the prior written approval of the city business licensing clerk based upon his or her finding that such alteration complies with this section.

3.

It is the duty of the permittee of the sexually oriented business 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 sexually oriented business.

4.

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

5.

It shall be the duty of the permittee to ensure that the view area specified in this section remains unobstructed at all times by any doors, curtains, partitions, walls, merchandise, display racks or other materials.

6.

It shall be the duty of the permittee to ensure that no patron is permitted access to any area of the sexually oriented business which has been designated as an area in which patrons will not be permitted pursuant to paragraph 1 of this subsection.

7.

The sexually oriented business 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 ten-foot candles as measured at the floor level.

8.

It shall be the duty of the licensee to ensure that the illumination required by this section is maintained at all times that any patron is present in the premises.

9.

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

10.

The licensee shall, during each business day, regularly inspect the walls between the viewing booths to determine if any openings or holes exist.

11.

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

12.

The licensee shall cause all wall surfaces and ceiling surfaces in viewing booths to be constructed of, or permanently covered by, nonporous, easily cleanable material. No wood, plywood, composition board or other porous material shall be used within 48 inches of the floor.

13.

It is a violation of this article for a person having a duty under this section to knowingly fail to fulfill that duty.

N.

Additional regulations concerning public nudity.

1.

It is a violation of this article for a person knowingly and intentionally to appear in a state of nudity in a sexually oriented business or any other public place.

2.

It is a violation of this article for a person knowingly or intentionally, in a sexually oriented business, to appear in a semi-nude condition unless the person is an employee who, while semi-nude, is upon a stage at least 18 inches above the level of the floor which is separated by a distance of at least ten feet from the nearest areas occupied by patrons.

3.

It is a violation of this article for an employee or performer while semi-nude in a sexually oriented business, to solicit any pay or gratuity from any patron or customer or for any patron or customer to pay or give any gratuity to any employee.

4.

It is a violation of this article for an entertainer, while semi-nude, to touch a patron or the clothing of a patron, or for a patron to touch an entertainer who is semi-nude.

O.

Sexually oriented businesses shall employ security guards in order to maintain the public peace and safety, based upon the following standards:

1.

Sexually oriented businesses featuring live entertainment shall provide at least two security guards at all times while the business is open. If the occupancy limit of the premises is greater than 50 persons, an additional security guard will be required for each 50 people thereafter.

2.

Security guards for other sexually oriented businesses may be required if it is determined by the city business licensing clerk that their presence is necessary in order to prevent any illegal conduct from occurring on the premises.

3.

Security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons of the requirements of these regulations. Security guards shall be uniformed in such a manner so as to be readily identifiable as a security guard by the public and shall be duly licensed as a security guard as required by applicable provisions of state law. No security guard required pursuant to this subsection shall act as a door person, ticket seller, ticket taker, admittance person, or sole occupant of the manager's station while acting as a security guard.

The foregoing applicable requirements of this section shall be deemed conditions of sexually oriented business permit approvals, and failure to comply with every such requirement shall be grounds for revocation of the permit issued pursuant to these regulations.

Any use or condition caused or permitted to exist in violation of any of the provisions of this article shall be and is hereby declared a public nuisance and may be summarily abated by the city pursuant to chapter 16 of the City of Roswell Municipal Code.

It shall be unlawful for any person to violate, cause, or permit another person to violate any provision of this article.

Every permittee of a sexually oriented business permit which provides live entertainment depicting specified anatomical areas or involving specified sexual activities must maintain a register of all persons in the past and currently so performing on the premises and their sexually oriented business employee permit numbers. Such register shall be available for inspection during regular business hours by any police officer, sheriff or deputy sheriff, or other authorized representative of the city.

A.

Every sexually oriented business shall display at all times during business hours the permit issued pursuant to the provisions of this article for such sexually oriented business in a conspicuous place so that the same may be readily seen by all persons entering the sexually oriented business.

B.

The city business licensing clerk shall provide each sexually oriented business employee required to have a sexually oriented business employee permit pursuant to this article, an identification card containing the name, address, photograph and permit number of such performer.

C.

A permitted sexually oriented business employee shall have such card available for inspection at all times during which such person is on the premises of the sexually oriented business.

A.

It shall be unlawful for any permittee, operator, or other person in charge of any sexually oriented business to employ, or provide any service for which it requires a sexually oriented business permit, to any person who is not at least 18 years of age.

B.

It shall be unlawful for any permittee, operator or other person in charge of any sexually oriented business to permit to enter, or remain within the sexually oriented business, any person who is not at least 18 years of age.

Representatives of the police, health, fire, planning or other city departments may inspect the premises of a sexually oriented business in accordance with this ordinance, which inspections shall be solely for the purpose of insuring compliance with the law and the development and performance standards applicable to sexually oriented businesses. Such inspections may be conducted only (1) after a representative of such department has provided evidence satisfactory to the city business licensing clerk that there is good reason to believe that one or more code sections within the city's municipal code have been violated by the sexually oriented business within two weeks of the inspection; or (2) after advising the owner or operator of the sexually oriented business of the provisions of this section and any other sections codified by this ordinance relevant to the scope of the inspection including any sections for which a violation is anticipated, at any time the sexually oriented business is occupied or opened for business. A person who operates a sexually oriented business or his or her agent or employee is in violation of the provisions of this section if he/she refuses to permit such lawful inspection of the premises at any time it is occupied or open for business, so long as the inspection is in accordance herewith.

The provisions of this article regulating sexually oriented businesses are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other regulations pertaining to the operation of businesses as adopted by the city council.

It shall be unlawful for any owner, operator, manager, or permittee in charge of or in control of a sexually oriented business which provides live entertainment depicting specified anatomical areas or involving specified sexual activities to allow any person to perform such entertainment who is not in possession of a valid, unrevoked sexually oriented business employee permit by the city.

Any person who possesses a current business license for a sexually oriented business which is not subject to section 4, or who operates a business which was not deemed to be a sexually- oriented business prior to the effective date of this ordinance but which, through an expansion of such business in the manner set forth in section 3 is deemed to constitute a sexually oriented business under section 2 and who does not have a validly issued sexually oriented business permit issued pursuant to the provisions of this ordinance, and all persons required by this article to obtain a sexually oriented business employee permit, must apply for and obtain such a permit within 90 days of the effective date of this ordinance. Failure to do so and continued operation of a sexually oriented business, or continued performances depicting specified anatomical areas or specified sexual activities in a sexually oriented business after such time without a permit shall constitute a violation of this article.

If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this article or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this article or any part thereof. The city council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective.