The purpose of this Zone is to provide for residential and/or commercial uses in a planned, mixed-use development. Industrial uses are not allowed under this designation. The ideal development under this RCPUD will be friendly to the environment by use of modern planning, architectural and engineering techniques meant to reduce air, water, ground and scenic contamination. The use of pedestrian friendly development is also encouraged and will be a standard used by the Planning and Zoning Commission and the City Commission in reviewing the proposed projects. It is also the intent and purpose of this designation that through the use of a Special Use Permit all adjacent property owners and citizens will participate in the planning process through public meetings. Further, it is the expressed intent that development take place in an orderly manner that includes the existing or potential uses of surrounding properties and all property under the proponent's control. In order to provide maximum flexibility in design and quality of development, the City Commission may agree to proposed modifications in the requirements of the City's Zoning and Subdivision regulations.

Standards for residential/commercial planned unit development (RCPUD) zone.

A.

Permit. The City Commission may grant (upon recommendation from the Planning and Zoning Commission) an RCPUD permit for such land in the RCPUD zone which it finds meets the requirements of this ordinance. The City Commission may impose such additional conditions and requirements upon a RCPUD permit as it finds are reasonable and necessary to carry out the purposes and requirements of this ordinance.

B.

General Requirements. The general requirements for the planned unit development zone are as follows:

1.

Application. An application for a RCPUD permit (Special Use Permit—SUP) may be filed by the owner of the property or his/her authorized agent. Such application requests shall be filed with the Zoning Administrator. No application request shall be accepted for filing and processing unless it conforms to the requirements of the Comprehensive Planning and Zoning Code, and the public hearing noticing procedures set forth in said title for Special Use Permits. The requested average number of units per acre shall not exceed four (4) per gross acre, and must be consistent with the master plan land use designation (if one exists). The City Commission may allow density averaging in order to maximize the amount open space provided. An increase in density to not more than eight (8) units to the gross acre may be approved if the development proposes a large amount (one (1) acre per twenty (20) residential units minimum) of passive or active open space.

2.

Content of Applications. The content of the RCPUD permit application shall be accompanied by the prescribed number of copies of a project plan and such other detailed elevations, plans and other information as may be required to adequately evaluate the proposed development. For a commercial and/or residential subdivision project requiring a RCPUD permit, a plat map application shall not be complete until an application is also filed and determined complete for a RCPUD permit consistent with the requirements of this ordinance and the Comprehensive Planning and Zoning Code.

The following information is required for submittal for an application under the SUP procedures. The information is to be supplied in a booklet form (and in digital form) that may later be used by the City as an addendum to City regulations related to land use and building permit issuance. The project plans shall include the following information:

a.

A map showing division of the land for the sale of the individual property, if any;

b.

Existing contours at two (2) foot intervals if the existing ground slope is less than ten (10) percent and not less than five (5) foot intervals for existing ground slopes greater than or equal to ten (10) percent. Contour intervals shall not be spread more than one hundred fifty (150) feet apart and existing contours shall be represented by dashed lines or by screened lines;

c.

Location of all living trees having a trunk diameter of four (4) inches or more measured at four and one-half (4½) feet above the root crown, and other major natural features shall be shown;

d.

Proposed automobile and bicycle access and pedestrian way locations and dimensions.

e.

Proposed off-street parking, including the location, number of stalls, dimensions and circulation system;

f.

Proposed loading areas, including the location, dimensions, and number of berths;

g.

Lot dimensions and all recorded easements;

h.

Areas proposed to be dedicated or reserved for parks, parkways, playgrounds, school sites, golf course, public or quasi-public buildings and other uses;

i.

Areas proposed for commercial uses, multi- and single-family dwellings, or other uses proposed to be established within the project;

j.

Proposed location and elevations of buildings on land including, dimensions, the size of the structure, height, setback, materials and yard areas;

k.

Proposed location including dimensions, and site plan of RV and boat storage areas;

l.

All proposed signs and their locations, size and height;

m.

Proposed landscaping walls, fencing, screening, trash collections areas, and usable open space areas;

n.

Location and size of existing and all proposed utility lines and drainage;

o.

A schedule for the development if phasing is proposed;

p.

Tabulation of total number of acres in the proposed project and the percent thereof designated for various uses; and the number of dwelling units proposed by type of dwelling for each unit of development;

q.

Construction materials and colors;

r.

Such additional information as may be required by the Zoning Administrator, to clarify, amplify, correct, or otherwise supplement the information required for the application, and to comply with the provisions of the Comprehensive Planning and Zoning Code. The Zoning Administrator may waive or modify the RCPUD permit application requirements, listed above, if such items are found not to be applicable to the proposed development, said waiver will be approved, denied or modified by the Planning and Zoning Commission and the City Commission as the project flows through the review process;

s.

If the applicant disagrees with the application requirements enumerated herein and as determined by the Zoning Administrator, he/she may appeal the Administrator's decision to the P and Z Commission within sixteen (16) days of the Administrator's decision. The cost of the appeal shall be as established by City Commission Resolution.

3.

Development Standards. Development standards, including but not limited to building height, minimum lot size, and setbacks for the respective residential or commercial zones, shall be consistent with the standards and requirements set forth in the Comprehensive Planning and Zoning Code, unless modified by the City Commission.

a.

RCPUD Zone Setback Regulations. The following regulations shall apply to the RCPUD zone unless modified by the City Commission. (Setbacks for structures and uses not listed below shall be consistent with applicable setback requirements of the Truth or Consequences Zoning Code unless modified.)

b.

Setbacks for Single-Family Residential Projects.

i.

Front setback: overall average of twenty (20) feet is required for tract with a minimum setback of twenty (20) feet. The front setbacks of dwelling units shall be varied to provide visual variety.

ii.

Minimum side setback from any public street: ten (10) feet.

iii.

Minimum side setback on an interior lot: five (5) feet.

iv.

Sum of side yards on any lot: minimum of ten (10) feet.

v.

Minimum distance between structures that are separated by a side lot line and do not share a common wall: ten (10) feet for single story; fifteen (15) feet for two (2) stories (even if only one unit is a two-story residence).

vi.

Minimum setback from a rear lot line: twenty (20) feet for a house, ten (10) feet for an open patio cover or balcony, and five (5) feet for an accessory structure. Structures that do not require a building permit may have a zero setback.

vii.

Two (2) story residences with windows facing the adjacent property shall have a minimum ten (10) foot side yard setback (second story only) and a minimum twenty (20) foot rear yard setback from the adjacent property line.

c.

Setbacks for Multifamily Residential Development Projects.

i.

Minimum landscaped setback of twenty (20) feet with an average landscaped setback of twenty-four (24) feet from any primary or secondary arterial street and twenty (20) feet from any collector, minor or cul-de-sac street.

ii.

Minimum interior yard side setback: ten (10) feet.

iii.

Minimum rear setback: as determined by the RCPUD permit.

iv.

In the case of RCPUD subdivisions involving townhouse developments, the setbacks shall be measured from the exterior property lines surrounding the project.

4.

Height Requirements. The following regulations shall apply to the RCPUD zone unless modified by the City Commission:

a.

The maximum height of a single-family residence may be increased above twenty-five (25) feet, to a maximum of thirty-five (35) feet, if the side yard is at least fifteen (15) feet.

b.

The maximum height for a multifamily residential structure shall be thirty-five (35) feet.

c.

For single-family and multifamily residential structures, no more than three (3) stories shall be permitted.

d.

The maximum height of accessory structures shall be fifteen (15) feet, with the exception that the maximum height of a patio cover shall be twelve (12) feet.

5.

Minimum Lot Area. Shall be as specified by the RCPUD permit.

6.

Parking Requirements. Parking shall be provided consistent with the provisions in the Comprehensive Planning and Zoning Code

7.

Utilities. All utilities shall be located underground. If the project proposes the elimination of rear yard refuse collection via the use of alleys, the applicant shall provide each unit with one 90-gallon polycart for refuse and one 90-gallon polycart for green waste of a design specified by the City.

8.

Findings. An RCPUD permit may only be granted if all of the following findings can be made based on factual evidence and testimony presented at the public hearing:

a.

Finding that the planned development is consistent with the intent and provisions of any applicable Master Plan, Zoning Code and/or Specific Plan;

b.

Finding that the planned development is compatible with the character of surrounding development;

c.

Finding that the planned development would not be obnoxious or harmful, or impair the utility of the neighboring property or uses;

d.

Finding that the planned development would not be detrimental to the public interest, health, safety, convenience or welfare.

e.

Finding that the planned development has met or exceeded the requirements and recommendations of the "Purpose" of this zone designation

The requirements of the Comprehensive Planning and Zoning Code for granting a Special Use Permit shall be followed.

Those uses allowed in the T-1 zone are permitted if the property owner does not wish to proceed with the application for an RCPUD permit.

D.1

SEXUALLY ORIENTED BUSINESS.

a.

PURPOSE: It is the purpose and intent of this chapter 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 any deleterious location and concentration of sexually oriented businesses within the City, thereby reducing or eliminating the adverse secondary effects from such sexually oriented businesses. The provisions of this chapter 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 nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of the chapter to condone or legitimize the distribution of obscene material to minors.

b.

DEFINITIONS: Definitions related to Sexually Oriented Businesses as follows (other definitions in the Comprehensive Zoning and Planning Code apply when not in conflict with these definitions):

SEXUALLY ORIENTED ARCADE: An establishment where, for any form of consideration, one or more obscene still or motion picture projectors, slide projectors or similar machines, or other image producing machines, for viewing by five (5) or fewer persons each, are used to show films, motion pictures, video cassettes, slides or other photographic reproduction which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas"

SEXUALLY ORIENTED BOOKSTORE, SEXUALLY ORIENTED NOVELTY STORE OR SEXUALLY ORIENTED VIDEO STORE: A commercial establishment which a) devotes a significant or substantial portion (more than twenty-five (25) percent of the stock or more than Twenty-five (25) percent of the value of the stock is Obscene Sexually Oriented Material) of its stock-in-trade or interior floor space to; b) receives a significant or substantial portion of its revenues from; or c) devotes a significant or substantial portion of its advertising expenditures to the promotion of: the sale, rental or viewing (for any form of consideration) of obscene books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, CD's, slides or other visual representations which are characterized by an emphasis on the depiction or description of "specified sexual activities" or "specified anatomical areas"

SEXUALLY ORIENTED BUSINESS: A sexually oriented arcade, sexually oriented bookstore, sexually oriented novelty shop, sexually oriented video store, sexually oriented cabaret, sexually oriented motel, sexually oriented motion picture theater, sexually oriented peep booth, sexually oriented theater, sexual encounter establishment, sexually oriented novelty store. The definition of "Sexually Oriented Businesses" shall not include an establishment where a medical practitioner, psychologist, psychiatrist or similar professional person licensed by the State engages in medically approved and recognized sexual therapy.

SEXUALLY ORIENTED CABARET: means a commercial establishment which regularly features any one of the following:

I.

Persons who appear in a state of nudity or state of seminudity;

II.

Live performances which are characterized by an emphasis on specified anatomical areas or by specified sexual activities;

III.

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

SEXUAL ENCOUNTER ESTABLISHMENT: A business or commercial establishment, that as one of its primary business purposes, offers, for any form of consideration, a place where two (2) or more persons may congregate, associate, or consort for the purposed of "specified sexual activities" or the exposure of "specified anatomical areas" or activities when one or more of the persons is in a state of nudity or seminudity. A sexually oriented motel will not be classified as a sexual encounter establishment by virtue of the fact that it offers private rooms for rent.

SEXUALLY ORIENTED MATERIAL: Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, CD's, slides, any artificial or simulated specified anatomical area or other device or paraphernalia that is designed in whole or part for specified sexual activities, or other visual representations which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas".

SEXUALLY ORIENTED MOTEL: a motel, hotel or similar commercial establishment which: offers public accommodations for any form of consideration and provides patrons with closed-circuit television transmissions, obscene 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 which advertises the availability of this obscene sexually oriented type of material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising, including but not limited to newspapers, magazines pamphlets or leaflets, radio or television.

SEXUALLY ORIENTED MOTION PICTURE THEATER: means a commercial establishment which regularly features the showing of films, motion pictures, video cassettes, slides or similar photographic reproductions which are distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.

ADULT NOVELTY STORE: means a commercial establishment where a significant or substantial portion of the business involves the sale or rent of sexually oriented devices and or material.

SEXUALLY ORIENTED THEATER: A theater, concert hall, auditorium or similar commercial establishment which, for any form of consideration, features persons who appear in a state of nudity or obscene live performances which are characterized by exposure of "specified anatomical areas" or by "specified sexual activities".

SEXUALLY ORIENTED PEEP BOOTH: A viewing room of less than one hundred fifty (150) square feet of floor space where obscene films, motion pictures, video cassettes, slides or similar photographic reproductions depicting or describing "specified sexual activities" or "specified anatomical areas" are shown for any form of consideration, or features persons who appear in a state of nudity or obscene live performances which are characterized by exposure of "specified anatomical areas" or by "specified sexual activities".

Associated Sexually Oriented definitions include:

EMPLOYEE: A person who works or performs in and/or for a sexually oriented business, regardless of whether or not said person is paid a salary, wage or other compensation by the operator of said business.

ESTABLISHMENT: In regard to a sexually oriented business, means and includes any of the following:

I.

The opening or commencement of any such business as a new business;

II.

The conversion of an existing business into an sexually oriented business;

III.

The addition of an sexually oriented business to any other existing sexually oriented business; or

IV.

The relocation of a sexually oriented business.

LICENSING OFFICER: The City Clerk.

MANAGER: An operator, other than a licensee, who is employed by a sexually oriented business to act as a manager or supervisor of employees or is otherwise responsible for the operation of the business.

NUDE MODEL STUDIO: means a commercial establishment where a significant or substantial portion of the business involves the viewing of person who appear in a state of nudity or state of seminudity or persons who display specified anatomical areas in order to be observed, sketched, drawn, painted, sculptured, photographed or similar depicted by other persons.

NUDITY OR STATE OF NUDITY: a) The appearance of human bare buttocks, anus, genitals or the areola or nipple of the female breast; or b) a state of dress which fails to opaquely and fully cover a human buttocks, anus, male or genitals, pubic region or areola or nipple of the female breast or c) the showing of the covered male genitals in a discernable turgid state.

OPERATOR: Includes the owner, permit holder, custodian, manager, operator or person in charge of any permitted or licensed premises.

PEEP BOOTH: A viewing room of less than one hundred fifty (150) square feet of floor space.

PERMITTEE AND/OR LICENSEE: 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.

PERSON: An individual, proprietorship, partnership, corporation, limited liability company, association or other legal entity.

PREMISES OR PERMITTED OR LICENSED PREMISES: Any premises that requires a license and/or permit and that is classified as a sexually oriented business.

PRINCIPAL OWNER: Any person owning, directly or beneficially, a) ten (10) percent or more of a corporation's equity securities; b) ten (10) percent or more of the membership interests in a limited liability company; or c) in the case of any other legal entity, ten (10) percent or more of the ownership interests in the entity.

PRIVATE ROOM: A room in a sexually oriented motel that is not a peep booth, has a bed and a bath in the room or adjacent room, and is used primarily for lodging.

SEMINUDE: A state of dress in which clothing covers no more than the genitals, pubic region, and areola of the female breast, as well as portions of the body covered by supporting straps or devices.

SEXUAL AROUSAL: To rouse or stimulate to action or to physiological readiness for activity.

SIGNIFICANT OR SUBSTANTIAL PORTION: where more than twenty-five (25) percent of the stock or more than twenty-five (25) percent of the value of the stock is Sexually Oriented Material.

SPECIFIED ANATOMICAL AREAS:

I.

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

II.

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

SPECIFIED CRIMINAL ACTS: Sexual crimes against children, sexual abuse, rape or crimes connected to a sexually oriented business, including distribution of obscenity, prostitution, or pandering.

SPECIFIED SEXUAL ACTIVITIES:

I.

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

II.

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

III.

Masturbation, actual or simulated; or

IV.

Human genitals in a state of sexual stimulation, arousal or tumescence;

V.

Excretory functions as part of or in connection with any of the activities set fourth in subsections (I) through (IV).

TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS: Means and includes any of the following:

I.

The sale, lease or sublease of the business;

II.

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

III.

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

c.

SPECIFIC USE LIMITATIONS.

I.

Location of sexually oriented businesses: Sexually Oriented Businesses may only locate in the zone classified as M-1 (Light Manufacturing). It shall be unlawful to operate or cause to be operated a sexually oriented business in any location in the City except as provided in this Code.

II.

Distance Requirements: It shall be unlawful to operate or cause to be operated a sexually oriented business within one thousand (1,000) feet of:

i.

A church;

ii.

A school or childcare facility and/or other youth facilities;

iii.

A public park (including trails);

iv.

A community correctional facility;

v.

Any residential zoning district;

vi.

Another sexually oriented business as defined by this Code.

The distance between any such businesses and those businesses specified in subsection b. III of this Section shall be measured in a straight line, without regard to intervening structures or objects, from the closest property line in which the sexually oriented business is located.

III.

Multiple Sexually Oriented Businesses: It shall be unlawful to cause or permit the operation or maintenance of more than one sexually oriented business in the same building, structure or portion thereof.

IV.

Nonconforming Status: If a sexually oriented business use or structure and premises in combination exists lawfully on the effective date of this Ordinance, that would not be allowed in the district under the terms of this Ordinance, the lawful use may be continued so long as it remains otherwise lawful, subject to the provisions as defined in Sections 11-4-1 through 11-4-10 of the Comprehensive Zoning and Planning Ordinance.

V.

Other Uses Effect On Nonconforming Status: A sexually oriented business lawfully operating is not rendered a nonconforming use by the subsequent location of a church, school, childcare facility, public park, residential district, or a residential lot within one thousand feet (1,000') of the sexually oriented business; however, if the sexually oriented business ceases operation for a period of one hundred eighty (180) days or more regardless of any intent to resume operation, it may not recommence operation in that location.

VI.

Permit For Sexually Oriented Business: A sexually oriented business shall be required to obtain a City business license on forms as provided by the City Clerk's office and annually renew the business license. Application for a City Business license shall be accompanied by a map that locates all uses defined in Section 11-9-8-D.1.b. within the one thousand (1,000) foot radius of the sexually oriented business. In addition, all other sexually oriented business within the same radius shall be shown. Further:

i.

The City Clerk is responsible for granting, denying, revoking, renewing, suspending, and canceling sexually oriented business permits for proposed or existing sexually oriented businesses.

ii.

The City Manager, may designate any other officer or employee to deal with the provisions of this chapter.

iii.

An application for a permit must be made on a form provided by the City.

iv.

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

1.

If the applicant is:

a.

An individual, the individual shall state his/her legal name, any aliases, and date of birth;

b.

A partnership, the partnership shall state its complete name, and the names of all general partners;

c.

A corporation, the corporation shall state its complete name, the names and capacity of all officers, directors and the name and address of the registered corporate agent for service of process.

2.

If the applicant intends to operate the sexually oriented business under a name other than that on the application, he/she must state the sexually oriented business's fictitious name.

3.

A statement as to whether the applicant or any other individuals identified in the application, excluding any agent for service of process who is not also listed as a director or officer, has had a previous permit under this chapter, or any other similar sexually oriented business ordinance of the City, 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.

4.

A statement as to whether the applicant or any other individuals identified in the application, excluding any agent for service of process who is not also listed as a director or officer, has been a sole proprietor, general partner, officer, or director of a sexually oriented business that has had a previous permit under this chapter, or any other similar sexually oriented business ordinance of the City denied, suspended or revoked by the City, 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.

5.

The name(s) of the responsible person(s) who will be on the premises to act as manager during the times that the business is open, or a statement that the applicant has not yet selected the manager(s)

6.

The classification, as defined in this chapter, of sexually oriented business for which the applicant is seeking a permit;

7.

The location of the proposed sexually oriented business, including a legal description of the property, street address, and telephone number(s) currently in service;

8.

The applicant's address;

9.

A recent photograph of the applicant;

10.

The applicant's driver's license or permit number or identification number and social security number and/or the applicant's state or federally issued tax identification number;

11.

A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but it 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;

12.

Each individual listed on the application pursuant to this chapter, excluding any agent for service or process who is not also listed as a director or officer, shall sign the application.

v.

The applicant shall be required to pay a nonrefundable application fee of one hundred dollars at the time of filing an application pursuant to this chapter.

vi.

The fact that a person possesses other types of state or City permits and/or licenses does not exempt him/her from the requirement of obtaining a sexually oriented business permit.

vii.

By applying for a permit under this chapter, the applicant shall be deemed to have consented to the provisions of this chapter and to the exercise by the City or its designee, the police chief's office, and all other City departments charged with enforcing the laws, ordinances and codes applicable in the City, of their respective responsibilities under this chapter.

viii.

An operator shall promptly update, correct or supplement the information contained in the application for a sexually oriented business permit on file with the City as necessary to keep the information contained therein accurate.

ix.

Upon receipt of an application properly filed with the City and upon payment of the nonrefundable application fee, the City or its designee shall immediately stamp the application as received on that date.

x.

Notice of an incomplete application shall be given to the applicant within the seven day review period.

xi.

Issuance of permit. Within seven business days of receipt of a completed application, the City shall issue a sexually oriented business permit upon verification of the following facts:

1.

The location of the business complies with all applicable zoning laws;

2.

The configuration of the premises, as set out in the sketch or plan submitted with the application, does not reveal any violation of applicable health, zoning, fire and safety laws of the state and ordinances of the City applicable thereto, including those set out in this chapter.

3.

The applicants or individuals identified therein, excluding any agent for service of process who is not also listed as a director or officer, are not otherwise disqualified from lawful operation of a sexually oriented business pursuant to any state, county, federal or local law, including those set out in this chapter.

4.

The applicant is eighteen (18) years of age or older.

5.

The applicant has provided all information required by this chapter, none of which is known to the City to be incorrect.

6.

The application or permit fees required by this chapter have been paid.

xii.

The City, or its designee, shall grant or deny a completed application for a permit within seven business days from the date receipt of the City of a complete application. Upon the expiration of the seventh day, unless the City or its designee has given written notice to the applicant, the application shall be deemed granted and the operator shall be excused from the requirement that a duly issued permit be posted at the premises until such time as said permit is issued pursuant to this Section.

xiii.

If the City or its designee denies the application, he/she shall notify the applicant of the denial and state the reason(s) for the denial. Any subsequent application which has been supplemented to cure the grounds for prior denial shall be treated as a new application.

xiv.

The annual fee for a sexually oriented business permit is one hundred dollars, to partially offset the costs of monitoring and policing the operations of the business entities involved.

xv.

The City Commission determines that the actual cost of monitoring and policing each such business is at least that amount.

xvi.

Said fee shall be due yearly on the anniversary of the issuance of the permit and shall be deemed delinquent thirty days thereafter.

xvii.

Every operator shall permit representatives of the City and/or police, fire or health departments to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law at any time it is occupied or open for business.

xviii.

Any decision to deny or issue a permit under this chapter may be appealed to the City Commission.

xix.

Any appeal of a decision to deny or issue a permit that regulates expressive conduct protected by the State Constitution or the First Amendment to the United States Constitution is eligible for expedited administrative review by the City Commission.

xx.

Determinations by the City Commission after review of the issuance or denial of said applications are deemed to constitute final determinations by the City.

xxi.

Transfer of permit.

1.

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

2.

A permittee shall not transfer his/her permit to another person unless and until such other person satisfies the following requirements:

a.

Obtains an amendment to the permit from the City or its designee, which provides that he/she is now the permittee, which amendment may be obtained only if he/she has completed and properly filed an application with the City or its designee, setting forth the information called for under Section xxii of this chapter in the application; and

b.

Pays a transfer fee of fifty (50) percent of the annual permit fee set by this chapter.

3.

No permit may be transferred during the pendency of administrative procedures following notice by the City or its designee to the permittee that suspension or revocation proceedings have been or will be brought against the permittee, until such proceedings have been completed, withdrawn or otherwise canceled.

4.

A permittee shall not transfer his permit to another location.

5.

Any attempt to transfer a permit either directly or indirectly in violation of this Section is hereby declared void, and the permit shall be considered abandoned and shall automatically revert to the City.

xxii.

Business operations.

1.

Visibility of Interior.

a.

The entire interior of an adult arcade, adult bookstore, adult novelty store, adult cabaret, adult video arcade, and the entire concession area of an adult motion picture theater or adult theater, the entire common areas of an adult motel, and the entire exhibition area of an adult motion picture theater or adult theater, shall be visible upon entrance to such areas.

b.

Visibility from the entrance shall not be obstructed by any curtain, door, wall, merchandise rack, or any other thing.

c.

No partially enclosed booths shall be maintained.

2.

Exceptions to Visibility Requirements.

a.

Section xxvii.1 shall not apply to those areas of a sexually oriented business to which only employees are permitted access and patrons are excluded and which cannot be viewed from any area accessible to patrons.

b.

Section xxvii.1 shall not apply to a restroom; however, no restroom shall contain any merchandise, materials, product, or service referenced in Section 11-9-8-D.1.b.

3.

Private Viewing Booths or Rooms.

a.

No viewing room or booth of an adult arcade or adult video arcade may be occupied by more than one person at any time.

b.

The walls or partitions between viewing rooms or booths shall be maintained in good repair at all times, with no holes 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 or rooms.

c.

The floors, seats, walls and other interior portions of all viewing rooms or booths shall be maintained clean and free from waste and bodily secretions.

d.

Doors or curtains for booths shall be installed so as to allow a clear space of 18 inches from the bottom of the door or curtain to the floor.

4.

Lighting. The entire premises of every adult arcade, and adult bookstore, 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 two foot-candles as measured at the floor level.

5.

Posting Permit. A valid sexually oriented business permit duly issued pursuant to this chapter shall be posted in conspicuous place at or near the entrance to the sexually oriented business so that it can be easily read at all times.

6.

Manager on Duty.

a.

There shall be a responsible person on the premises to act as manager at all times during which the business is open.

b.

Every permittee shall ensure that all employees are familiar with the provisions of this chapter as amended from time to time and with all other regulations adopted by the City related to sexually oriented businesses.

xxiii.

Prohibited contact between nude and seminude employees and patrons.

1.

Nudity and Seminudity Prohibited. When in a state of nudity or seminudity, no employee shall be present in any portion of the premises accessible to (a) patron(s). For purposes of this chapter, "patron" means any individual who is not an employee.

2.

Nudity and Seminudity Permitted in Designated Areas. An employee may perform live entertainment in a state of nudity or seminudity on a stage raised at least eighteen (18) inches above the immediate floor level and removed at least six feet from the nearest portion of the premises accessible to the patron(s).

a.

No patron shall be permitted within six feet of any stage utilized for such entertainment.

b.

A separate dressing room facility, to which no patron shall be permitted access, shall be provided for the exclusive use of the employee(s) performing such entertainment.

c.

Access between the dressing room facility and the stage shall be provided for the exclusive use of the employees performing such entertainment and shall be separated from the nearest portion of the premises accessible to the patron(s) by at least six feet.

3.

Direct Tipping Prohibited. There shall be no physical contact between any employee in a state of nudity or seminudity and a patron. No patron shall directly give any gratuity to any employee while the employee is in a state of nudity or seminudity. No employee, when in a state of nudity or seminudity, shall solicit or accept any gratuity from any patron. For purposes of this chapter, "gratuity" shall mean any thing of value or potential value, including but not limited to money or token(s). For purposes of this chapter, to "directly give" means to transfer from a patron to the person, or any extension from the person, of a nude or seminude employee. Nothing in this chapter is intended to prohibit the placing by the patron of a gratuity into or onto any item placed or located at least six feet from the nude or seminude employee(s).

xxiv.

Exterior security.

1.

Lighting.

a.

All off-street parking provided for, and entrances to, a 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 walkways.

b.

The required provision for exterior lighting shall be depicted in the sketch/diagram of the configuration of the premises on file with the City pursuant to the provisions of this chapter.

2.

Recorded Surveillance.

a.

The operator shall provide a security system that visually records and monitors all off-street parking areas provided for, and entrances to, the sexually oriented business during all times that the business is open or occupied for business. The surveillance equipment utilized shall provide continuous recording for at least a twenty-four hour period, with all recordings maintained for a minimum of seventy-two hours.

b.

Immediately upon request, the surveillance recordings for all or any portion of the previous seventy-two-hour period shall be made available to any representative of the City Police Department. Such recordings shall be utilized only for purposes of investigating an alleged violation of a local, state of federal law, or for the enforcement thereof.

c.

The exterior surveillance capacity shall be depicted in the sketch/diagram of the configuration of the premises on file with the City pursuant to the provisions of this chapter.

d.

Signs shall be posted in the parking area, near the entrance to the premises, and at a conspicuous location inside the premises in such a manner as to notify the public that the exterior of the premises is subject to recorded surveillance in cooperation with the City Police Department.

xxv.

Prohibitions regarding minors and sexually oriented businesses.

1.

It shall be unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this chapter, and knowingly, or with reasonable cause to know, permits, suffers, or allows:

a.

Admittance of a person under eighteen (18) years of age to the business premises;

b.

A person under eighteen (18) years of age to remain at the business premises;

c.

A person under eighteen (18) years of age to purchase goods or services at the business premises; or

d.

A person who is under eighteen (18) years of age to work at the business premises as an employee;

e.

The entrance to any sexually oriented business shall be designed in manner that obscures the view of the interior of the premises from minors outside the premises so as to prohibit minors from viewing or seeing any material, conduct or activities which depict, describe or display specified sexual activities or specified anatomical areas.

xxvi.

Display regulations. No display or exhibit depicting or describing specified sexual activities or specified anatomical areas shall be placed in, on or at the site of the subject premises in such a manner as to be visible from the exterior of the premises.

xxvii.

Exemptions.

1.

It is a defense to prosecution for any violation of this chapter that a person appearing in a state of nudity did so in a modeling class operated:

a.

By a college, junior college, or university supported entirely or partly by taxation; or

b.

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; or

c.

In a structure:

i.

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

ii.

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

iii.

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

2.

It is a defense to prosecution for a violation of this chapter that an employee of a sexually oriented business, regardless of whether or not it is permitted under this chapter, exposed any specified anatomical area during the employee's bona fide use of a restroom, or during the employee's bona fide use of a dressing room which is accessible only to employees.

xxviii.

Suspension or revocation of permit.

1.

After an investigation, notice and hearing, the City Manager or his designee shall suspend or revoke an existing permit, or impose such conditions upon the retention of the permit as shall be found to be necessary to assure the preservation of the public health and safety, if the evidence presented established that one of the following conditions exist:

a.

The building, structure, equipment, location or manner of operation of such business does not comply with the requirements of or fails to meet the standards of the health, zoning, fire and safety laws of the state and ordinances of the City applicable to such business operations.

b.

The permittee, his or her employee, agent, partner, director, officer, stockholder or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for sexually oriented business permit, or in any report or record required to be filed with the City pertaining to the permit for the sexually oriented business, or has violated any rule or regulation duly adopted by the City relating to sexually oriented businesses, including those set out in this chapter.

c.

A court of competent jurisdiction has found that the permittee, his or her employee, agent, partner, director, manager, or stockholder has knowingly engaged in or allowed or permitted to be committed any unlawful act of sexual intercourse, sodomy, oral copulation, masturbation, or distribution of obscenity, on or in the subject premises.

d.

A court of competent jurisdiction has found that the permittee, his or her employee, agent, partner, director, manager, or stockholder has knowingly engaged in or permitted or allowed to occur unlawful solicitations for sexual intercourse, sodomy, oral copulation, masturbation or distribution of obscenity, on or in the subject premises.

e.

A court of competent jurisdiction has found that the permittee, his or her employee, agent, partner, director, manager, or stockholder has knowingly engaged in or permitted or allowed, in or on the premises, the unlawful possession, use or sale of a controlled substance.

f.

More than thirty (30) days have elapsed since a tax, fee, fine, any form of regulatory assessment or judgment for monetary damages, irrespective of any other form of relief set out in the judgement, which is to be paid to the City has been imposed against a sexually oriented business, and said sum remains owing.

2.

In the event that a permit for a sexually oriented business is revoked pursuant to any applicable law, the premises shall be closed and shall not be used as a sexually oriented business of any classification for a period of one year commencing on the date of revocation. Further, the operators of the sexually oriented business so closed shall be disqualified from operating any other sexually oriented business established thereafter within the City for a period of one year commencing on the date that the permit was revoked.

3.

In the event that a permit for a sexually oriented business is suspended pursuant to any applicable law, the operators of the subject sexually oriented business shall be disqualified from operating the subject sexually oriented business as well as any other sexually oriented business established thereafter within the City during the entire period of such suspension.

xxix.

Immunity from prosecution. The City and its designee, the chief of police's office and all other departments and agencies, and all other City officers, agents and employees, charged with enforcement of state and local laws and codes shall be immune from prosecution, civil or criminal for reasonable, good-faith trespass upon a sexually oriented business while acting within the scope of authority conferred by this chapter.

xxx.

Modification, suspension and/or revocation of validly issued permit and/or license. A violation of this chapter by the holder of any City permit and/or City license validly issued pursuant to this or any other chapter shall constitute grounds for modification, suspension and/or revocation of said permit and/or license pursuant to the provisions set forth in this Chapter.

VII.

Interpretation: It shall be the duty of the duly appointed City Official to make interpretations of this Code as he or she deems appropriate. However, when the City Official notifies a business owner of a violation of this Ordinance, the Official shall also advise the business owner of their right to appeal said violation of this Ordinance to the Planning and Zoning Commission and sequentially to the City Commission. No other parties have a right to appeal. Said appeal must be submitted to the Office of the City Clerk within fifteen (15) days of receipt of the notification by the City Official of a violation. The appeal shall be in the form prescribed by the City. If an appeal is not filed in a timely manner or if the appeal is denied, the City Official may proceed within prescribed operating procedures (up to and including issuance of a court summons) to assure compliance with this Ordinance.

(Ord. No. 567, § 2, 1-23-07)