Vicksburg City Zoning Code
PART 10
Adult Regulated Uses
§ 475-127 Purpose and findings.
Purpose.
In the development and execution of this part, it is recognized that there are some uses, commonly known as adult uses or sexually oriented businesses, which because of their very nature have serious objectionable operational characteristics. The impacts of these objectionable characteristics are exacerbated when several adult uses are concentrated under certain circumstances or when one or more of them are located in near proximity to a residential use or zone, church, or house of religious worship, school, park, playground or public recreational area, thereby having a deleterious effect upon the adjacent areas. Special regulation of these uses is necessary to prevent these adverse effects and to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood. The controls contained within this chapter are for the purpose of preventing the negative secondary effects associated with adult uses and to prevent a concentration of these uses within any one area or to prevent deterioration or blighting of a nearby residential neighborhood.
It is the purpose of this part to regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the Village, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually-oriented businesses within the Village. The provisions of this part have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually-oriented materials. Similarly, it is neither the intent nor effect of this part to restrict or deny access by adults to sexually-oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually-oriented entertainment to their intended market. Neither is it the intent nor effect of this part to condone or legitimize the distribution of obscene material.
Findings.
This part is based on evidence of the adverse secondary effects of adult uses that are within the common knowledge of municipalities and is widely reported in judicial opinions, media reports, land use studies, and crime impact reports made available to the Village Council, several of which are set forth herein. Additionally, the Village Council relies on repeated judicial findings of municipalities' reasonable reliance on this body of secondary effects evidence to support time, place, and manner regulations of sexually-oriented businesses. The Village Council relies upon and incorporates the findings of secondary effects discussed in the following nonexhaustive list of cases from the U.S. Supreme Court: Pap's A.M. v. City of Erie, 529 U.S. 277 (2000); City of Los Angeles v. Alameda Books, Inc., 122 S. Ct. 1728 (2002); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 426 U.S. 50 (1976); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); California v. LaRue, 409 U.S. 109 (1972).
The Village Council also relies on relevant decisions of federal appellate and trial courts: DLS, Inc. v. City of Chattanooga, 107 F 3d 403 (6th Cir. 1997); Currence v. City of Cincinnati, 2002 U.S. App. LEXIS 1258; Broadway Books v. Roberts, 642 F. Supp. 486 (E.D. Tenn. 1986); Bright Lights, Inc. v. City of Newport, 830 F. Supp. 378 (E.D. Ky. 1993); Richland Bookmart v. Nichols, 137 F 3d 435 (6th Cir. 1998); Deja Vu v. Metro Government, 1999 U.S. App. LEXIS 535 (6th Cir. 1999); Bamon Corp. v. City of Dayton, 7923 F 2d 470 (6th Cir. 1991); Triplett Grille, Inc. v. City of Akron, 40 F 3d 129 (6th Cir. 1994); O'Connor v. City and County of Denver, 894 F 2d 1210 (10th Cir. 1990); Deja Vu of Nashville, Inc., et al v. Metropolitan Government of Nashville and Davidson County, 274 F 3d 377 (6th Cir. 20901); Z.J. Gifts D-2, LLC v. City of Aurora, 136 F 3d 683 (10th Cir. 1998); ILQ Investments, Inc. v. City of Rochester, 225 F 3d 1413 (8th Cir. 1994); World Wide Video of Spokane, Inc. v. City of Spokane, 227 F 3d 1143 (E.D. Wash. 2002); Threesome Entertainment v. Strittmather, 4 F. Supp. 2d 710 (N.D. Ohio 1998); Kentucky Restaurant Concepts, Inc. v. City of Louisville and Jefferson County, 209 F. Supp. 2d 672 (W.D. Ky. 2002).
Additionally, the Village Council expressly relies upon Michigan cases relating to adult businesses, municipal regulatory authority, and public nuisances, including, but not limited to, the following cases: Rental Property Owners Association of Kent County v. City of Grand Rapids, 455 Mich 246, 566 NW2d 514 (1996); Michigan ex rel Wayne County Prosecutor v. Dizzy Duck, 449 Mich 353, 535 NW 2d 178 (1995); City of Warren v. Executive Art Studio, 1998 Mich App LEXIS 2258 (1998); Tally v. City of Detroit, 54 Mich App 328 (1974); Jott, Inc. v. Clinton Township, 224 Mich App 513 (1997).
The Village Council notes that media reports document the harms associated with adult businesses as well: See e.g., Muskegon Man Convicted in Beating Death of Adult Bookstore Manager, Associated Press state and local wire, Sept. 9, 1999; Katie Merx, X-Rated Inkster Theater Razed: Officials, Cops, Residents Cheer Demolition of Melody, An Embarrassment for 22 Years, The Detroit News, August 19, 1999, at D3 (discussing documented sexual activity in and around adult business); Craig Garrett, Suburbs Declare War on Smut Shops, The Detroit News, June 30, 1999, at A1 (describing how adult theater patrons would solicit young people in the area for sex); Justin Hyde, Warren Leaders Want to Pursue Product Liability Against Porn Shop, Associated Press state and local wire, Feb. 4, 1999 (child rapist arrested in peep show establishment).
The Village Council further relies on reports concerning secondary effects occurring in and around sexually-oriented businesses, including but not limited to Phoenix, Arizona - 1984; Minneapolis, Minnesota - 1980; Houston, Texas - 1997; Indianapolis, Indiana - 1984; Amarillo, Texas - 1977; Garden Grove, California - 1991; Los Angeles, California - 1977; Whittier, California - 1978; Austin, Texas - 1986; Seattle, Washington - 1989; Oklahoma City, Oklahoma - 1986; Cleveland, Ohio - 1977; Dallas, Texas - 1997; McCleary Report, Alliance, Ohio - 2002; Tucson, Arizona - 1990; Testimony, Warner-Robins, Georgia - 2000; St. Croix County, Wisconsin - 1993; Bellevue, Washington - 1998; Newport News, Virginia - 1996; St. Cloud, Minnesota - 1994; New York Times Square Study - 1994; Phoenix, Arizona - 1995 - 1998; and also on findings of physical abuse from the paper entitled "Stripclubs According to Strippers: Exposing Workplace Sexual Violence," by Kelly Holsopple, Program Director, Freedom and Justice Center for Prostitution Resources, Minneapolis, Minnesota; from "Sexually Oriented Businesses: An Insider's View," by David Sherman, presented to the Michigan House Committee on Ethics and Constitutional Law, Jan. 12, 2000; and the Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses (June 6, 1989, State of Minnesota). Based on the cases and reports documenting the adverse impact of adult businesses, the Village Council finds:
Sexually-oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects, including but not limited to personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, illicit drug use and drug trafficking, negative impacts on property values, urban blight, pornographic litter, and sexual assault and exploitation.
Sexual acts, including masturbation, oral and anal sex, occur at unregulated sexually oriented businesses, especially those which provide private or semiprivate booths, rooms, or cubicles for viewing films, videos, or live sexually explicit shows.
Each of the foregoing negative secondary effects constitutes a harm, which the Village has a substantial governmental interest in preventing and/or abating.
The following adult regulated uses are subject to these controls:
Adult arcade or mini motion-picture theaters;
Adult bookstores, adult novelty stores, or adult video stores;
Adult cabarets;
Adult motels;
Adult motion-picture theaters;
Adult outdoor motion-picture theaters;
Adult model studios;
Adult physical culture businesses;
Adult theaters; and
Adult personal service businesses.
§ 475-128 Definitions.
As used in this part, the following terms shall have the indicated meanings:
Any place to which the public is permitted or invited wherein coin-operated or slug-operated, or electronically, electrically, or mechanically controlled still- or motion-picture machines, projectors, or other image-producing devices are regularly maintained to show images to five or fewer persons per machine at any one time, and where the images regularly displayed are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas (as defined herein).
A commercial establishment which has significant or substantial portions of its stock-in-trade or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or advertising, or maintains a substantial section of its sales or display space to the sale or rental, for any form of consideration, of any one or more of the following:
Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, DVDs, slides, or other visual representations which are characterized by their emphasis upon the exhibition or description of specified sexual activities or specified anatomical areas;
Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others.
A partitioned area inside an adult regulated use, which is:
Designed or regularly used for the viewing of books, magazines, periodicals, or other printed matter, photographs, films, motion pictures, video cassettes, slides, or other visual representations, recordings, and novelties or devices which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas by one or more persons; and
Is accessible to any person, regardless of whether a fee is charged for access.
Adult booth does not include a foyer through which any person can enter or exit the establishment or a restroom.
A nightclub, cafe, restaurant, lounge, bar or similar establishment, (which may or may not include the service of food or beverages), which regularly features persons who appear nude or seminude or which regularly features performances distinguished or characterized by an emphasis on the display of any specified anatomical areas or specified sexual activities.
Any place where a person who displays specified anatomical areas is regularly provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons who pay money or any form of consideration. Such an establishment includes, but is not limited to, the following activities and services: modeling studios, body painting studios, wrestling studios, individual theatrical performance or dance performances, barbershops or hair salons, car washes, and/or convenience stores. An adult model studio shall not include a proprietary school licensed by the State of Michigan or a college, junior college, or university supported entirely or in part by public taxation, 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 in a structure:
That has no sign visible from the exterior of the structure and no other advertising that indicates a nude or seminude person is available for viewing; and
Where in order to participate in a class a student must enroll at least three days in advance of the class; and
Where no more than one nude or seminude model is on the premises at any one time.
A hotel, motel or similar commercial establishment, which:
Offers accommodations to the public for any form of consideration; and
Provides patrons with closed circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas; and
Has a sign visible from the public right-of-way, which:
A commercial establishment where, for any form of consideration, films, motion pictures, videos, DVDs, slides or other photographic reproductions are regularly shown in which a substantial portion of the total presentation is devoted to the showing of materials which are distinguished or characterized by their emphasis on the depiction, description, or relation to specified sexual activities or specified anatomical areas for observation or entertainment of patrons, guests, and/or members.
A commercial establishment having an open lot or part thereof with appurtenant facilities devoted primarily to the presentation of motion pictures, films, theatrical productions, and other forms of visual productions for any form of consideration to persons in motor vehicles or in outdoor seats, and regularly presenting material distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation or entertainment of patrons, guests, and/or members.
A commercial business having as a principal activity a person, while nude or seminude, providing personal services for another person on an individual basis. Such a business includes, but is not limited to, the following activities and services: modeling studios, body painting studios, wrestling studios, individual theatrical performances or dance performances, barbershops or hair salons, car washes, convenience stores or other commercial business establishments where food or goods and services are sold, and tattoo parlors where services are being performed by a person who is nude or partially nude. "Nude" or "seminude" is defined as having attire which reveals specified anatomical areas, as defined in this section.
Any commercial establishment, club or business by whatever name designated, which regularly offers or advertises or is equipped or arranged to provide massages, body rubs, alcohol rubs, physical stimulation, baths, or other similar treatment by any person. An adult physical cultural business may include, but is not limited to, establishments commonly known as massage parlors, health spas, sauna baths, Turkish bathhouses, and steam baths.
Adult physical culture business, adult bookstore, adult novelty store, adult video store, adult theater, adult cabaret, adult motion-picture theater, adult outdoor motion-picture theater, adult arcade or mini motion-picture theater, adult motel, adult booth, or adult personal service business.
A commercial establishment which is a theater, concert hall, auditorium, or similar commercial establishment, either indoor or outdoor in nature, which, for any form of consideration, regularly features live performances which are distinguished or characterized by their emphasis on specified sexual activities or by exposure of specified anatomical areas for observation by guests, patrons, and/or members. An adult theater does not include a theater, concert hall, auditorium, or similar establishment which, for any fee or consideration, regularly features live performances which are not distinguished or characterized by their emphasis on the depiction or description of specified sexual activities or specified anatomical areas, in that any such depiction or description is only incidental to the primary purpose of the performance.
Any business, location, or place which conducts or allows to be conducted on its premises any activity for commercial gain.
The dominant or principal theme of the object so described. For example, "films which are distinguished or characterized by an emphasis upon the exhibition or description of specified sexually activities or specified anatomical areas," the films so described are those whose dominant or principal character and theme are the exhibition or description of specified anatomical areas or specified sexual activities.
A person who performs any service for any consideration on the premises of an adult regulated use on a full-time, part-time, or contract basis, whether or not the person is denominated an employee, independent contractor, agent, or otherwise, and whether or not said person is paid a salary, wage, or other compensation by the operator of said adult regulated use. "Employee "does not include a person exclusively on the premises for repair or maintenance of the premises or equipment on the premises or for the delivery of goods to the premises.
The site or premises on which an adult regulated use is located, including the interior of the establishment or portions thereof, upon which certain activities or operations are being conducted for commercial gain.
The knowing or intentional live display of a human genital organ or anus with less than a fully opaque covering or a female individual's breast with less than a fully opaque covering of the nipple and areola. Nudity, as used in this chapter, does not include a woman's breast-feeding of a baby, regardless of whether the nipple or areola is exposed during or incidental to the feeding.
In the context of "regularly" features, "regularly" shown or similar contexts in this chapter: A consistent or substantial course of conduct, such that the films or performances exhibited constitute a substantial portion of the films or performances offered as a part of the ongoing business of the sexually-oriented business.
A state of dress in which opaque covering covers no more than the genitals or anus and nipple and areola of the female breast, as well as portions of the body covered by supporting straps or devices. This definition shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel, provided that the areola and nipple are not exposed in whole or in part.
Portions of the human body, defined as follows:
The explicit display of one or more of the following:
§ 475-129 Permitted uses.
The following requirements and conditions shall apply to all adult regulated uses:
The use must be located only within Zone I-3.
No person or entity shall operate or maintain or cause to be operated or maintained an adult regulated use within 750 feet of:
A church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities;
A public or private educational facility, including but not limited to, child day-care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges and universities. School shall include the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school;
Residential care facility;
An entertainment use which has as its principal use children or family entertainment as demonstrated by business activity which caters predominantly to on-site patronage by minors and is open for such business at least 25 hours per week;
A lot or parcel of land in any zone primarily devoted to a residential use;
Any other adult regulated use as defined in this chapter;
A public park or recreational area which has been designated for park or recreational activities, including but not limited to a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball, tennis court, wilderness areas, or other similar public land within the Village which is under the control, operation, or management of the Village or other unit of government;
A zoning district boundary of a residential district as defined in this chapter.
For purposes of the uses listed in Subsection B(2)(a) through (f), the distance limitations above shall be measured in a straight line without regard to intervening structures or objects from the lot occupied by the adult regulated use to the nearest point of the lot occupied by any of the uses so listed in Subsection B(2)(a) through (f).
For purposes of Subsection B(2)(g) and (h), the distance limitations shall be measured in a straight line without regard to intervening structures or objects from the property line of the lot occupied by the adult regulated use to the nearest point of the property line occupied by the public park or other recreational areas so listed in Subsection B(2)(g) or the zoning district boundary of the residential district as provided in Subsection B(2)(h).
No building, premises, structure, or other facility that contains any adult regulated use shall contain any other kind of adult regulated use. The Zoning Board of Appeals may grant permission for more than one adult regulated use to operate in a single building, provided that an equal or greater number of adult regulated uses are removed from elsewhere in the Village. The location where an adult regulated use is removed pursuant to this section shall not be reused for any adult regulated use in the future. If the Zoning Board of Appeals grants permission for more than one adult regulated use to operate in a single building, it shall not be construed to be a violation of Subsection B(2)(f) of this section.
Adult regulated uses shall comply with all sign requirements under this chapter. Where inconsistencies exist between the provisions of this chapter and the sign requirements in the chapter, the provisions herein shall control.
No advertisement, display of product or entertainment on the premises, or other exhibits which display specified sexual activities and/or specified anatomical areas shall be displayed in window areas or other areas where the same can be viewed by pedestrians and motorists on any street, sidewalk or other public place.
No person shall reside in, or permit any person to reside in, the premises of an adult regulated use.
No person operating an adult regulated use shall knowingly permit any person under the age of 18 to be on the premises of said business, either as an employee or as a customer.
No person shall become the lessee or sublessee of any property for the purpose of using said property for an adult regulated use without the express written permission of the owner of the property for such use and appropriate approvals from the Village.
The building and site, including building openings, entries, exits and windows, shall be designed, constructed, and maintained so that material, entertainment, and/or performances which display specified sexual activities and/or specified anatomical areas cannot be observed by pedestrians and motorists on any street, sidewalk, or public right-of-way, or from an adjacent land use.
The adult regulated use shall satisfy all requirements for a full site plan and all landscaping requirements of the chapter. The adult regulated use shall also demonstrate that the site meets all of the traffic and access management standards of the Village. The site plan shall include a diagram that shows all land use zoning districts and any of the uses described in Subsection B(2) above which are located within 750 feet of the proposed adult regulated use.
No adult regulated use shall operate until it has satisfied all provisions of this part, all other applicable provisions of the chapter, and any of the federal, state or local regulations.
§ 475-130 Change of use by lessee or sublessee.
No lessee or sublessee of any property shall convert that property from any other use to an adult regulated use unless the location of the property conforms to standards in § 475-129.
§ 475-131 Certain uses exempt from provisions.
The following uses are exempt from the provisions of the terms and conditions of this part and are subject to the other provisions of the chapter, and the following uses shall not be construed to be included in any of the definitions of this part:
Accredited hospitals, nursing homes, sanitariums or other licensed health care facilities, physicians, surgeons, chiropractors, osteopaths, physical therapists, registered nurses, and other establishments or professionals duly licensed under the laws of the state while engaged in the activities for which they are so licensed.
Barbers, beauticians, barbershops, and beauty parlors licensed under the laws of the state which also offer massages, provided that massages therein involved are limited to the head, shoulders, scalp, neck, hands, and feet. Such establishments which also provide activities which fall under the definition of "adult personal service business" in this chapter shall, however, be governed by the provisions, terms, and conditions of this chapter.
Public and parochial school and college or professional athletic coaches and trainers while acting within the scope of their school employment.
Professional massage therapy enterprises, where each massage therapist has met the following criteria:
Proof of graduation from a school of massage licensed by the State of Michigan or another state with equivalent standards, consisting of at least 500 classroom hours of instruction and practical training, which include 300 hours of theory and practice of massage therapy, 100 hours of anatomy and physiology, and 100 hours of elective subjects; or proof of completion of a comprehensive course of study in a massage training program at an American community college or university which requires at a minimum the training and curriculum above; and
Proof of current professional membership in the American Massage Therapy Association, International Myomassethics Federation, Associated Bodywork and Massage Professionals, or other national massage therapy organization with comparable prerequisites for certification, including liability insurance and testing.
Nonprofit organizations operating a community center, swimming pool, tennis court, or other educational, cultural, recreational, or athletic facilities which are used primarily for the welfare of the residents of the area.
§ 475-132 Violations and penalties.
Any person, business, or entity violating or refusing to comply with any provisions of this chapter shall, upon conviction in a court of competent jurisdiction, be deemed guilty of a misdemeanor and shall be punished by imposition of a fine not to exceed $500 or by imprisonment for a period not to exceed 90 days, or both. Each day that a violation is permitted to exist or occur shall constitute a separate offense. Further, any premises, building, dwelling, or other structure in which an adult regulated use as defined in this part is repeatedly operated or maintained in violation of the provisions of this part shall constitute a public nuisance and shall be subject to nuisance abatement proceedings initiated by the Village in a court of competent jurisdiction. Each day that a violation is permitted to exist or occur shall constitute a separate operation or maintenance of the violation.
§ 475-133 Unlawful activities.
Nothing contained in this part is intended, or shall be construed, to permit or authorize activities which are unlawful under state law or Village ordinance.
§ 475-134 Scienter required to prove violation or liability.
Notwithstanding anything to the contrary, for the purposes of this part, an act by an employee shall be imputed to the adult regulated use for the purpose of establishing a violation of this part only if an employee or operator of the adult regulated use knowingly allowed a violation of this part to occur. It shall be a defense to liability that the employee or operator was powerless to prevent the violation.