This chapter shall be known and may be cited as the WELLS SEXUALLY ORIENTED BUSINESS ZONING ORDINANCE. (Ord. 182, 11-12-1997)

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

   ACCESSORY SEXUALLY ORIENTED USE: A. The offering of retail goods for sale which are classified as sexually oriented business uses on a limited scale and which are incidental to the primary activity and goods and/or services offered by the establishment. Examples of such items include the sale of adult magazines, the sale and/or rental of adult motion pictures, the sale of adult novelties, and the like.

   B.   Dancing or live entertainment characterized by an emphasis on the presentation of "specified sexual activities" or "specified anatomical areas", if such live entertainment is only presented as an occasional activity of the business operation.

   C.   Occasional activity as used in connection with an accessory sexually oriented business use means: dancing or live entertainment characterized by an emphasis on presentation of "specific sexual activities" or "specified anatomical areas" if such live entertainment is only presented as an occasional activity of the business operation as herein regulated.

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

   PRINCIPAL SEXUALLY ORIENTED USE: The offering of goods and/or services which are classified as sexually oriented business uses as a primary or sole activity of a business or establishment and include, but are not limited to, the following:

   A.   Sexually Oriented Body Painting Studio: An establishment or business which provides the service of applying paint or other substance, whether transparent or nontransparent, to or on the body of a patron when such body is wholly or partially nude in terms of "specified anatomical areas".

   B.   Sexually Oriented Adult Video And/Or Adult Bookstore: A building or portion of a building used for the barter, rental or sale of items consisting of printed matter, pictures, slides, records, audiotape, videotape or motion picture film if a substantial or significant portion of such items are distinguished or characterized by an emphasis on the depiction or description of "specified sexual activities" or "specified anatomical areas".

   C.   Sexually Oriented Cabaret: A building or portion of a building used for providing dancing or other live entertainment and if such dancing or other live entertainment is distinguished or characterized by an emphasis on the presentation, display, depiction, or description of "specified sexual activities" or "specified anatomical areas".

   D.   Sexually Oriented Soda Pop Or Nonalcoholic Beverage Clubs: A nightclub, bar, restaurant or other commercial establishment that does not serve alcoholic beverages but features sexual exhibits or displays:

      1.   Persons who appear in a state of nudity or seminude; or

      2.   Live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or

      3.   Films, motion pictures, videocassettes, slides or other photographic reproductions which depict or describe "specified sexual activities" or "specified anatomical areas".

   E.   Sexually Oriented Companionship Establishment: A companionship establishment which provides the service of engaging in or listening to conversation, talk or discussion between an employee of the establishment and a customer, if such service is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas".

   F.   Sexually Oriented Conversation/Rap Parlor: A conversation/rap parlor which provides the service of engaging in or listening to conversation, talk, or discussion, if such service is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas".

   G.   Sexually Oriented Health/Sport Club: A health/sport club which is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas".

   H.   Sexually Oriented Hotel Or Motel: A hotel or motel wherein material is presented which is distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas".

   I.   Sexually Oriented Massage Parlor, Health Club Or Studio: A massage parlor, health club or studio which provides the services of massage, if such service is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas".

   J.   Sexually Oriented Mini-Motion Picture Theater: A building or portion of a building with a capacity for less than fifty (50) persons used for presenting material if such building or portion of a building as a prevailing practice contains such material that is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas" for observation by patrons therein.

   K.   Sexually Oriented Modeling Studio: An establishment whose major business is the provision, to customers, of figure models who are so provided with the intent of providing sexual stimulation or sexual gratification to such customers and who engage in "specified sexual activities" or display "specified anatomical areas" while being observed, painted, painted upon, sketched, drawn, sculptured, photographed or otherwise depicted by such customers.

   L.   Sexually Oriented Motion Picture Arcade: Any place to which the public is permitted or invited wherein coin or slug operated or electronically, electrically or mechanically controlled or operated still or motion picture machines, projectors or other image reproducing devices are maintained to show images to five (5) or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by an emphasis on depicting or describing "specified sexual activities" or "specified anatomical areas".

   M.   Sexually Oriented Motion Picture Theater: A building or portion of a building with a capacity of fifty (50) or more persons used for presenting material if such building or portion of a building as a prevailing practice contains such material that is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas" for observation by patrons therein.

   N.   Sexually Oriented Novelty Business: A business which has as a principal activity in the sale of devices which stimulate human genitals or devices which are designed for sexual stimulation.

   O.   Sexually Oriented Sauna: A sauna facility which provides a steam bath or heat bathing room used for the purpose of bathing, relaxation or reducing, utilizing steam or hot air as a cleaning, relaxing or reducing agent, if the service provided by the sauna is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas".

   P.   Sexually Oriented Steam Room/Bathhouse Facility: A building or portion of a building used for providing a steam bath or heat bathing room used for the purpose of pleasure, bathing, relaxation, or reducing, utilizing steam or hot air as a cleaning, relaxing or reducing agent if the service provided by the steam room/bathhouse facility is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas".

   Q.   Sexually Oriented Barbershop: Any barbershop which is licensed to cut hair, but features sexual exhibits or displays:

      1.   Persons who appear in a state of nudity or seminude; or

      2.   Live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or

      3.   Films, motion pictures, videocassettes, slides or other photographic reproductions which depict or describe "specified sexual activities" or "specified anatomical areas".

   R.   Sexually Oriented Beauty Salon: Any beauty salon which is licensed to cut hair, hairstyling, manicuring, but features sexual exhibits or displays as one of its principal business purposes:

      1.   Persons who appear in a state of nudity or seminude; or

      2.   Live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or

      3.   Films, motion pictures, videocassettes, slides or other photographic reproductions which depict or describe "specified sexual activities" or "specified anatomical areas".

   SEXUALLY ORIENTED BUSINESS USES: Sexually oriented business uses includes adult bookstores, adult motion picture theaters, adult mini-motion picture theaters, adult massage parlors, adult steam room/bathhouse/sauna facilities, adult companionship establishments, adult rap/conversation parlors, adult health/sport clubs, adult cabarets, adult novelty businesses, adult motion picture arcades, adult modeling studios, adult hotels/motels, adult body painting studios, "soda pop" or nonalcoholic beverage club, adult barbershops, adult beauty salons, and other premises, enterprises, establishments, businesses or places open to some or all members of the public, at or in which there is an emphasis on the presentation, display, depiction or description of "specified sexual activities" or "specified anatomical areas" which are capable of being seen by members of the public. Activities classified as obscene as defined by Nevada Revised Statutes 201.235 et seq., are not included. As used in this chapter, for licensing and regulatory purposes, sexually oriented business uses does not include houses of prostitution which are licensed, controlled, operated and zoned under title 3, chapter 6 of this code.

   A.   Specified Anatomical Areas:

      1.   Less than completely and opaquely covered human genitals, pubic region, anus, or female breast(s) from the beginning of the areola or nipple to the end thereof; and

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

   B.   Specified Sexual Activities:

      1.   Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of a sexual relationship, or the use of excretory functions in the context of a sexual relationship, and any of the following sexually oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, sapphism; or

      2.   Clearly depicted human genitals in the state of sexual stimulation, arousal or tumescence; or

      3.   Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or

      4.   Fondling or touching of nude human genitals, pubic region, buttocks or female breast; or

      5.   Situations involving a person or persons, any of whom are nude, clad in undergarments or in sexually revealing costumes, and who are engaged in activities involving the flagellation, torture, fettering, binding or other physical restrain of any such persons; or

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

      7.   Human excretion, urination, menstruation, vaginal or anal irrigation. (Ord. 182, 11-12-1997)

   A.   General: Sexually oriented business uses as defined in this chapter shall be subject to the following general provisions:

      1.   Activities classified as obscene as defined in Nevada Revised Statutes 201.235 et seq., are not permitted and are prohibited.

      2.   Sexually oriented business uses, either principal or accessory, shall be prohibited from locating in any building which is also utilized for residential purposes.

      3.   Principal sexually oriented business uses, except sexually oriented cabarets which provide live entertainment or dancing with performers whose genitals, pubic region and anus are completely and opaquely covered (topless dancing cabarets) shall be prohibited from locating in any building which is also used to store, dispense or consume alcoholic beverages.

      4.   A sexually oriented business use which does not qualify as an accessory use shall be classified as principal sexually oriented use.

   B.   Principal Uses:

      1.   A person commits an offense if that person operates or causes to be operated a principal sexually oriented business in any zoning district other than the areas zoned restricted commercial as defined and described in the Wells zoning code.

      2.   A person commits an offense if the person operates or causes to be operated a principal sexually oriented business in a restricted commercial zoned district within five hundred feet (500') of:

         a.   A church; or

         b.   A public or private elementary or secondary school; or

         c.   A public or private daycare center, preschool, nursery, kindergarten, or similar use; or

         d.   A public park.

      3.   A person commits an offense if the person operates or causes to be operated a principal sexually oriented business in a restricted commercial zoned district within five hundred feet (500') of any existing single- or multiple-family dwelling structure.

      4.   For the purposes of subsections B2 and B3 of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church, a public or private elementary or secondary school, a public or private daycare center, preschool, nursery, kindergarten or school bus stop or similar use or to the nearest boundary of an affected public park, residential district or residential lot. The presence of city, county or other political boundaries shall be irrelevant for purposes of calculating and applying the distance requirements of this chapter.

      5.   Any principal sexually oriented business that fails to comply with subsection B1, B2 or B3 of this section on the date of the adoption hereof but which was lawfully operating before this chapter took effect shall not be deemed to be in violation of this chapter when this chapter takes effect and shall be deemed a nonconforming use. Any such nonconforming use may be allowed to continue; provided, however, that such a nonconforming use may not be extended, enlarged or altered and may not be changed to any other nonconforming principal sexually oriented business use.

It shall be unlawful for any person to continue any such nonconforming use more than one year after its passage when such nonconforming use has been declared to constitute a nuisance or to be detrimental to public health, safety or welfare by a majority vote of the board of councilmen. This section shall not be construed as limiting the right of the city or any person to abate a nuisance under any existing laws or ordinances.

A nonconforming sexually oriented business use which is operationally abandoned or discontinued for a period of six (6) consecutive months or more shall be considered abandoned and shall not be resumed.

      6.   A principal sexually oriented business lawfully operating is not rendered in violation of this chapter by the location, subsequent to the grant or renewal of the sexually oriented business license, of a church, public or private elementary or secondary school, public park, residential district or residential lot within five hundred feet (500') of the principal sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when an application for a license is submitted after a license has been revoked or not renewed.

      7.   Principal sexually oriented business uses shall, in addition to other sign requirements established by this code, also adhere to the following sign regulations:

         a.   Sign messages shall be generic in nature and shall only identify the type of business which is being conducted.

         b.   Shall not contain material classified as advertising as to building content or activities.

         c.   Shall comply with the requirements of size and number for the district in which they are located.

   C.   Accessory Business Uses And Location Thereof:

      1.   Accessory sexually oriented business uses shall:

         a.   Comprise no more than ten percent (10%) of the floor area of the establishment in which it is located and comprise no more than twenty percent (20%) of the gross receipts of the entire business operation; and

         b.   Not involve or include any activity except the sale or rental of merchandise; or

         c.   Not involve any dancing or live entertainment characterized by an emphasis on the presentation of "specified sexual activities" or "specified anatomical areas", unless such live entertainment is only presented as an occasional activity of the business operation. To qualify as an accessory sexually oriented business use, said activity or event shall be limited to no more than twenty one (21) consecutive days taking place at minimum thirty (30) day intervals following a similar activity or event and such activities or events occurring no more than four (4) times within a calendar year.

      2.   Accessory sexually oriented business uses shall be restricted from and prohibit access to minors by the physical separation of such items from areas of general public access:

         a.   Movie Rentals: Display areas shall be restricted from general view and shall be located within a separate room, the access of which is in clear view and under the control of the persons responsible for the operation or shall be in catalogs under the direct control and distribution of the operation.

         b.   Magazines: Publications classified or qualifying as sexually oriented business uses shall not be physically accessible to minors and shall be covered with a wrapper or other means to prevent display of any material other than the publication title.

         c.   Other Use: Accessory sexually oriented business uses not specifically cited shall comply with the intent of this section subject to the approval of the city chief of police.

      3.   Accessory sexually oriented business uses shall be prohibited from both internal and external advertising and signage of sexually oriented materials and products, except for sign messages that are generic in nature and only identify the type of business which is being conducted; provided, however, accessory sexually oriented live entertainment may also use internal and external advertising and signage for up to one week prior to and during such entertainment.

      4.   Accessory sexually oriented business uses activities shall be prohibited at any public show, movie, caravan, circus, carnival, theatrical or other performance or exhibition presented to the general public where minors are admitted.

      5.   A person commits an offense if that person operates or causes to be operated an accessory sexually oriented business use in any zoning district other than the areas zoned restricted commercial, general commercial and tourist commercial as defined and described in the Wells zoning code. (Ord. 182, 11-12-1997)

A person who operates or causes to be operated a sexually oriented business use without having a valid permit due to locational restrictions is subject to a suit for injunction as well as prosecution for the criminal violation. Such violation shall be punishable by a fine of one thousand dollars ($1,000.00) and/or thirty (30) days imprisonment, and if an injunction must be sought, attorney fees and costs will be assessed at the discretion of the court against the sexually oriented business use. (Ord. 182, 11-12-1997)

   A.   If the city denies the issuance of a license to an applicant because the location of the sexually oriented business use is in violation of section 10-13-3 of this chapter, then the applicant may, not later than ten (10) calendar days after receiving notice of the denial, file with the city clerk a written request for an exemption from the locational restrictions of section 10-13-3 of this chapter.

   B.   If the written request is filed with the city clerk within the ten (10) day limit, the board of councilmen shall hear and consider the request. The board of councilmen shall set a date for the hearing within sixty (60) days from the date the written request is received.

   C.   The board of councilmen shall hear and consider evidence offered by any interested person. The formal rules of evidence do not apply.

   D.   The board of councilmen may, in its discretion, grant an exemption from the locational restrictions of section 10-13-3 of this chapter if it makes the following findings:

      1.   The location of the proposed sexually oriented business use will not have a detrimental effect on nearby properties or by contrary to the public safety or welfare; and

      2.   The location of the proposed sexually oriented business use will not downgrade the property values or quality of life in the adjacent areas or encourage the development of blight; and

      3.   The location of a sexually oriented business use in the area will not be contrary to any program of neighborhood conservation nor will it interfere with any efforts of neighborhood renewal or restoration; and

   E.   If the board of councilmen grants the exemption, the exemption is valid for two (2) years from the date of the board of councilmen's action. Upon the expiration of an exemption, the sexually oriented business use is in violation of the locational restrictions of section 10-13-3 of this chapter until the applicant applies for and receives another exemption.

   F.   If the board denies the exemption, the applicant may not reapply for an exemption until at least twelve (12) months have elapsed since the date of the board of councilmen's action. (Ord. 182, 11-12-1997)