West Des Moines City Zoning Code
CHAPTER 17
ADULT ENTERTAINMENT FACILITIES
9-17-1: PURPOSE:
In adopting this Chapter, it is recognized that adult entertainment facilities have certain objectionable side effects which render these adult facilities incompatible with residential and family-oriented uses, when the adult facilities are located directly adjacent to such uses. This Chapter seeks to ensure that residential and family-oriented uses, and adult entertainment facilities will be located in separate and compatible locations. It is a subject of legitimate concern for the City to use its zoning power to preserve the quality of life, preserve the City's neighborhoods and to meet effectively the increasing encroachments of urbanization upon the quality of life within the City. (Ord. 1054, 7-6-1993)
9-17-2: DEFINITIONS:
As used in this Chapter, the following terms shall have the following meanings:
ADULT ENTERTAINMENT FACILITIES: Includes but is not limited to the following:
A. Adult Bookstore: An establishment having as the primary portion of its stock in trade, books, magazines and other periodicals which are substantially devoted to the depiction of "specified sexual activities" and "specified anatomical areas".
B. Adult Business: Any business or establishment where a "specified sexual activity" or a "specified anatomical area" is displayed.
C. Adult Motel: A motel or similar establishment offering public accommodations for any form of consideration which provides patrons with closed circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by an emphasis upon the depiction or description of "specified sexual activities" or "specified anatomical areas".
D. Adult Movie Theater: Any theater, arcade or similar establishment where enclosed building or open air facility is used for presenting material in the form of motion picture film, video tape or other similar means which is substantially devoted to the depiction of "specified sexual activities" and "specified anatomical areas" for observation by persons therein.
E. Adult Newsrack: Any coin-operated machine or device which dispenses material substantially devoted to the depiction of "specified sexual activities" and "specified anatomical areas".
F. Adult Nightclub: Any club, cabaret, nightclub, bar, or similar establishment where an enclosed building or open air facility is used for live performances which are characterized by the exposure of "specified sexual activities" and "specified anatomical areas" for observation by persons therein.
SPECIFIED ANATOMICAL AREAS:
A. Less than completely and opaquely covered:
1. Human genitals;
2. Mature human buttocks;
3. Mature human female breast below a point immediately above the top of the areola; and
B. Human male genitals in a discernible turgid state, even if completely and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES:
A. Human genitals in a state of sexual stimulation or arousal;
B. Acts of human masturbation, sexual intercourse or sodomy;
C. Fondling or other touching of human genitals, pubic region, buttock or female breast; and
D. Minors engaged in a prohibited sexual act or simulation of a prohibited sexual act. (Ord. 1054, 7-6-1993; amd. Ord. 2566, 5-15-2023)
9-17-3: LOCATION OF ADULT BOOKSTORES, MOVIE THEATERS, NIGHTCLUBS, MOTELS, ADULT BUSINESSES AND NEWSRACKS:
No person, whether as principal or agent, clerk or employee, either for himself or any other person, or as an officer of any corporation, or otherwise, shall place, maintain, own or operate any adult bookstore, adult movie theater, adult nightclub, adult motel, adult business or adult newsrack in the following locations:
A. Locations:
1. In any residential area in the City including upon any sidewalk abutting upon such residential area;
2. Within one thousand feet (1,000') of any residentially zoned or used property, or any property designated on the City's Comprehensive Plan as residentially oriented;
3. Within one thousand feet (1,000') of any parcel of real property upon which is located any of the following facilities:
a. An elementary school, junior high school or senior high school;
b. A church which conducts religious programs;
c. Park or recreational facilities operated and improved by the City, Polk or Dallas County, the Polk or Dallas County Conservation Board or the State of Iowa;
d. Federal, State, County, City or special district governmental offices;
e. Supermarket or convenience market primarily engaged in the sale of food;
f. Restaurant, fast-food or food establishment catering to family trade;
4. Within two thousand feet (2,000') of any other adult entertainment facility, as defined in Section 9-17-2 of this Chapter. "Adult newsrack" for the purpose of this Section means a single coin-operated device, and not a machine with double or triple dispensing capacity.
B. Measurement of Distance: The distance between any two (2) adult entertainment facilities shall be measured in a straight line, without regard to intervening structures, from the closest exterior structure wall of each business. The distance between any adult entertainment facilities and any religious institution, school or public park, government office, supermarket, restaurant or bar/restaurant or any property designated for residential use or used for residential purposes shall be measured in a straight line, without regard to intervening structures, from the closest property line of the adult entertainment facilities to the closest property line of the religious institution, school, public park, government office, supermarket, restaurant or bar/restaurant or the property designated for residential use or used for residential purposes.
C. Signs: All on-site signage shall conform to the Sign Ordinance1. See Chapter 18 of this Title.1 of this Title.
D. Viewing Area:
1. It is unlawful to maintain, operate or manage or permit to be maintained, operated or managed any adult theater or arcade in which the viewing areas are not visible from a continuous main aisle or are obscured by a curtain, door, wall or other enclosure. For purposes of this Section, "viewing area" means the area where a patron or customer would ordinarily be positioned while watching the performance, picture, show or film.
2. It is unlawful for more than one person at a time to occupy any individually partitioned viewing area or booth.
3. It is unlawful to create, maintain or permit to be maintained any holes or other openings between any two (2) booths or individual viewing areas for the purpose of providing viewing or physical access between the booth or individual viewing area.
4. The opening to the viewing area shall be from the main aisle. (Ord. 1054, 7-6-1993; amd. Ord. 1380, 7-26-1999; Ord. 2566, 5-15-2023)
9-17-4: IDENTIFICATION OF NEWSRACKS:
The owners of adult newsracks shall have their name, address and telephone number clearly visible on each newsrack located within the City. If the identification is not clearly visible that shall be grounds for immediate impoundment of the newsrack by the City. (Ord. 1054, 7-6-1993)
9-17-5: IMPOUNDING OF ADULT NEWSRACKS:
A. Impoundment:
1. The provisions of this Code dealing with nonconforming uses shall not be applicable to the location of adult newsracks existing on the effective date hereof, but thereafter the location of adult newsracks shall be subject to the nonconforming use provisions of this Code.
2. An adult newsrack found in violation of this Chapter may be impounded by any police officer or Code enforcement officer of the City after the following actions have occurred:
a. A notice of violation has been affixed to the adult newsrack stating the section of this Chapter which has been violated and stating that the adult newsrack will be impounded if the violation is not abated within seven (7) days;
b. A notice of violation has been sent by certified mail, return receipt requested, to the owner of the adult newsrack as identified on the newsrack, if readable, stating the section of this Chapter which has been violated and stating that the adult newsrack will be impounded if the violation is not abated within seven (7) days; (Ord. 1054, 7-6-1993)
c. The violation has not been abated within seven (7) days of the posting of the notice of violation or the mailing of the certified letter, whichever occurs later; (Ord. 1380, 7-26-1999)
d. The Police Department or Code enforcement office has presented to any magistrate affidavits or other evidence sufficient to show a prima facie violation of this Chapter;
e. A magistrate has issued a written order permitting the impounding of the adult newsrack pursuant to this Chapter.
3. Whenever an adult newsrack is impounded, a complaint for violation of Section 9-17-3 of this Chapter must be filed within fourteen (14) days of the impounding. If a final appealable decision in such action is not rendered within sixty (60) days from the filing of the action, the complaint shall be dismissed; provided, however, that no complaint shall be dismissed because a final appealable decision was not rendered within sixty (60) days of the filing of the action if the defendant named therein is responsible for extending the judicial determination beyond the allowable time limit.
4. The person who provides sufficient proof of ownership of such adult newsrack may have such adult newsrack, together with all monies, if any, impounded, returned immediately after the filing of a complaint for violation of Section 9-17-3 of this Chapter upon application to the Police Department or Code enforcement officer. The person who provides sufficient proof of ownership of such adult newsrack may have the contents of such newsrack returned upon the date that a final appealable decision in such action is rendered or upon the date the action is dismissed, upon application to the Police Department or the Code enforcement officer. (Ord. 1054, 7-6-1993)
9-17-6: PENALTY:
Any person who violates the provisions of this Chapter upon conviction shall be punished as set forth in Section 1-4-1 of this Code. (Ord. 1380, 7-26-1999)
9-17-7: MINIMAL DISTANCE VIOLATIONS:
It is recognized that adult newsracks may be jostled or inadvertently moved minor distances by third persons with a resulting violation of the provisions of Section 9-17-3 of this Chapter. Notwithstanding any other provision of this Chapter, such a minimal distance violation, not exceeding five feet (5'), shall not constitute a violation of this Chapter, and the City's Police Department or the City's Code enforcement officer shall notify the owner of the adult newsrack by certified mail, return receipt requested, of the existence of the minimal distance requirements. Notwithstanding the provisions of this Section, all adult newsracks shall comply with the encroachment permit provisions of this Code. (Ord. 1054, 7-6-1993)
9-17-8: PERMITTED AREAS:
The areas in the City in which adult entertainment facilities are permitted are defined in the Commercial Use Matrix1. See Section 9-6-6 of this Title.1 of this Title. (Ord. 1380, 7-26-1999)