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Wheeling City Zoning Code

ARTICLE 1361

Adult Establishments

1361.01 PURPOSE.

   It is the purpose of this ordinance to regulate adult establishments in order to promote the health, safety, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of adult establishments within the City. The provisions of this ordinance 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 ordinance 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 ordinance to condone or legitimize the distribution of obscene material. (Ord. 14993. Passed 8-15-17.)

1361.02 FINDINGS AND RATIONALE.

   (a)   Based on evidence of the adverse secondary effects of adult uses presented in hearings and in reports made available to Council, and on findings, interpretations, and narrowing constructions incorporated in various cases and based upon reports concerning secondary effects occurring in and around adult establishments, which documents have been received by City Council in the report of the Planning Commission and are incorporated herein by reference.
   (b)   Council finds:
      (1)    Adult establishments, 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, human trafficking, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban blight, litter, and sexual assault and exploitation.
      (2)    Adult establishments should be separated from sensitive land uses to minimize the impact of their secondary effects upon such uses, and should be separated from other adult establishments, to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of adult establishments in one area.
      (3)    Each of the foregoing negative secondary effects constitutes a harm which the City has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the City's rationale for this ordinance, exists independent of any comparative analysis between sexually oriented and non-sexually oriented businesses. Additionally, the City's interest in regulating adult establishments extends to preventing future secondary effects of either current or future adult establishments that may locate in the City. The City finds that the cases and documentation relied on in this ordinance are reasonably believed to be relevant to said secondary effects.
   (c)   The City hereby adopts and incorporates herein its stated findings and legislative record related to the adverse secondary effects of adult establishments, including the judicial opinions and reports related to such secondary effects.
(Ord. 14993. Passed 8-15-17.)

1361.03 DEFINITIONS.

   The following words, terms, and phrases, when used in this Zoning Ordinance, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:    
   (a)   Adult establishment. An "adult arcade," an "adult bookstore," an "adult motion picture theater," a "semi-nude lounge," or a "sex paraphernalia store."
   (b)   Adult arcade. A commercial establishment to which the public is permitted or invited that maintains booths or rooms smaller than 100 square feet, wherein image-producing devices are regularly maintained, and where a fee is charged to access the booths or rooms or to view the images displayed on the image-producing devices.
   (c)   Adult bookstore. A commercial establishment which, as one of its principal business activities, offers for sale or rental for any form of consideration any one or more of the following: books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the display of "specified sexual activities" or "specified anatomical areas." A "principal business activity" exists where the commercial establishment meets any one or more of the following criteria:
      (1)   At least 35% of the establishment's displayed merchandise consists of said items, or
      (2)   At least 35% of the establishment's revenues derive from the sale or rental, for any form of consideration, of said items, or
      (3)   The establishment maintains at least 35% of its floor space for the display, sale, and/or rental of said items (aisles and walkways used to access said items, as well as cashier stations where said items are rented or sold, shall be included in "floor space" maintained for the display, sale, or rental of said items); or
      (4)   The establishment maintains at least five hundred square feet (500 sq. ft.) of its floor space for the display, sale, and/or rental of said items (aisles and walkways used to access said items, as well as cashier stations where said items are rented or sold, shall be included in "floor space" maintained for the display, sale, or rental of said items); or
      (5)   The establishment regularly offers for sale or rental at least five hundred (500) of said items; or
      (6)   The establishment regularly makes said items available for sale or rental and holds itself out, in any medium, by using "adult," "adults-only," "XXX," "sex," "erotic," "novelties," or substantially similar language, as an establishment that caters to adult sexual interests.
   (d)   Adult motion picture theater. A commercial establishment to which the public is permitted or invited that maintains viewing rooms that are 100 square feet or larger wherein films or videos characterized by their emphasis upon "specified sexual activities" or "specified anatomical areas" are regularly shown.
   (e)   Characterized by. This phrase means the essential character or quality of an item. As applied in this ordinance, no business shall be classified as an adult establishment by virtue of showing, selling, or renting materials rated NC-17 or R by the Motion Picture Association of America.
   (f)   Floor space. The floor area inside an establishment that is visible or accessible to patrons for any reason, excluding restrooms.
   (g)   Nudity or nude conduct. The showing of the human male or female genitals, pubic area, vulva, or anus with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola. For purposes of this ordinance, a "fully opaque covering" must be non-flesh colored, shall not consist of any substance that can be washed off the skin, such as paint or make-up, and shall not simulate the appearance of the anatomical area behind it.
   (h)   Operator. Any person on the premises of an adult establishment who manages, supervises, or controls the establishment or a portion thereof. A person may be found to be an operator regardless of whether such person is an owner, part owner, or licensee of the establishment.
   (i)   Regional shopping mall (enclosed). A group of retail and other commercial establishments that is planned, developed, and managed as a single property, with on-site parking provided around the perimeter of the shopping center, and that is generally at least forty acres in size and flanked by two or more large "anchor" stores, such as department stores. The common walkway or "mall" is enclosed, climate-controlled and lighted, usually with an inward orientation of the stores facing the walkway.
   (j)   Regularly. The consistent and repeated doing of an act on an ongoing basis.
   (k)   Semi-nude or semi-nudity. The showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or the showing of the male or female buttocks. This definition shall include the lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part.
   (l)   Semi-nude lounge. A nightclub, bar, juice bar, restaurant, bottle club, or similar commercial establishment that regularly offers live semi-nude conduct. No establishment shall avoid classification as a semi-nude lounge by offering nude conduct.
   (m)   Sexual device. Any three (3) dimensional object designed for stimulation of the male or female human genitals, anus, buttocks, female breast, or for sadomasochistic use or abuse of oneself or others and shall include devices commonly known as dildos, vibrators, penis pumps, cock rings, anal beads, butt plugs, nipple clamps, and physical representations of the human genital organs. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy.
   (n)   Sex paraphernalia store. A commercial establishment:
      (1)   where more than 100 sexual devices are regularly made available for sale or rental; or
      (2)   where sexual devices are regularly made available for sale or rental and the establishment regularly holds itself out, in any medium, by using "adult," "adultsonly," "XXX," "sex," "erotic," "novelties," or substantially similar language, as an establishment that caters to adult sexual interests.
This definition shall not be construed to include any establishment located within an enclosed regional shopping mall or any pharmacy or establishment primarily dedicated to providing medical products.
   (o)   Specified anatomical areas. This term means and includes:
      (1)   Less than completely and opaquely covered: human genitals, pubic region; buttock; and female breast below a point immediately above the top of the areola; and
      (2)   Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
   (p)   Specified sexual activity. This term means and includes:
      (1)   intercourse, oral copulation, masturbation or sodomy; or
      (2)   excretory functions as a part of or in connection with any of the activities described in (a) above.
   (q)   Viewing room. The room or booth where a patron of an adult establishment would ordinarily be positioned while watching a film, videocassette, digital video disc, or other video on an image-producing device.
      (Ord. 14993. Passed 8-15-17.)

1361.04 REGULATIONS.

   (a)    No person shall establish, operate, or cause to be operated an adult establishment in the City, unless said adult establishment in a D-1, D-2, or D-3 district and is at least
      (1)    500 linear feet from the front entrance to another adult establishment; and
      (2)    500 linear feet from the front entrance to a places of worship; and
      (3)    500 linear feet from the front entrance to a public or private primary or secondary school
   (b)    For the purpose of this section, measurements shall be made along the path in which
persons in general could take in going from one to the other, in a straight line along a sidewalk, alley or road from the front entrance associated with any of the land use(s) identified in subsection (a) above to the closest part of any property boundary proposed for use by an adult establishment.
   (c)    No operator of an adult establishment shall violate the regulations in this section or knowingly or recklessly allow any person to violate the regulations in this section.
   (d)    No person shall knowingly or intentionally, in an adult establishment, engage in a specified sexual activity.
   (e)    No person shall knowingly or intentionally, in an adult establishment, appear in a nude or semi-nude condition unless the person, while nude or semi-nude, remains at least six (6) feet from all patrons and on a stage at least eighteen (18) inches from the floor in a room of at least six hundred (600) square feet.
   (f)    No operator of an adult establishment shall knowingly or recklessly allow a room in the adult establishment to be simultaneously occupied by any patron and any other person who is nude or semi-nude or who appears nude or semi-nude on the premises of the adult establishment, unless an operator of the adult establishment is present in the same room.
   (g)    No person who appears nude or semi-nude in an adult establishment shall knowingly or intentionally touch a customer or the clothing of a customer on the premises of the adult establishment. No customer shall knowingly or intentionally touch such a person or the clothing of such a person on the premises of an adult establishment.
   (h)    No person shall knowingly or recklessly allow a person under the age of eighteen (18) years to be or remain on the premises of an adult establishment.
(Ord. 14993. Passed 8-15-17.)