Whiteville City Zoning Code
SEXUALLY ORIENTED
BUSINESSES
§ 155.175 PURPOSE.
(A) Purpose. It is the purpose of this subchapter to regulate sexually oriented businesses in order to protect public health, safety and welfare of citizens and visitors and to establish reasonable and uniform regulations to prevent the deleterious location of sexually oriented businesses within the city. The provisions of this subchapter 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 subchapter 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 subchapter to condone or legitimize the distribution of obscene material.
(B) Rationale. The following regulations were designed to address two very distinct issues.
(1) One. The city wants to minimize the potential secondary impacts of sexually oriented businesses on those identified sensitive uses, i.e., residential districts, schools, churches, day care centers and the like.
(2) Two. The city wants to provide an area where people can exercise their First Amendment right to expression without infringing on other peoples’ rights. In allowing these uses, the city has had to balance its constitutional obligations with the need to guarantee the local economy and quality of life is not impacted.
(C) Findings. Based on evidence concerning the adverse secondary effects of adult uses on the community and on findings incorporated in the cases City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), Young v. American Mini Theaters, U.S. 50 (1976) and Barnes v. Glenn Theater, Inc., 501 U.S. 560 (1991), and on studies in other communities including, but not limited to: Phoenix, Arizona; Tucson, Arizona; Saint Paul, Minnesota; Houston, Texas; Austin, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; and also on findings from the Report of the Attorney General’s Working Group on the Regulation of Sexually Oriented Businesses (June 6, 1989, State of Minnesota), and a report on The Regulation of Adult Establishments in North Carolina (May 22, 1996), the city finds the following.
(1) According to the studies referenced above, sexually oriented businesses tend to lend themselves to ancillary unlawful and unhealthy activities that are uncontrolled by the operators of the establishments. Further, without reasonable regulations, there is no mechanism to make owners of these establishments responsible for the activities that occur on their premises.
(2) Employees of certain sexually oriented businesses engage in higher incidence of certain types of illicit sexual behavior than employees of other commercial establishments.
(3) Sexual acts, including masturbation and oral and anal sex, occur at certain sexually oriented businesses, especially those which provide private or semi-private booths or cubicles for viewing films, videos or live sex shows.
(4) Offering and providing such space encourages such activities, which creates unhealthy conditions.
(5) Persons frequent certain adult theaters, adult cabarets. and other sexually oriented businesses for the purpose of engaging in sex within the premises of such sexually oriented businesses.
(6) At least 50 communicable diseases may be spread by activities occurring in sexually oriented businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella infections.
(7) Since 1951 and to the present, there has been an increasing cumulative number of reported cases of AIDS caused by the human immunodeficiency virus infection (HIV) in the United States and in the state.
(8) The number of cases of early (less than one year) syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982 and 68,953 reported in the United States in 1996 through 1997.
(9) The number of cases of gonorrhea in the United States reported annually remains at a high level, with 392,848 cases being reported in 1995.
(10) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.
(11) Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy and, in part, because of the unregulated nature of the activities and the failure of the owners and the operators of the facilities to self-regulate those activities and maintain those facilities.
(12) Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view adult oriented films.
(13) Numerous studies and reports have demonstrated that the consumption of alcohol or alcoholic beverages at a sexually oriented business increases the potential for illicit sexual activity, violence, acts characterized as disturbing the peace, and other identified nuisances to occur.
(14) Studies have demonstrated that sexually oriented businesses are regional businesses and as such have a regional draw.
(15) Small towns do not have sufficient target populations to support sexually oriented businesses as has been documented in numerous trade area studies.
(16) Studies have demonstrated that a sexually oriented business in a small town will draw in a regional population consisting largely of adult males in their twenties, whose interests and activities are different from those of the older adults or families.
(17) The findings noted in divisions (C)(1) through (C)(16) above raise substantial governmental concerns.
(18) Sexually oriented businesses have operational characteristics, which should be reasonably regulated in order to protect substantial governmental concerns.
(19) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and operators of the sexually oriented businesses. Further, such a licensing procedure will place a heretofore nonexistent incentive on the operators to see that the sexually oriented business is run in a manner consistent with the health, safety and welfare of its patrons and employees, as well as the citizens and visitors of the town. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein.
(20) Requiring licensees of sexually oriented businesses to keep information regarding current employees and certain past employees will help to reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments.
(21) The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually oriented business, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases.
(22) It is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain employees who may engage in the conduct which this subchapter is designed to prevent or who are likely to be witnesses to such activity.
(23) The fact that an applicant for a sexually oriented business license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of federal and state law and this subchapter.
(24) The barring of such individuals from the management of adult uses serves as a deterrent to and prevents conduct, which leads to the transmission of sexually transmitted diseases.
(25) By establishing locational criteria to keep sexually oriented businesses away from sensitive uses, such as residential districts, schools, day care centers and the like, the potential for the identified secondary harms to be felt by a sensitive use is lowered.
(26) By establishing additional lighting requirements for the interior and exterior portions of a sexually oriented business, the potential for illicit sexual activity or criminal activities occurring on or near the premises of a sexually oriented business is lowered.
(27) By establishing a prohibition on employing, or allowing within the premises, minors, the potential for the exploitation of such minors by a sexually oriented business is lowered.
(28) By requiring internal design configuration standards and the location of manager’s stations to allow the operators to observe and police their own patrons, the potential for illicit sexual activity or criminal activities occurring at a sexually oriented business is lowered.
(29) The general welfare, health and safety of the citizens and visitors of the city will be promoted by the enactment of these regulations.
(Ord. passed 11-26-2002, § 116.01; Ord. 2021-Z-19, passed 6-22-2021)
§ 155.176 DEFINITIONS.
For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ADULT ARCADE. 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 maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
ADULT BOOKSTORE. A bookstore:
(1) Which receives a majority of its gross income during any calendar month from the sale of publications (including books, magazines and other periodicals) which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined in this section; and
(2) Having as a preponderance of its publications, books, magazines and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities of specified anatomical areas, as defined in this section.
ADULT CABARET. A nightclub, bar, restaurant or similar commercial establishment that for at least 10% of its business hours in any day features:
(1) Persons who appear in a state of nudity or semi-nudity;
(2) Live performances that are characterized by the exposure of specified anatomical areas or by specified sexual activities;
(3) Films, motion pictures, video cassettes, slides or other photographic reproductions that are characterized by the depiction or description of specified sexual activities or specified anatomical areas; or
(4) Persons who engage in lewd, lascivious or erotic dancing or performances that are intended for the sexual interests or titillation of an audience or customers.
ADULT ESCORT. A person who, for consideration, agrees or offers to act as a companion, guide or date for another person for the purpose of participating in, engaging in, providing or facilitating specified sexual activities.
ADULT ESCORT AGENCY. A person or business that furnishes, offers to furnish or advertises to furnish adult escorts as one of its business purposes for a fee, tip or other consideration.
ADULT LIVE ENTERTAINMENT. Any performance of, or involving, the actual presence of real people which exhibits specified sexual activities or specified anatomical areas, as defined in this section.
ADULT LIVE ENTERTAINMENT BUSINESS. Any establishment or business wherein adult live entertainment is shown for observation by patrons.
ADULT MEDIA CENTER. Includes, but is not limited to, an adult bookstore and an adult video store and means any place:
(1) Which receives more than 50% of its gross income during any calendar month from the sale, rental or both of books, periodicals, magazines, video tapes, CD-ROM, computer software, movies and other products offered in photographic, print, electronic, magnetic or digital or other imaging media which are distinguished or characterized by their emphasis on matter depicting, describing or presenting specified anatomical areas as defined in G.S. § 14-202.10(10), or specified sexual activities as defined in G.S. § 14-202.10(11), or sexually oriented devices as defined in G.S. § 14-202.10(9), or a combination thereof;
(2) Having more than 25% of its merchandise inventory consisting of books, periodicals, magazines, video tapes, CD-ROM, computer software, movies and other products offered in photographic, print, electronic, magnetic or digital or other imaging media which are distinguished or characterized by their emphasis on matter depicting, describing or presenting specified anatomical areas as defined in G.S. § 14-202.10(10), or specified sexual activities as defined in G.S. § 14-202.10(11), or sexually oriented devices as defined in G.S. § 14-202.10(9), or any combination thereof; or
(3) A commercial establishment may have other business purposes on the same building site that do not involve the offering for sale or rental of material depicting or describing specified sexual activities or specified anatomical areas and still be categorized as ADULT MEDIA CENTER. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an ADULT MEDIA CENTER so long as one of its business purposes is the offering for sale or rental for consideration the specified materials which depict or describe specified sexual activities or specified anatomical areas.
ADULT MERCHANDISE. Any product dealing in or with explicitly sexual material as characterized by matter depicting, describing or relating to specified sexual activities or specified anatomical areas.
ADULT MINI MOTION PICTURE THEATER. An enclosed building with viewing booths designed to hold patrons which is used for presenting motion pictures, a preponderance of which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas as defined in this section, for observation by patrons therein.
ADULT MOTEL. A hotel, motel or similar commercial establishment that:
(1) Offers accommodation 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 that are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and has a sign visible from the public rights-of-way that advertises the availability of this adult type of photographic reproductions;
(2) Offers a sleeping room for rent for a period of time that is less than 12 hours; or
(3) Allows a tenant or occupant of a sleeping room to rent the room for a period of time that is less than 12 hours.
ADULT MOTION PICTURE THEATER. An enclosed building or premises used for presenting motion pictures, a preponderance of which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined in this section, for observation by patrons therein. ADULT MOTION PICTURE THEATER does not include any adult mini motion picture theater as defined in this section.
ADULT THEATER. A theater, concert hall, auditorium or similar commercial establishment that for at least 10% of its business hours in any day, features persons who appear in a state of nudity or live performances that are characterized by the exposure of specified anatomical areas or by specified sexual activities.
ADULT VIDEO STORE. A commercial establishment that, as one of its principal business purposes, 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 picture, video tapes or cassettes, video reproductions, CD-ROMs, slides; or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or any combination thereof.
BOTTOMLESS. A state of nudity or semi-nudity where a person exposes to view a human bare buttock, anus, male genitals or female genitals.
EMPLOYEE OF A SEXUALLY ORIENTED BUSINESS. A person who performs any service on the premises of a sexually oriented business 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 business. 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.
LAP. The area between a person’s knees and his or her waist.
NON-ADULT USE BUSINESSES. Any business or establishment not defined as a sexually oriented business in this section, and specific terms of the zoning regulations. NON-ADULT USE BUSINESSES shall not display or merchandise adult, sexually oriented implements and paraphernalia, including, but not limited to, dildos, auto sucks, sexually oriented vibrators, edible underwear, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas and similar sexually oriented devices.
NUDE MODEL STUDIO. Any place where a person who appears in a state of nudity or displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons who pay money or any form of consideration. There is excepted from this definition any studio which is part of a school for artists who are regularly enrolled in a course of instruction in the arts, and in which the use of nude models involves less than 10% of the course hours.
NUDITY or A STATE OF NUDITY. The appearance of a human bare buttock, anus, male genitals, female genitals or female breast without a fully opaque complete covering of the breast below a point immediately above the top of the areola, or human male genitals in a discernibly turgid state even if completely and opaquely covered.
PATRON. Any person who is physically present on the premises of a sexually oriented business and who is not an owner, employee, agent, subcontractor or independent contractor of said business, or any entertainer or performer at said business.
SEMI-NUDE. A state of dress in which clothing covers no more than the human bare buttock, anus, male genitals, female genitals or female breast without a fully opaque complete covering, of the breast below a point immediately above the top of the areola, or human male genitals in a discernibly turgid state even if completely and opaquely covered.
SEXUALLY ORIENTED BUSINESS. A business which offers its customers or patrons any device, activity or demonstration depicting specified sexual activities, or which is intended to appeal to sexual interests, titillation or arousal of the customer or patron. A SEXUALLY ORIENTED BUSINESS shall include an adult establishment as defined in G.S. § 14-202.10(2) and, in addition, without limitation, adult arcade, adult bookstore, adult video store, adult cabaret, adult media center, adult live entertainment business, adult motel, adult motion picture theater, adult mini motion picture theater, adult theater, adult escort agency and nude model studio.
SEXUALLY ORIENTED BUSINESS ACTIVITIES. Those activities usually provided for, promoted or offered by a sexually oriented business as defined herein; whether or not as the principal business purpose or as a sideline or accessory business purpose and whether or not in connection with or on the same premises with a business which is not a sexually oriented business.
SEXUALLY ORIENTED DEVICES. Any artificial or simulated specified anatomical area or other device or paraphernalia that is designed principally for specified sexual activities, but shall not mean any contraceptive device.
SPECIFIED ANATOMICAL AREAS.
(1) Less than completely and opaquely covered:
(a) Human genitals, pubic region;
(b) Buttock; or
(c) Female breast below a point immediately above the top of the areola.
(2) Human male genitals in a discernibly turgid state; even if completely and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES.
(1) Human genitals in a state of sexual stimulation or arousal;
(2) Acts of human masturbation, sexual intercourse or sodomy; or
(3) Fondling or other erotic touching of human genitals, pubic regions, buttocks or female breasts.
TOUCH or TOUCHING. Any form of intentional, physical, bodily contact, whether exposed or clothed parts of either body are involved.
(Ord. passed 11-26-2002, § 116.02; Ord. 2021-Z-19, passed 6-22-2021)
§ 155.177 LICENSING OF SEXUALLY ORIENTED BUSINESS.
The following license provisions and regulations are ordained for the purpose of operating a sexually oriented business.
(A) No person shall operate a sexually oriented business unless such person has received a sexually oriented business license as provided by this section.
(B) Every application for a sexually oriented business license prescribed herein shall be upon a form approved by the City Manager and shall be filed with the City Clerk. An application shall be made under oath and shall contain the following information:
(1) If the applicant is a person, the name and residence address of such person including any aliases or other names by which the applicant is known or which the applicant has used at any time; the residence and address for the past two years, the business and home telephone numbers, occupation, date and place of birth, Social Security number, driver’s license number and a recent photograph of the applicant. If the applicant is a partnership, corporation, association or other entity, the same information is a requirement for all corporate officers, directors and any individuals having a 10% or greater interest in the corporation, partnership, association or other entity;
(2) The address of the premises where the proposed sexually oriented business is proposed to be located;
(3) A complete statement of all convictions of any person whose name is required to be given in division (B)(1) above for any sexually related crime, prostitution or any violation of any law relative to prostitution, or of any crime involving sexual misconduct as codified in the laws of the United States, this or any other state, including, but not limited to, convictions of violations of any of the offenses enumerated in G.S. Ch. 14, Articles 26, 26A and 27, or the same offenses as codified in the laws of the United States, this or of any other state;
(4) A complete statement of any denial and/or revocation of any license, including the grounds and reasons theretofore, to operate a sexually oriented business by any governmental unit listed by name and address of any person whose name is required to be given in division (B)(1) above for the five years preceding the date of the filing of this application;
(5) A complete statement of any conviction for violation of any statute, law, ordinance or regulation concerning the operation of a sexually oriented business by any governmental unit listed by name and address of any person whose name is required to be given in division (B)(1) above for the five years preceding the date of the filing of this application;
(6) A description of any other business proposed to be operated on the same premises or on adjoining premises owned or controlled by the applicant or any other person or entity listed in division (B)(1) above;
(7) All applicants, and any individual listed in division (B)(1) above shall submit to fingerprinting by a city police officer. The fingerprint cards shall be submitted to the F.B.I. for processing. Returned fingerprint cards and any criminal histories shall be kept on file in the City Police Department;
(8) A site plan showing the floor layout, customer area, and location of the structure to be used as a sexually oriented business on the property in accordance with all the requirements outlined in this subchapter;
(9) A current certificate and straight-line drawing prepared by a registered land surveyor depicting the property lines and the structure containing the proposed sexually oriented business and its distance from existing land uses to include, but not be limited to, residential zoning districts, other sexually oriented business, churches or any structure or building being used as a church or religious facility, libraries, schools, state licensed child day care centers, public playgrounds, public swimming pools, public parks and any outdoor recreational use; and
(10) A statement signed under oath that the applicant has personal knowledge of the information contained in the application, that the information contained therein is true and correct, the applicant consents to the investigation of his or her background by the city to verify the information provided, and that the applicant has read and understands the provisions of this subchapter regulating sexually oriented businesses.
(C) In addition to the above requirements, every licensed sexually oriented business shall maintain a current list of all employees employed by the licensee showing the legal name, current stage name, current address, current phone number, date of birth and current driver’s license number. In addition, the licensee of a sexually oriented business shall maintain a record updated at least every six months of the height, weight, hair and eye color, scars, tattoos and a passport quality photograph of each employee.
(D) The records required by this section shall be kept available and open for inspection by the Police Department at any time, or the State or County Health Departments, or by the Director of Planning, or his or her authorized representative, at any time the sexually oriented business is open for business.
(Ord. passed 11-26-2002, § 116.03)
§ 155.178 ISSUANCE OF LICENSE.
(A) The City Clerk shall transmit a copy of the completed application, containing all the required information outlined in this section to the Tax Collector for privilege licensing, Police Department for an investigative report, the Planning Department to determine compliance with all zoning, building regulations and ordinances and the Fire Department to determine compliance with any law relating to the fire protection.
(B) The Police, Planning and Fire Departments shall, within a reasonable time, report the results of their examinations to the Director of Planning. The Director of Planning shall check the information for completeness and prepare findings. These findings shall be presented to the City Planning and Zoning Board for the City Council. The intent is to combine the special use permit with the licensing procedures of this subchapter in order to process the license and the special use permit at the same time.
(C) A completed application accompanied by all required information outlined in this section and all reports and recommendations as outlined in this section shall be submitted to the City Clerk and placed on the agenda of the next regularly scheduled Council meeting. Advertising and other procedures associated with a quasi-judicial hearing must be followed.
(D) Upon the receipt of said application for a sexually oriented business license, the City Council shall review the special use application, the site plan and the sexually oriented business license application and approve the issuance of the license if the Council determines that:
(1) The application contains no misstatement of fact;
(2) The applicant, or any person or entity having any legal or beneficial ownership interest in the application, has not been convicted of a sexually related crime, prostitution or a violation of any law relative to prostitution, crime involving sexual misconduct as codified in the laws of the United States, this or any other state, including, but not limited to, convictions of violations of the offenses enumerated in G.S. Ch. 14, Articles 26, 26A and 27, or the same offenses as codified in the laws of the United States, this or any other state;
(3) The applicant conforms to all requirements of applicable Zoning, Building and Fire Prevention Codes; and
(4) The applicant or person, corporation, partnership, association or other entity having a legal or beneficial ownership interest in the applicant has not, for the five-year period preceding the application, had a previously issued license for engaging in any sexually oriented business that has been suspended or revoked anywhere.
(Ord. passed 11-26-2002, § 116.04; Ord. 2021-Z-19, passed 6-22-2021)
§ 155.179 FEES.
(A) Every application for a sexually oriented businesses license, whether for a new license or for renewal of an existing license, shall be accompanied by a nonrefundable application and investigation fee as enumerated in the consolidated Fee Schedule.
(B) Sexually oriented businesses shall be required to pay all applicable businesses and privilege license fees.
(C) The first time fee for the business license will amount $1,000. When the time comes to renew the business license annually. the fee will be $500. This is in addition to any other inspection, privilege license and/or any other associated fees.
(Ord. passed 11-26-2002, § 116.06)
§ 155.180 INSPECTION OF A SEXUALLY ORIENTED BUSINESS.
An applicant or licensee shall permit representatives of City Police Department, Fire Department, Planning and Development Department, other city departments or agencies, or the County Health Department to inspect the premises of any sexually oriented business for the purpose of ensuring compliance with the law, at any time it is occupied or open for business. Failure or refusal by any person to permit a lawful inspection of the premises during regular business hours shall be punishable in accordance with the city code and in addition may result in the revocation of the privilege license.
(Ord. passed 11-26-2002, § 116.07)
§ 155.181 DENIAL OR REVOCATION OF LICENSE.
(A) Before the City Council revokes a license issued pursuant to this subchapter, or if the City Council determines reasonable grounds exist to deny an application for a license pursuant to this subchapter, City Council shall cause a written notice to be sent by certified mail to the licensee or applicant affected, at the address stated in the license or application. The notice shall advise the affected party of a right to appear before the City Council, with or without legal counsel, at a stated time and place for the purpose of presenting any evidence relevant to such revocation or denial and for the purpose of hearing all evidence submitted and examining or cross-examining any person providing such evidence.
(B) A license issued pursuant to this section shall be revoked by action of the City Council if the City Council determines that:
(1) The licensee has violated any provision of this subchapter;
(2) The licensee, or the legal or beneficial owner of any interest in the licensee, is convicted of any felony, prostitution or any violation of any law relative to prostitution, crime involving sexual misconduct, as codified in the laws of the United States, this or any other state, including, but not limited to, convictions of violations of any of the offenses enumerated in G.S. Ch. 14, Articles 26, 26A and 27, or the same offenses as codified in the laws of any other state;
(3) Any employee or contract personnel of the licensee is convicted of any felony, prostitution or any violation of any law relative to prostitution, crime involving sexual misconduct, or any offense against public morality and decency as codified in the laws of the United States, this or any other state, including, but not limited to, convictions of violations of any of the offenses enumerated in G.S. Ch. 14, Articles 26, 26A and 27, or the same offenses as codified in the laws of any other state, which arises out of, or in the course of the business of the licensee;
(4) The licensee has knowingly, willingly or intentionally operated a sexually oriented business during a period of time when the licensee’s license was suspended for any reason;
(5) The licensee has knowingly, willingly or intentionally allowed prostitution on the premises; or
(6) The licensee has knowingly, willingly or intentionally violated state ABC laws.
(B) A license issued pursuant to this subchapter is immediately terminated and of no force and effect if the licensee moves or ceases operating a sexually oriented business at the location stated in the application for license pursuant to this section. For the purposes of this subchapter, indicators of the cessation shall include, but not be limited to:
(1) No city water; or
(2) No electrical service has been legally provided and consumed for the use in question for a period of three consecutive months.
(C) When the city revokes a license, the revocation shall continue for one year and the licensee shall not be issued a sexually oriented business license for one year from the date the revocation became effective. If, subsequent to revocation, the city finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective.
(D) After denial of an application, or denial of a renewal of an application or revocation of any license, and all administrative measures have been exhausted, the applicant or licensee may seek immediate judicial review of such Council action in any court of competent jurisdiction. The administrative action shall be promptly reviewed by the court.
(Ord. passed 11-26-2002, § 116.08)
§ 155.182 LOCATION OF A SEXUALLY ORIENTED BUSINESS.
(A) As specified in the city zoning regulations, a sexually oriented business may not:
(1) Locate within 1,000 feet in any direction from a residential zoning district;
(2) Locate within 1,000 feet in any direction from a building in which a sexually oriented business is located;
(3) Locate within 1,000 feet in any direction from a building in which a church is located;
(4) Locate within 1,000 feet in any direction from a building in which a library, school (public and/or private; facility, administrative buildings and/or related facilities) or a state licensed child day care center is located; and
(5) Locate within 1,000 feet in any direction from any lot or parcel on which a public playground, public swimming pool, water and/or water access or public park is located.
(B) Measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the building or structure used as the part of the premises where a sexually oriented business is conducted to the nearest portion of a building or structure of a use listed above.
(C) Sexually oriented businesses will only be located on the second floor of the building the sexually oriented business occupies.
(D) No sexually oriented business shall be located in a building or on a premises where alcohol is consumed or sold for on premises consumption.
(Ord. passed 11-26-2002, § 116.09; Ord. 2021-Z-19, passed 6-22-2021)
§ 155.183 POSTING OF LICENSE.
Every person, corporation, partnership or association licensed hereof shall display such license in a prominent place.
(Ord. passed 11-26-2002, § 116.09)
§ 155.184 HOURS OF OPERATION.
(A) No sexually oriented business shall be open for business before 8:00 a.m. or after 2:00 a.m. daily, local time.
(B) No business, nor any owner, agent or employee, licensed under city code of ordinances, shall admit customers or prospective customers, or remain open for business, or allow, permit or condone any customer or patron upon the premises of a sexually oriented business before 8:00 a.m. or after 2:00 a.m. daily, local time.
(Ord. passed 11-26-2002, § 116.10)
§ 155.185 PATRONAGE OF A SEXUALLY ORIENTED BUSINESS BY MINORS AND EMPLOYMENT OF MINORS.
(A) No business, nor any owner, agent or employee, licensed under this subchapter shall allow, nor its owner, agent or employee, permit or condone, the patronage of any person under the age of 18 years upon the licensed premises. A violation of this division (A) shall be grounds for revocation of the sexually oriented business license.
(B) No business, corporation, partnership, association or other entity licensed pursuant to this subchapter shall employ any person under the age of 18 years. A violation of this division (B) shall be grounds for revocation of any license issued to such violator pursuant to this subchapter.
(Ord. passed 11-26-2002, § 116.11) Penalty, see § 155.999
§ 155.186 REGULATIONS PERTAINING TO SEXUALLY ORIENTED BUSINESSES.
(A) A person who operates, or causes to be operated, a sexually oriented business which exhibits on the premises a film, video cassette, live entertainment, sells adult oriented merchandise including books, magazines, novelty items, computer software, videos or shows other video reproductions which depicts specified sexual activities shall comply with the following requirements.
(1) Upon application for a sexually oriented business license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager’s stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager’s station may not exceed 32 square feet of floor area. The diagram shall also designate the place in which the business license will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer’s or architect’s blueprint shall be required; however, each diagram should be oriented to the north or to some designated street and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal inches.
(2) No alteration in the configuration of a manager’s station may be made without prior approval of the Planning and Development Director, or his or her designee.
(3) It is the duty of the owners and operator of the premises to ensure that at least one employee is on duty and situated in each manager’s station at all times when a patron is inside the premises to ensure that no illegal activity is taking place within the establishment.
(4) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager’s station of the premises to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction or surveillance equipment, books or any items offered for sale. If the premises has two or more manager’s stations, then the interior of the premises shall be configured in such a manner that there is an unobstructive view of the entire area of the premises to which any patron is permitted access for any purpose from at least one of the manager’s stations, excluding restrooms. The view required in this division (A)(4) shall be by direct line of sight from the manager’s station.
(5) It shall be the duty of the owner(s) and operator(s), and it shall be the duty of any agent(s) and employee(s) present in the premises, to ensure that the view area specified in division (A)(4) above remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area of the premises that has been designated as off limits to patrons.
(6) Sexually oriented businesses shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access. It shall be the duty of the owners and operator, and it shall be the duty of any agents and employees present in the premises, to ensure that this illumination is maintained at all times when any patron is present within the premises.
(7) Adult motion picture theaters, adult mini motion picture theaters and adult theaters shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access. It shall be the duty of the owners and operator, and it shall be the duty of any agents and employees present in the premises, to ensure that this illumination is maintained at all times when any patron is present within the premises.
(8) Adult motion picture theaters and adult theaters shall be in an enclosed building with no less than 100 fixed seats. No private viewing rooms or semi-private booths are allowed.
(9) An adult mini motion picture theater shall not allow more than one person in a viewing room at any time.
(10) No owner or operator shall allow openings of any kind to exist between viewing rooms within an adult mini motion picture theater.
(11) The owner or operator of an adult mini motion picture theater shall, during each business day, regularly inspect the walls between the viewing rooms to determine if any openings or holes exist.
(12) The owner or operator of an adult mini motion picture theater shall cause all floor coverings in viewing rooms to be nonporous, easily cleanable surfaces, with no rugs or carpeting.
(13) The owner or operator of an adult mini motion picture theater shall cause all wall and ceiling surfaces in viewing rooms to be constructed of, or permanently covered by, nonporous, easily cleanable material.
(B) A person having a duty under divisions (A)(1) through (A)(13) above is in violation of this subchapter if he or she knowingly, willfully, or intentionally fails to fulfill that duty.
(Ord. passed 11-26-2002, § 116.12) Penalty, see § 155.999
§ 155.187 PROHIBITED CONDUCT ON PREMISES OF SEXUALLY ORIENTED BUSINESSES.
(A) It shall be a violation of this subchapter for any person in a sexually oriented business to appear in a state of full nudity or to depict specified sexual activities.
(B) No owner, operator, manager, employee, entertainer or contract personnel, nor any customer or patron, shall appear bottomless or in a state of full nudity while on the premises of a sexually oriented business.
(C) No owner, operator, manager, employee, entertainer or contract personnel, nor any customer or patron, shall perform any specified sexual activities as defined in this subchapter, wear or use any device or covering exposed to view which stimulates or simulates any specified anatomical area, use artificial devices or inanimate objects to perform or depict any of the specified sexual activities, as defined in this subchapter, or participate in any act of prostitution while on the premises of a sexually oriented business.
(D) No owner, operator, manager, employee, entertainer or contract personnel, nor any customer or patron, shall knowingly touch, fondle or caress any specified anatomical area of another person, knowingly permit another person to touch, fondle or caress any specified anatomical area of his or hers, whether such specified anatomical areas are clothed, unclothed, covered or exposed, or sit on or in or otherwise occupy the lap of anyone while on the premises of a sexually oriented business.
(E) No owner, operator, manager, employee, entertainer or contract personnel shall knowingly or intentionally appear in a semi-nude condition unless the person, while semi-nude, is at least ten feet from any patron or customer and on a stage that is at least two feet from the floor.
(F) No employee shall solicit any pay or gratuity from any patron or customer while said employee is in a state of semi-nudity while on the premises of a sexually oriented business.
(G) No private dance, viewing, projection or meeting areas shall be allowed within a sexually oriented business.
(Ord. passed 11-26-2002, § 116.13) Penalty, see § 155.999
§ 155.188 REGULATIONS PERTAINING TO THE EXTERIOR PORTIONS OF SEXUALLY ORIENTED BUSINESSES.
It shall be unlawful for an owner or operator of a sexually oriented business to allow the merchandise or activities of the establishment to be visible from any point outside the establishment.
(Ord. passed 11-26-2002, § 116.14) Penalty, see § 155.999