Williston City Zoning Code
SECTION 25
N Adult entertainment. 1
1.
Purpose and intent.
a.
Purpose. It is the purpose of Subsection N to regulate adult entertainment establishments, or otherwise referred to herein as adult establishment or adult use, in order to promote the health, safety, and general welfare of the citizens of the City of Williston, and to establish reasonable and uniform regulations to prevent the negative secondary effects and concentrations of adult entertainment establishments within the City of Williston.
(i)
This ordinance does not have the purpose, intent or effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials.
(ii)
Further, it is not the purpose, intent, or effect of this ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment of the United States Constitution, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended markets.
(iii)
It is not the intent or effect of this ordinance to condone or legitimize the distribution of obscene materials.
b.
Findings. Whereas, based on evidence concerning adverse secondary effects of adult entertainment, adult use, or adult entertainment establishments, local police reports made available to the board have generated the following statistics concerning the secondary effects:
(i)
Between mid-2013 and June 2015 there were over 200 reported incidents at the 2 strip clubs located within City limits that the Williston Police Department responded to.
(ii)
The following is a summary of the types of calls and incidents that the Williston Police Department responded to:
(a)
Two homicides; one murder and one death from grave bodily injury resulting from an assault. In September 2014, there was a fight between overly intoxicated individuals outside one of the strip clubs. As a result of the altercation one individual had a serious head injury. The head injury resulted in permanent brain damage and subsequent death.
(b)
Forty-two fights/assaults, almost all involved intoxicated individuals.
(c)
Eight DUIs/Disorderly Conduct.
(d)
Thirty-six unruly and intoxicated patrons.
(e)
Three hit and runs.
(f)
Ten theft of property calls, including two stolen vehicles.
(g)
Six welfare checks.
(h)
Fifteen traffic violations.
(i)
Two junk ordinance violations.
(j)
Multiple dates of minors being admitted to the establishments while under the age of 18 and/or being served with alcohol while under the age of 21.
(iii)
Additionally, based on evidence concerning the adverse secondary effects of adult uses presented in hearings and in studies which were also made available to the Board, and on findings incorporated in the cases of City of Erie v. Pap's A.M., 529 U.S. 277 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 426 U.S. 50 (1976); FW/PBS, Inc. V. City of Dallas, 493 U.S. 215 (1990); Barnes v. Glen Theatre, Inc., 501 US. 560 (1991); Thomas v. Chicago Park District, 122 S. Ct. 775 (2002); California v. LaRue, 409 U.S. 109 (1972); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); ILQ Investments Inc. v. City of Rochester, 25 F. 3d 1413 (8th Cir. 2003); Holmberg v. City of Rochester, 12F. 3d 140 (8th Cir. 1993); McCrothers Corp. v. Mandan, 2007 ND 28, 728 N.E. 2d 124 (2007); Big Dipper Entertainment, LLC v. City of Warren, 641 F.3d 715 (6th Cir. 2011); Big Dipper Entertainment, LLC v. City of Warren, 658 F. Supp. 2d 831 (E.D. Mich. 2009); County of Morrison v. Wheeler, 722 N.W. 2d 329 (MN 2006); City of Chicago v. Poo Bah Enterprises, Inc., 865 N.E. 2d 390 (III. 2006); and other cases; and reports of secondary effects occurring in and around adult entertainment establishments, including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma County, Oklahoma; Cleveland, Ohio; Dallas, Texas; Tucson, Arizona; St. Croix County, Wisconsin; Bellevue, Washington; Newport News, Virginia; New York, New York; Phoenix, Arizona; Mandan, North Dakota; and from summaries of several of the foregoing secondary effects report; the Board finds:
(a)
The nature of adult establishments is such that they are recognized as having adverse secondary characteristics, particularly when they are accessible to minors and located near residential property or related residential uses, such as schools, day care centers, libraries, churches or parks. A 2008 Texas study revealed that "91% of surveyed property appraisers stated that the existence of a strip club or sexually oriented retail store within 500 feet of a single-family home directly impaired the value of those residences." Report to the TX Legislature: "Sexually Oriented Businesses and Human Trafficking: Associations, Challenges and Approaches," Off. Att. Gen., p. 2 (Mar. 2013). Further, 71% of the surveyors found that an adult establishment's presence within a 1/2 mile distance of a residential property had a negative impact on market value.
(b)
The concentration of adult establishments has an adverse effect upon the use and enjoyment of areas adjacent to such establishments.
(c)
The nature of adult establishments requires that they not be allowed within certain zoning districts, or within minimum distances from each other or residential or related residential uses.
(d)
Regulation of adult establishments is necessary to ensure that any adverse secondary effects does not contribute to or enhance criminal activity in the area of residential uses or contribute to the blighting or downgrading of the surrounding property and lessening of its value.
(e)
The Planning and Zoning Commission, following appropriate notice, held a public hearing on the ordinance from which Subsection N is derived, and has considered testimony, written comments, and material from the public by and through said hearing, and has recommended approval of the zoning changes for adult uses.
(f)
Subsection N is consistent with the City of Williston Comprehensive Plan, purposes, goals and policies in preserving a vibrant downtown which enhances both community life and the economy through ensuring it is a place to work, live, play and shop. Further, when adopting the Comprehensive Plan the community valued personal safety and a low crime rate as 2 characteristics in preserving.
2.
Construction and definition. The following words, terms and phrases, when used in Subsection N., shall have the meanings ascribed to them in this section, except where the context indicates a different meaning:
a.
ADULT CABARET ENTERTAINMENT - Means:
(i)
Any exhibition, performance, or dance of any type conducted in any premises where such exhibition, performance or dance involves a person who performs in such clothing or sheds clothing to a point where the area below the top to the bottom of the areola of a female breast or any portion of public area, anus, buttocks, vulva or genitals are covered by opaque material, or wearing any device or covering exposed to view which simulates the appearance of any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva, or genitals, or human male genitals in a discernibly turgid state, even if completely and opaquely covered;
(ii)
Any exhibition, performance or dance which includes any of the following:
(a)
The performance of acts, or simulated acts, of sexual intercourse;
(b)
Masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law;
(c)
The actual or simulated touching, caressing, or fondling of the breast, buttocks, anus or genitals;
(d)
The actual or physical displaying of the pubic hair, anus, vulva or genitals, or the nipples of the female; or
(e)
Appearances, entertainment, or performances of any type consisting of or containing any nude performer, or topless female dancer; or
(iii)
Any exhibition, performance, or dance which is intended to sexually stimulate any member of the public and which is conducted on a regular basis or as a substantial part of the premises activity. This includes but is not limited to, any such exhibition, performance, or dance performed for, arranged with, or engaged in with, fewer than all members of the public on the premises at that time, with separate consideration paid, either directly or indirectly, for such performance, exhibition, or dance and which is commonly referred to as table dancing, couch dancing, taxi dancing, lap dancing, private dancing, or straddle dancing.
b.
ADULT ESTABLISHMENTS OR ADULT USES, WHICH ALSO MAY BE KNOWN AS OR REFERRED TO AS ADULT ENTERTAINMENT ESTABLISHMENTS - Means adult arcades, adult bookstores, adult cabarets, adult cabaret entertainment, adult companionship establishments, adult motion picture theaters, adult motion picture rental, adult mini-motion picture theaters, adult massage parlors, adult bathhouse/steam room/sauna facilities, adult companionship establishments, adult rap/conservation parlors, adult health/sport clubs, adult novelty businesses, adult motion picture arcades, adult modeling studios, adult hotels/motels, adult body painting studios, 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.
c.
ADULT USE — ARCADE - Means any place to which the public is permitted or invited, but from which minors are excluded by reason of age, 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 one person per machine, located within individual viewing areas, cubicles or booths and where the images so displayed are distinguished or characterized by their emphasis upon matters exhibiting specified sexually activities or specified anatomical areas.
d.
ADULT USE — BODY PAINTING STUDIO - Means 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.
e.
ADULT USE — BOOKSTORE - Means a building or portion of a building used for the barter, rental or sale of items of printed matter, including publications, books, magazines, and other periodicals, pictures, slides, records, audio tape, CD, DVD, videotape or motion picture film, if such building or portion of a building is not open to the public generally but only to one or more classes of the public, excluding any minor by reason of age or if such items are distinguished or characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas.
f.
ADULT USE — CABARET - Means a building or a portion of a building used for providing dancing or other live entertainment or activity as defined in adult cabaret entertainment, if such building or portion of a building excludes minors by virtue of age or if such dancing, activity 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.
g.
ADULT USE — COMPANIONSHIP ESTABLISHMENT - Means a companionship establishment which excludes minors by reason of age, or which provides the service of engaging in or listening to conversation, talk, or discussion between an employee of the establishment and a customer or patron, if such service is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
h.
ADULT USE — HEALTH/SPORT CLUB - Means a health/sport club which excludes minors by reason of age, or if such club is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
i.
ADULT USE — HOTEL/MOTEL - Means an adult hotel or motel from which minors are specifically excluded from patronage and wherein material is present which is distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.
j.
ADULT USE — MASSAGE PARLOR, HEALTH CLUB - Means a massage parlor or health club which restricts minors by reason of age, and which provides the services of massage if such service is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
k.
ADULT USE — MINI-MOTION PICTURE THEATER - Means an enclosed building or portion of a building with a capacity of less than 50 persons used for presenting materials or motion pictures, if such building or portion of a building as a prevailing practice excludes minors by virtue of age, or if such materials or motion pictures 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 of the theater.
l.
ADULT USE — MODELING STUDIO - Means 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 or patrons and who engage in specified sexual activities or display specified anatomical areas while being observed, painted upon, sketched, drawn, sculptured, photographed, or otherwise depicted by such customers or patrons.
m.
ADULT USE — MOTION PICTURE ARCADE - Means 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 motor picture machines, projectors or other image-producing devised are maintained to show images to five or fewer persons per machine at any one time, if such place as a prevailing practice excludes minors by virtue of age or if the images so displayed are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas.
n.
ADULT USE — MOTION PICTURE THEATER - Means an enclosed building or portion of a building with a capacity of 50 or more persons used for presenting materials or motion pictures, if such building or portion of a building as a prevailing practice excludes minors by virtue of age or if such material or motion pictures are distinguished or characterized by an emphasis on matter depicting, describing or related to specified sexual activities or specified anatomical areas, for observation by patrons of the theater.
o.
ADULT USE — NOVELTY BUSINESS - Means a business which has as a principal activity the sale of devises which stimulate human genitals or devices which are designated for sexual stimulation or the sale of sexually oriented devices.
p.
ADULT USE — SAUNA - Means a sauna which excludes minors by reason of age or which provides a steam bath or heat bathing room used for the purpose of bathing, relaxing, 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.
ADULT USE — STEAM ROOM/BATHHOUSE FACILITY - Means 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 such building or portion of a building restricts minors by reason of age or 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.
r.
MASSAGE - Means the manipulation of a body muscle or tissue by rubbing, stroking, kneading, or tapping by hand or mechanical device.
s.
MASSAGE BUSINESS - Means any establishment or business wherein massage is practiced, including establishments known as health clubs, physical culture studios, massage studios or massage parlors.
t.
NUDE PERFORMER OR NUDE DANCER - Means any person who performs or appears in attire such that any portion of the pubic area, anus, vulva or genitals is exposed to view or not covered with an opaque material.
u.
SEXUALLY ORIENTED DEVICES - Means, without limitation, any artificial or simulate anatomical area or any other device or paraphernalia that is designed in whole or in part for specified sexual activities.
w.
SPECIFIED SEXUAL ACTIVITIES - Means:
(i)
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, piquerism, sapphism, zooerasty.
(ii)
Clearly depicted human genitals in the state of sexual stimulation, arousal or tumescence.
(iii)
Use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation.
(iv)
Fondling or touching of nude human genitals, public region, buttocks or female breast.
(v)
Situations involving a person, any of whom are nude, clad in undergarments or in sexually revealing costumes, and who are engaged in activities involving flagellation, torture, fettering, binding or other physical restraint of any such persons.
(vi)
Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being.
(vii)
Human erection, urination, menstruation, vaginal or anal irrigation.
x.
TOPLESS FEMALE PERFORMER OR TOPLESS FEMALE DANCER - Means any female who performs or appears in attire such that any portion of her breasts below the top of the areola is exposed to view or is not covered with an opaque material.
3.
Adult uses or establishments.
a.
General provisions. Adult uses or establishments shall be subject to the following general provisions:
(i)
Activities classified as obscene are not permitted and are prohibited. In no instance shall the application of or interpretation of Subsection N be construed to allow any activity otherwise prohibited by state law or City ordinance.
(ii)
Adult uses shall be prohibited from locating in any building which is also utilized for residential purposes.
b.
Adult uses or establishments. Adult uses or establishments shall be a permitted use only in the M-2: Heavy Industrial District, subject to the regulations, location and separation criteria as outlined in Subsection N herein and the following:
(i)
Adult uses shall not be located within at least 1,250 radial feet, as measured in a straight line from the closest point of the property line in which the adult use is located, to the property line of:
(a)
A zoning district in which residential uses are specifically listed as a permitted or conditional use;
(b)
A licensed day care center;
(c)
A public or private educational facility, classified as a kindergarten, elementary, junior high, intermediate, or senior high;
(d)
A public library;
(e)
A public park;
(f)
Any church or church/religious related organization; or
(g)
Another adult use.
(ii)
No adult use may be located in the same building or upon the same property as another adult use.
(iii)
No building premises, structure or other facility in which sexually oriented devices, as defined in this chapter, are displayed, or offered for sale shall contain any other kind of adult establishment or adult use.
(iv)
Adult uses must adhere to the following signing regulations:
(v)
Adult establishments which offer the following must restrict from and prohibit access to minors by physical separation of such items from areas of general public access:
(a)
Movie rentals. Display areas shall be restricted from general view and the access of which shall be in clear view and under the control of persons responsible for operation.
(b)
Magazines. Publications classified or qualifying as adult 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 uses. All other adult uses, such as adult use-novelty, shall comply with the intent of this section.
4.
Nonconforming adult uses.
a.
Any adult use lawfully operating prior to the adoption of this ordinance that is in violation of Subsection N.3.b shall be deemed a nonconforming use. The nonconforming use is permitted to continue for a period not to exceed one year, unless sooner terminated for reason or voluntarily discontinued. In no instance shall a nonconforming use be allowed to structurally expand the use on the lot on which it is located when the use became a nonconforming use, or expand the adult use to include another lot on which the adult use was not located when it became nonconforming, or in any way be increased, enlarged, extended or altered, expect that the use may be changed to a conforming use.
b.
If the building in which a temporary nonconforming use is located is destroyed by any means to an extent of greater than 50% of its market value, or if the building in which the temporary nonconforming use is vacant for more than six months, an adult use may not be reestablished.
c.
Any adult establishment which is made nonconforming by Subsection N or which is an existing nonconforming use shall be terminated within the time period provided in Subsection N.4.a above. However, such termination date may be extended upon approval by the Commission of an application filed with the City Administrator/Auditor within three months of the effective date of the ordinance from which this Section 25.N is derived, requesting an extension to such amortization period. The Commission's decision on whether or not to approve an extension and the length of time of such period shall be based upon the applicant clearly demonstrating extreme economic hardship based upon an irreversible financial investment or commitment made prior to the expiration of the time period provided for in Subsection N.4.a above which precludes reasonable alternative uses of the subject property. The applicant must also include with the request for an extension an amortization schedule demonstrating the financial investment and time period being requested.
d.
An adult establishment business lawfully operating as a conforming use is not rendered nonconforming by the location, subsequent to the grant or renewal of an adult entertainment license, of a use listed in Subsection N.2.b within 1,250 feet of the adult establishment. This provision applies only to the renewal of a valid license, and does not apply when an application is made for a license after the applicant's previous license has expired or been revoked.[2]
[2]
Editor's Note: Ord. No. 936 adopted 5-10-2011, Ord. No. 1032 adopted 1-26-2016.
5.
Violations; penalties.
a.
Any person violating any provision of Subsection N is guilty of a Class B Misdemeanor and, upon conviction, is subject to the penalties as prescribed under state law.
b.
Any violation of Subsection N related to adult entertainment, adult uses, or adult entertainment establishments shall be subject to the provisions of Section 26 and any amendments thereto as well as shall be a basis for the suspension or revocation of the certificate of occupancy for the property or building in which the adult use is located. In the event the Planning and Zoning Commission or Board of City Commissioners propose to revoke or suspend a certificate of occupancy, the property owner shall be notified in writing of the basis for such proposed suspension or revocation. The Planning and Zoning Commission shall hold a hearing for the purpose of providing a recommendation to the Board of City Commissioners regarding whether to revoke or suspend the certificate of occupancy, and the hearing shall be within 30 days of the date of the notice. Upon the Planning and Zoning Commission's recommendation the Board of City Commissioners shall hold a hearing for the purpose of determining whether to revoke or suspend the certificate of occupancy, which hearing shall be within 30 days after the Planning and Zoning Commission makes their recommendation. The Board of City Commissioners decision shall be final concerning whether or not to revoke or suspend a certificate of occupancy.
c.
The Board of City Commissioners shall determine whether to revoke or suspend a certificate of occupancy within 30 days after the close of the hearing and shall notify the property owner of its decision within that period.