Appendix 526. Adult entertainment establishments.
526.1 Purpose; Findings and Rationale; Nonconforming Adult Entertainment Establishments.
(A)
Purpose. It is a purpose of this ordinance to regulate adult entertainment establishments in order to promote the health, safety, and general welfare of the citizens of the county, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of adult entertainment establishments within the county. 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.
(B)
Findings and rationale. Based on evidence of the adverse secondary effects of adult uses presented in hearings and in reports made available to the county council, and on findings, interpretations, and narrowing constructions incorporated in the cases of City of Littleton v. Z.J. Gifts D-4, L.L.C. , 541 U.S. 774 (2004); City of Los Angeles v. Alameda Books, Inc. , 535 U.S. 425 (2002); 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 , 427 U.S. 50 (1976); Barnes v. Glen Theatre, Inc. , 501 U.S. 560 (1991); California v. LaRue , 409 U.S. 109 (1972); N.Y. State Liquor Authority v. Bellanca , 452 U.S. 714 (1981); Sewell v. Georgia , 435 U.S. 982 (1978); FW/PBS, Inc. v. City of Dallas , 493 U.S. 215 (1990); City of Dallas v. Stanglin , 490 U.S. 19 (1989); and
Imaginary Images, Inc. v. Evans , 612 F.3d 736 (4th Cir. 2010); D.G. Restaurant Corp. v. City of Myrtle Beach , 953 F.2d 140 (4th Cir. 1991); Giovani Carandola, Ltd. v. Fox , 470 F.3d 1074 (4th Cir. 2006); Independence News, Inc. v. City of Charlotte , 568 F.3d 148 (4th Cir. 2009); Steakhouse, Inc. v. City of Raleigh , 166 F.3d 634 (4th Cir. 1999); Hart Bookstores, Inc. v. Edmisten , 612 F.2d 821 (4th Cir. 1979); Wall Distributors, Inc. v. City of Newport News , 782 F.2d 1165 (4th Cir. 1986); Restaurant Row Associates v. Horry County , 516 S.E.2d 442 (1999); Condor, Inc. v. Board of Zoning Appeals , 493 S.E.2d 342 (1997); Rothschild v. Richland County Bd. of Adjustment , 420 S.E.2d 853 (1992); Centaur, Inc. v. Richland County , 392 S.E.2d 165 (1990); and
LLEH, Inc. v. Wichita County , 289 F.3d 358 (5th Cir. 2002); Ocello v. Koster , 354 S.W.3d 187 (Mo. 2011); 84 Video/Newsstand, Inc. v. Sartini , 2011 WL 3904097 (6th Cir. Sept. 7, 2011); Plaza Group Properties, LLC v. Spencer County Plan Commission , 877 N.E.2d 877 (Ind. Ct. App. 2007); Flanigan's Enters., Inc. v. Fulton County , 596 F.3d 1265 (11th Cir. 2010); East Brooks Books, Inc. v. Shelby County , 588 F.3d 360 (6th Cir. 2009); Entm't Prods., Inc. v. Shelby County , 588 F.3d 372 (6th Cir. 2009); Sensations, Inc. v. City of Grand Rapids , 526 F.3d 291 (6th Cir. 2008); World Wide Video of Washington, Inc. v. City of Spokane , 368 F.3d 1186 (9th Cir. 2004); Ben's Bar, Inc. v. Village of Somerset , 316 F.3d 702 (7th Cir. 2003); Peek-a-Boo Lounge v. Manatee County , 630 F.3d 1346 (11th Cir. 2011); Daytona Grand, Inc. v. City of Daytona Beach , 490 F.3d 860 (11th Cir. 2007); Heideman v. South Salt Lake City , 348 F.3d 1182 (10th Cir. 2003); Williams v. Morgan , 478 F.3d 1316 (11th Cir. 2007); Jacksonville Property Rights Ass'n, Inc. v. City of Jacksonville , 635 F.3d 1266 (11th Cir. 2011); H&A Land Corp. v. City of Kennedale , 480 F.3d 336 (5th Cir. 2007); Hang On, Inc. v. City of Arlington , 65 F.3d 1248 (5th Cir. 1995); Fantasy Ranch, Inc. v. City of Arlington , 459 F.3d 546 (5th Cir. 2006); Illinois One News, Inc. v. City of Marshall , 477 F.3d 461 (7th Cir. 2007); G.M. Enterprises, Inc. v. Town of St. Joseph , 350 F.3d 631 (7th Cir. 2003); Richland Bookmart, Inc. v. Knox County , 555 F.3d 512 (6th Cir. 2009); Bigg Wolf Discount Video Movie Sales, Inc. v. Montgomery County , 256 F. Supp. 2d 385 (D. Md. 2003); Richland Bookmart, Inc. v. Nichols , 137 F.3d 435 (6th Cir. 1998); Spokane Arcade, Inc. v. City of Spokane , 75 F.3d 663 (9th Cir. 1996); DCR, Inc. v. Pierce County , 964 P.2d 380 (Wash. Ct. App. 1998); City of New York v. Hommes , 724 N.E.2d 368 (N.Y. 1999); Taylor v. State , No. 01-01-00505-CR, 2002 WL 1722154 (Tex. App. July 25, 2002); Fantasyland Video, Inc. v. County of San Diego , 505 F.3d 996 (9th Cir. 2007); Gammoh v. City of La Habra , 395 F.3d 1114 (9th Cir. 2005); Z.J. Gifts D-4, L.L.C. v. City of Littleton , Civil Action No. 99-N-1696, Memorandum Decision and Order (D. Colo. March 31, 2001); People ex rel. Deters v. The Lion's Den, Inc. , Case No. 04-CH-26, Modified Permanent Injunction Order (Ill. Fourth Judicial Circuit, Effingham County, July 13, 2005); Reliable Consultants, Inc. v. City of Kennedale , No. 4:05-CV-166-A, Findings of Fact and Conclusions of Law (N.D. Tex. May 26, 2005);
and based upon reports concerning secondary effects occurring in and around adult entertainment establishments, including, but not limited to, "Correlates of Current Transactional Sex among a Sample of Female Exotic Dancers in Baltimore, MD," Journal of Urban Health (2011); "Does the Presence of Sexually-oriented Businesses Relate to Increased Levels of Crime?" Crime & Delinquency (2012) (Louisville, KY); Metropolis, Illinois—2011-12; Manatee County, Florida—2007; Hillsborough County, Florida—2006; Clarksville, Indiana—2009; El Paso, Texas—2008; Memphis, Tennessee—2006; New Albany, Indiana—2009; Louisville, Kentucky—2004; Fulton County, GA—2001; Chattanooga, Tennessee—1999-2003; Jackson County, Missouri—2008; Ft. Worth, Texas—2004; Kennedale, Texas—2005; Greensboro, North Carolina—2003; Dallas, Texas—1997; Houston, Texas—1997, 1983; Phoenix, Arizona—1995-98, 1979; Tucson, Arizona—1990; Spokane, Washington—2001; St. Cloud, Minnesota—1994; Austin, Texas—1986; Indianapolis, Indiana—1984; Garden Grove, California—1991; Los Angeles, California—1977; Whittier, California—1978; Oklahoma City, Oklahoma—1986; New York, New York Times Square—1994; the Report of the Attorney General's Working Group On The Regulation Of Sexually-oriented Businesses, (June 6, 1989, State of Minnesota); Dallas, Texas—2007; "Rural Hotspots: The Case of Adult Businesses," 19 Criminal Justice Policy Review 153 (2008); "Stripclubs According to Strippers: Exposing Workplace Sexual Violence," by Kelly Holsopple, Program Director, Freedom and Justice Center for Prostitution Resources, Minneapolis, Minnesota; "Sexually-oriented Businesses: An Insider's View," by David Sherman, presented to the Michigan House Committee on Ethics and Constitutional Law, Jan. 12, 2000; Sex Store Statistics and Articles; and Law Enforcement and Investigator Affidavits (Forest Park, GA; Sandy Springs, GA; and Horry County, SC),
the county council finds:
(1)
Adult entertainment 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, 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. Alcohol consumption impairs judgment and lowers inhibitions, thereby increasing the risk of adverse secondary effects.
(2)
Adult entertainment 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 entertainment establishments, to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of adult entertainment establishments in one (1) area.
(3)
Each of the foregoing negative secondary effects constitutes a harm which the county has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the county's rationale for this ordinance, exists independent of any comparative analysis between sexually-oriented and non-sexually-oriented businesses. Additionally, the county's interest in regulating adult entertainment establishments extends to preventing future secondary effects of either current or future adult entertainment establishments that may locate in the county. The county finds that the cases and documentation relied on in this ordinance are reasonably believed to be relevant to said secondary effects.
The county hereby adopts and incorporates herein its stated findings and legislative record related to the adverse secondary effects of adult entertainment establishments, including the judicial opinions and reports related to such secondary effects.
526.2 Definitions.
Adult bookstore or adult video store means a commercial establishment which, as one (1) of its principal business activities, offers for sale or rental for any form of consideration any one (1) 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 (1) or more of the following criteria:
(a)
At least thirty-five (35) percent of the establishment's displayed merchandise consists of said items;
(b)
At least thirty-five (35) percent of the retail value (defined as the price charged to customers) of the establishment's displayed merchandise consists of said items;
(c)
At least thirty-five (35) percent of the establishment's revenues derive from the sale or rental, for any form of consideration, of said items;
(d)
The establishment maintains at least thirty-five (35) percent 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);
(e)
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);
(f)
The establishment regularly offers for sale or rental at least two thousand (2,000) of said items; or
(g)
The establishment maintains an "adult arcade," which means 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 regularly maintained to show images to five (5) or fewer persons per machine at any one (1) time, and where the images so displayed are characterized by their emphasis upon matter exhibiting "specified sexual activities" or "specified anatomical areas."
" Adult cabaret " means a nightclub, bar, juice bar, restaurant, bottle club, or similar commercial establishment that regularly features live conduct characterized by semi-nudity. No establishment shall avoid classification as an adult cabaret by offering or featuring nudity.
" Adult entertainment establishment " means an "adult bookstore or adult video store," an "adult cabaret," an "adult motion picture theater," a "semi-nude model studio," or a "sex paraphernalia store."
" Adult motion picture theater " means a commercial establishment where films, motion pictures, videocassettes, slides, or similar photographic reproductions which are characterized by their emphasis upon the display of "specified sexual activities" or "specified anatomical areas" are regularly shown to more than five (5) persons for any form of consideration.
" Characterized by " means describing the essential character or quality of an item. As applied in this article, no business shall be classified as an adult entertainment establishment by virtue of showing, selling, or renting materials rated NC-17 or R by the Motion Picture Association of America.
" Floor space " means the floor area inside an establishment that is visible or accessible to patrons for any reason, excluding restrooms.
" Nudity " means 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.
" Regional shopping mall (enclosed) " means 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 (40) acres in size and flanked by two (2) 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.
" Regularly " means the consistent and repeated doing of an act on an ongoing basis.
" Semi-nude or semi-nudity " means 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.
" Semi-nude model studio " means a place where persons regularly appear in a state of semi-nudity for money or any form of consideration in order to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons. This definition does not apply to any place where persons appearing in a state of semi-nudity did so in a class operated:
(a)
By a college, junior college, or university supported entirely or partly by taxation;
(b)
By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or
(c)
In a structure:
(1)
Which has no sign visible from the exterior of the structure and no other advertising that indicates a semi-nude person is available for viewing; and
(2)
Where, in order to participate in a class a student must enroll at least three (3) days in advance of the class.
" Sexual device " means any three-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.
" Sex paraphernalia store " means a commercial establishment that regularly features sexual devices and regularly advertises or holds itself out, in any medium, as an establishment that caters to adult sexual interests. This definition shall not be construed to include any:
(a)
Pharmacy, drug store, medical clinic, any establishment primarily dedicated to providing medical or healthcare products or services; or
(b)
Any establishment located within an enclosed regional shopping mall.
" Specified anatomical areas " means and includes:
(a)
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
(b)
Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
" Specified sexual activity " means any of the following:
(a)
Intercourse, oral copulation, masturbation or sodomy; or
(b)
Excretory functions as a part of or in connection with any of the activities described in (a) above.
526.3 Location Provisions. Adult entertainment establishments shall be permitted only in the following zones: Highway Commercial, Limited Industrial, and Heavy Industrial, provided that:
(A)
It shall be unlawful to establish, operate, or cause to be operated an adult entertainment establishment within one thousand five hundred (1,500) feet of a residential zoning district (e.g., SF 40, SF 20, SF 14.5, SF 10, SF 8.5, SF 7, SF 6 and their corresponding MSF classifications; and GR, GRn, MRD, RR, RC and MHP). Measurements for this subparagraph (A) shall be made in a straight line without regard to intervening structures or objects, from the closest part of the structure containing the adult entertainment establishment to the closest point on the boundary line of the residential zoning district.
(B)
It shall be unlawful to establish, operate, or cause to be operated an adult entertainment establishment within one thousand five hundred (1,500) feet of a residential structure. For the purpose of this subparagraph, a residential structure is hereby defined as a single-family house or mobile home, a townhouse, a duplex or a multi-family structure and specifically excludes structures that are accessory uses to other activities, such as upper-story apartments in a commercial zone. Measurements for this subparagraph (B) shall be made in a straight line without regard to intervening structures or objects, from the closest part of the structure containing the adult entertainment establishment to the closest point on the property line of the parcel containing the residential structure.
(C)
It shall be unlawful to establish, operate, or cause to be operated an adult entertainment establishment within one thousand five hundred (1,500) feet of any house of worship, day care center, public or private elementary or secondary education school, public park, public library, cemetery, or any motion picture establishment which regularly shows G or PG rated movies to the general public. Measurements for this subparagraph (C) shall be made in a straight line without regard to intervening structures or objects, from the closest part of the structure containing the adult entertainment establishment to the closest point on the property line of the parcel containing the house of worship, day care center, school, park, library, cemetery, or motion picture establishment.
(D)
It shall be unlawful to establish, operate, or cause to be operated an adult entertainment establishment within seven hundred fifty (750) feet of any other adult entertainment establishment. Measurements for this subparagraph (D) shall be made in a straight line without regard to intervening structures or objects, from the closest parts of the structures containing the two (2) adult entertainment establishments.
(E)
An adult entertainment establishment lawfully operating in a lawful location is not rendered unlawful by the subsequent location of any use or zoning district listed in subparagraphs (A)—(D) that would otherwise render its location unlawful for an adult entertainment establishment. This provision applies only to the particular adult entertainment establishment that was operating in a particular lawful location when the subsequent disqualifying use or zoning district arrived, and only for so long as that particular adult entertainment establishment continues to lawfully operate in that location.
(Ord. No. 30-13, § 1, 9-3-13)