Legal Notice: Sexually Oriented Businesses

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LEGAL NOTICE -- GILA COUNTY BOARD OF SUPERVISORS

NOTICE IS HEREBY GIVEN that the Gila County Board of Supervisors will hold a public hearing on the following matter on Tuesday, March 16th, 2004, at the time shown, at the Board of Supervisors Hearing Room, located at the Gila County Courthouse, 1400 East Ash Street, Globe, AZ.

Zoning Hearing

103.15

SEXUALLY ORIENTED BUSINESSES

A. FINDINGS; PURPOSE

1. Based on evidence of the adverse secondary effects of adult uses presented in reports made available to the Board of Supervisors as set forth in Resolution # ________ enacting this section, and on findings, interpretations, and narrowing constructions incorporated in the cases described in said Resolution, the Board of Supervisors has made specific findings concerning the adverse secondary effects of sexually oriented businesses and the need for additional requirements for the operation of such businesses.

2. It is the purpose of this section of the Zoning Ordinance to provide for the orderly regulation of sexually oriented businesses by establishing certain minimum standards in order to protect the health, safety, and general welfare of the citizens of Gila County, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the County. The provisions of this section of the Zoning Ordinance 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 section of the Zoning Ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment to the United States Constitution or the corresponding provisions of the Arizona Constitution, 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 section of the Zoning Ordinance to condone or legitimize the distribution of obscene material.

B. DEFINITIONS

For the purpose of this section, the following definitions apply unless the context clearly indicates otherwise.

Adult arcade means any place to which the public is permitted or invited and in which 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 that are characterized by the depiction or description of specific sexual activities or specific anatomical areas to persons in booths or viewing rooms.

Adult bookstore or adult video store or adult novelty store means a commercial establishment that offers for sale or rent or for any form of consideration any one or more of the following:

(a) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, videocassettes, compact discs, video reproductions or slides or other visual representations that depict or describe specific sexual activities or specific anatomical areas; or

(b) Instruments, devices or paraphernalia that are designed for use in connection with specific sexual activities.

Adult cabaret includes any nightclub, bar, restaurant or other similar commercial establishment, whether or not alcoholic beverages are served, that features:

(a) Persons who appear in a state of nudity or who are seminude.

(b) Live performances that are characterized by the exposure of specific anatomical areas or specific sexual activities.

(c) Films, motion pictures, videocassettes, slides or other photographic reproductions that are characterized by the depiction or description of specific sexual activities or specific anatomical areas.

NOTE: Nothing in the definition of "adult cabaret" shall be construed to apply to the presentation, showing, or performance of any play, drama, or ballet in any theater, concert hall, fine arts academy, school, institution of higher education, or other similar establishment as a form of expression of opinion or communication of ideas or information, as differentiated from the promotion or exploitation of nudity for the purpose of advancing the economic welfare of a commercial or business enterprise.

Adult live entertainment establishment means an establishment that features:

(a) Persons who appear in a state of nudity or semi-nudity; or

(b) Live performances that are characterized by the exposure of specific anatomical areas or specific sexual activities.

Adult motel means a hotel, motel or similar commercial establishment that:

(a) Offers accommodations to the public for any form of consideration; 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 advertises the availability of this adult type of photographic reproductions; or

(b) Offers a sleeping room for rent for a period of time that is less than ten hours; or

(c) Allows a tenant or occupant of a sleeping room to sub rent the room for a period of time that is less than ten hours.

Adult motion picture theater means a commercial establishment in which for any form of consideration films, computer simulations, motion pictures, videocassettes, slides or other similar photographic reproductions that are characterized by the depiction or description of specific sexual activities or specific anatomical areas are regularly shown.

NOTE: Nothing in the definition of "adult motion picture theater" shall be construed to apply to the presentation, showing or performance of any play, drama or ballet in any theater, concert hall, fine arts academy, school, institution of higher education or other similar establishment as a form of expression of opinion or communication of ideas or information, as differentiated from the promotion or exploitation of nudity for the purposes of advancing the economic welfare of a commercial or business enterprise.

Adult service means dancing, serving food or beverages, modeling, posing, wrestling, singing, reading, talking, listening or other performances or activities conducted for any consideration in a sexually oriented business by a person who is nude or seminude during all or part of the time that the person is providing the service.

Adult service provider or erotic entertainer means any person who provides an adult service.

Adult theater means a theater, concert hall, auditorium or similar commercial establishment that regularly features persons who appear in a state of nudity or semi-nudity who engage in live performances that are characterized by the exposure of specific anatomical areas or specific sexual activities.

Adult video facility means a commercial establishment where, for any consideration, films, motion pictures, video cassette projections, slides or other visual media characterized by depiction of specific sexual activities or specific anatomical areas are shown in the regular course of business as a principal business purpose of the establishment. Adult Video Facility does not include a theater where all viewing occurs in a common area with seating for fifty or more persons. This definition does include Adult Arcades.

Discernibly turgid state means the state of being visibly swollen, bloated, inflated or distended.

Director means director of Gila County Community Development or the Director's designee.

Dual purpose business means a commercial establishment that devotes at least ten percent (10%) of its interior sales or display space to the sale or rental, for any form of consideration, any one or more of the following:

(a) 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 exhibition or description of specified sexual activities or specific anatomical areas;

(b) Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others; and which does not meet the definition of Adult bookstore, Adult novelty store or Adult video store set forth above. Floor space shall be measured by dividing the floor space where patrons or customers of the establishment are permitted where the primary sales or displays are of materials described above by the total floor space where patrons or customers of the establishment are permitted regardless of the materials.

Employee means a person who works or 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 the person is paid a salary, wage or other compensation by the operator of the business. This 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 nor an attorney, accountant or other person whose primary function is to provide professional advice and assistance to the licensee.

Enterprise means a corporation, association, labor union or other legal entity, as provided in A.R.S. 13-105.

Escort means a person who for consideration agrees or offers to act as a companion, guide or date for another person or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.

Escort agency means a person or business association that furnishes, offers to furnish or advertises the furnishing of escorts as one of its primary business purposes for any fee, tip or other consideration.

Establish or establishment means and includes any of the following:

(a) The opening or commencement of any sexually oriented business as a new business:

(b) The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; or

(c) The addition of any sexually oriented business to any other existing sexually oriented business.

Exotic dancer means a male or female dancer that performs seminude or nude for compensation.

Exotic dance service means any business or person who provides exotic dancers to perform at a private residence, business, or other location (other than an adult cabaret).

Explicit sexual material means any drawing, photograph, film negative, motion picture, figure, object, novelty device, recording, transcription or any book, leaflet, pamphlet, magazine, booklet or other item, the cover or contents of which depicts human genitalia or depicts or verbally describes nudity, sexual activity, sexual conduct, sexual excitement or sadomasochistic abuse in a way which is harmful to minors. Explicit sexual material does not include any depiction or description which, taken in context, possesses serious educational value for minors or which possesses serious literary, artistic, political or scientific value.

Licensee means a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual or individuals listed as an applicant on the application for a sexually oriented business license. In case of an employee, it shall mean the person in whose name the sexually oriented business employee license has been issued.

Massage establishment means an establishment in which a person, firm, association or corporation engages in or permits massage activities, including any method of pressure on, friction against, stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating of external soft part of the body with the hands or with the aid of any mechanical apparatus or electrical apparatus or appliance. This paragraph does not apply to:

(a) Persons authorized by the laws of this state to practice medicine, osteopathy, chiropractic, podiatry, or naturopathy;

(b) Registered nurses, licensed practical nurses or technicians when acting under the supervision of a licensed physician or osteopath;

(c) Persons employed or acting as trainers for any bona fide amateur, semi-professional or athlete or athletic team;

(d) Persons authorized by the laws of this state as barbers or cosmetologists, provided their activity is limited to the head, face, or neck.

Nude model studio means a place where a person who appears seminude, in a state of nudity, or who displays "specific anatomical areas" and is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration. Nude Model Studio shall not include a proprietary school licensed by the State of Arizona or a college, junior college or university supported entirely or in part by public taxation; 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 in a structure:

(a) that has no sign visible from the exterior of the structure and no other advertising that indicates a nude or seminude person is available for viewing; and

(b) where in order to participate in a class a student must enroll at least three days in advance of the class; and

(c) where no more than one nude or seminude model is on the premises at any one time.

Nude, nudity or state of nudity means any of the following:

(a) The appearance of a human anus, genitals or female breast below a point immediately above the top of the areola; or

(b) A state of dress that fails to opaquely cover a human anus, genitals or female breast below a point immediately above the top of the areola or the showing of the covered male genitals in a discernibly turgid state.

Operate or cause to operate means to cause to function or to put or keep in a state of doing business. Operator means any persons on the premises of a sexually oriented business who is authorized to exercise operational control of the business or who causes to function or who puts or keeps in operation the business. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is an owner, part owner, or licensee of the business.

Patron means a person invited or permitted to enter and remain upon the premises of a sexually oriented business, whether or not for consideration.

Person means an individual, firm, organization, business trust, limited liability company, joint venture company, proprietorship, partnership, corporation, association, or other legal entity.

Public display means the placing of material on or in a billboard, viewing screen, theater marquee, newsstand, display rack, vending machine, window, showcase, display case or similar place so that material within the definition of explicit sexual material is easily visible or readily accessible from a public thoroughfare, from the property of others, or in any place where minors are invited as part of the general public.

Regularly features or regularly shown means a consistent or substantial course of conduct, such that the films or performances exhibited constitute a substantial portion of the films or performances offered as a part of the ongoing business.

Seminude or semi-nudity or in a seminude state means a state of dress in which opaque clothing covers no more than the genitals, pubic region and female breast below a point immediately above the top of the areola, as well as portions of the body that are covered by supporting straps or devices.

Sexual encounter center means a business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration the following:

(a) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or

(b) Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or is seminude.

Sexually oriented business means an adult arcade, adult bookstore, adult video store, adult novelty store, adult cabaret, adult live entertainment establishment, adult motel, adult motion picture theater, adult theater, adult video facility, dual purpose business, escort agency, exotic dance service, massage establishment that offers or provides adult service, nude model studio, sexual encounter center or any business or facility that offers or provides an adult service.

NOTE: A commercial establishment may have other business purposes that do not meet the definition of a Sexually Oriented Business but such other business purposes will not serve to exempt such commercial establishment from being categorized as a Sexually Oriented Business so long as one of its principal business purposes qualifies as such.

Specific anatomical areas means any of the following:

(a) A human anus, genitals, pubic region or a female breast below a point immediately above the top of the areola that is less than completely and opaquely covered.

(b) Male genitals in a discernibly turgid state even if completely and opaquely covered.

Specific sexual activities means and includes any of the following:

(a) Fondling or other erotic touching of the human genitals, pubic region, buttocks, anus or female breast.

(b) Sex acts, normal or perverted, actual or simulated, including acts of human masturbation, sexual intercourse, oral copulation or sodomy.

(c) Urinary or excretory functions as part of or in connection with any of the activities set forth in (a) or (b) above.

Video includes image reproduction and display by videotape or any other medium, such as digital video disk or compact disk, that produces moving or still images on a screen, wall, or other similar display.

Viewing room means the room, booth, or area where a patron of a sexually oriented business would ordinarily be positioned while watching a film, videocassette, or other video or visual production or reproduction.

C. STIPULATIONS AND PROVISIONS


1. Classifications

Sexually Oriented Businesses shall be classified as follows:

a.) Adult arcade

b.) Adult bookstore, Adult video store, or Adult novelty store

c.) Adult cabaret

d.) Adult live entertainment establishment

e.) Adult motel

f.) Adult motion picture theater

g.) Adult theater

h.) Adult video facility

i.) Dual purpose business

j.) Escort agency

k.) Exotic dance service

l.) Massage establishment that offers or provides adult service

m.) Nude model studio

n.) Sexual encounter center

o.) Any business, facility or person that offers or provides adult service.

2. Enclosure

A sexually oriented business shall be operated solely and totally within an enclosed building or structure in a manner that does not allow any activities occurring within that enclosure to be viewed from outside that enclosure.

3. Number of Sexually Oriented Businesses

There shall be no more than one sexually oriented business and no more than one classification of sexually oriented business per lot, parcel or tract or building.

4. Location

A sexually oriented business shall only be allowed in the C-3 (Commercial Three) District.

5. Spacing

A sexually oriented business shall not be located or operated within 2640 feet (1/2 mile) of the following:

a.) Another sexually oriented business; or

b.) A building that contains another sexually oriented business; or

c.) Any daycare center, preschool, kindergarten, elementary or secondary school whether public, private or parochial; or

d.) A public or private park or playground; or

e.) A church, synagogue, temple, seminary, convent, or monastery, or

f.) Any residential zoning district, a single or multiple family dwelling or any established residential area whether zoned residentially or not; or

g.) A museum, art gallery, library or community building whether public or private; or

h.) Any family oriented business including but not limited to restaurants, amusement parks, recreational facilities, movie theaters, semipublic and public pools, roller or ice skating rinks, batting cages, go-kart tracks, miniature golf courses, sports courts or fields, or any facility, commercial establishment, store, or business, whether public or private, that provides entertainment or services to persons under 18 years of age.

6. Method of Measurement

The distance requirement set by this section of the Zoning Ordinance shall be measured in a straight line without regard for intervening structures or objects, from the lot line of the property occupied by the sexually oriented business to the lot line of the property of the business or facility being measured to. In the case of residential zoning districts, the measurement shall be taken from the lot line of the property occupied by the sexually oriented business to the closest boundary line of that district. In the case of established residential areas, the measurement shall be taken from the lot line of the property occupied by the sexually oriented business to the closest property line of the property upon which a residence (single or multiple family dwelling) or residential accessory structure sits.

7. Hours of Operation

A sexually oriented business shall not be open or remain open for business at any time between the hours of 10:00 p.m. to 10:00 a.m. on Monday through Saturday and must remain closed on Sundays. However, a sexually oriented business which has obtained a license from the State of Arizona to sell alcoholic beverages may remain open to sell alcoholic beverages under the terms of that license but may not operate any sexually oriented business during the times prohibited.

8. Signage

It is prohibited for explicit sexual material to be put on public display for the purpose of advertising, describing or to assist in locating a sexually oriented business.

9. Preexisting and Nonconforming Sexually Oriented Businesses

a.) The provisions of this section of the Zoning Ordinance shall apply to the activities of all sexually oriented businesses and sexually oriented business employees described herein, whether such businesses or activities were established or commenced before, on, or after the effective date of this section of the Zoning Ordinance subject to the protection provided by Arizona State Statutes and the Constitution of the State of Arizona.

b.) On the effective date of this section of the Zoning Ordinance, any person or entity holding a Certificate of Occupancy to lawfully operate a sexually oriented business shall be permitted to continue to operate as a legal nonconforming use; provided, however, that the use remains restricted to the same classification, location and area (square footage) it occupied prior to that effective date. Should such business cease to operate or be discontinued for any period of time, it shall not thereafter be reestablished without being in full compliance with all provisions of this section of the Zoning Ordinance and other applicable codes and ordinances subject to the protection provided by Arizona State Statutes and the Constitution of the State of Arizona. The terms "cease to operate" or "discontinued for any period of time" shall mean the voluntary or intentional termination, cessation or discontinuance of the business by the owner or other party in interest or an involuntary termination of the business resulting from a violation of any applicable rule, regulation, ordinance, statute or law. The holder of the certificate of occupancy or operator of the business shall be responsible for providing documentation, acceptable to the Director, that a nonconforming sexually oriented business has not ceased to operate or been discontinued. A nonconforming sexually oriented business shall not be enlarged, increased or altered. Any change in use shall require full compliance with all provisions of this Zoning Ordinance and any other applicable codes subject to the protection provided by Arizona State Statutes and the Constitution of the State of Arizona.

c.) A sexually oriented business lawfully operating with a Certificate of Occupancy describing the sexually oriented business use as a conforming use is not rendered a nonconforming use by the subsequent location, of one or more of the business or uses listed under 103.15.C.5.a.) through h.) within 2,640 feet.

10. Certificate of Occupancy

A Certificate of Occupancy is required to legally operate a business in Gila County. Any change made or added to an existing business must be reflected in that Certificate of Occupancy. Sexually oriented businesses are recognized as a separate and distinct business use and that use must be reflected in the Certificate of Occupancy. A Certificate of Occupancy is required whether the sexually oriented business is a legal nonconforming use or a conforming use. Prior to issuance of a Certificate of Occupancy, the owner or applicant shall be required to file a Development Plan as required by this Zoning Ordinance.

11. Inspection

(a) Sexually oriented businesses and sexually oriented business employees shall permit officers or agents of Gila County to inspect the business premises for the purpose of ensuring compliance with the specific regulations of this section of the Zoning Ordinance, during those times when the Sexually Oriented Business is occupied by patrons or is open for business. This section of the Zoning Ordinance shall be narrowly construed by the County to authorize reasonable inspections of the licensed premises pursuant to this section, but not to authorize a harassing or excessive pattern of inspections.

(b) The provisions of this section do not apply to areas of an adult motel which are currently being rented by a customer for use as a permanent or temporary habitation.

12. Severability

Any County ordinance containing any provision in conflict with any provision of this section of the Zoning Ordinance is hereby repealed. Each section, subsection and provision of this section of the Zoning Ordinance is hereby declared to be an independent division and subdivision and, notwithstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provision of this section of the Zoning Ordinance, or the application thereof to any person or circumstance is held to be invalid, the remaining sections or provisions and the application of such sections and provisions to any person or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such sections and provisions are severable and would have been passed independently of such section or provision so known to be invalid.

13. Penalties and Enforcement

(a) A person who knowingly violates, disobeys, omits, neglects, or refuses to comply with or resists the enforcement of any of the provisions of this section of the Zoning Ordinance or any part thereof is guilty of a Class 2 Misdemeanor. Each day the violation is committed, or permitted to continue, shall constitute a separate offense and shall be treated as such.

(b) The County Attorney is hereby authorized to institute civil proceedings necessary for the enforcement of this Section (103.15) to prosecute, restrain, or correct violations hereof. Such proceedings including injunction, shall be brought in the name of the County, provided, however, that nothing in this section of the Zoning Ordinance and no action taken hereunder, shall be held to exclude such criminal proceedings as may be authorized by other provisions of the Gila County Zoning Ordinance, or any of the laws or ordinances in force in the County or State, or to exempt anyone violating this code or any part of the said laws from any penalty which may be incurred.

A PROPOSAL TO AMEND SECTION 104.2.G.3, PERMITTED USES, C3-COMMERCIAL THREE DISTRICT (CENTRAL COMMERCIAL DISTRICT), BY ADDING SUBSECTION g SEXUALLY ORIENTED BUSINESSES

Section 104.2.G-C3 Commercial Three District

3. Permitted Uses:

g. Sexually oriented businesses, subject to the

g. provisions of Section 103.15.

A PROPOSAL TO AMEND SECTION 104.2.N.2, DISTRICT STIPULATIONS AND PROVISIONS, GU (GENERAL UNCLASSIFIED DISTRICT), BY ADDING SUBSECTION c PROHIBITING SEXUALLY ORIENTED BUSINESSES

Section 104.2.N-GU General Unclassified District

2. District Stipulations and Provisions:

c. Sexually oriented businesses are not permitted

c. in this Zoning District.

Information on the proposed amendment is available for review in the Gila County Community Development Division located at 1400 East Ash Street, Globe, AZ. and the Payson Development Office located at 714 S. Beeline Hwy., Suite 200, Payson, AZ., during normal business hours. This amendment will become effective thirty (30) days after adoption by the Board of Supervisors.

TIME: 10:45 a.m.

Gila County Board of Supervisors

by: /s/ Marian Sheppard

Marian Sheppard, Chief Deputy Clerk of the Board

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