§ 22-237. Definitions.

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Adult arcade means any commercial establishment to which the public is permitted or invited wherein coin-operated, slug-operated, or, for any form of consideration, electronically, electrically, or mechanically controlled still or motion picture machines, projectors, video or laser disc players, 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 an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

Adult bookstore, adult novelty store and adult video store mean as follows:

(1)

A commercial establishment which, as a regular and substantial course of conduct, offers for sale or rental for any form of consideration any one or more of the following:

a.

Books, magazines, periodicals or other printed matter; photographs, films, motion pictures, videocassettes or video reproductions; any material in digital format, including but not limited to compact discs (CD) or digital video discs (DVD); slides; or other visual representations which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; or

b.

Instruments, devices, or paraphernalia, except for clothing, which are designed for use in connection with specified sexual activities.

(2)

The phrase "regular and substantial course of conduct," as used in subsection (1) of this definition, shall be construed with reference to all relevant factors, including but not limited to the following:

a.

The business devotes more than 25 percent of its retail inventory (not measured by the number of items but rather by the cost to the business owner of the inventory) to merchandise distinguished or characterized by an emphasis upon specified sexual activities or specified anatomical areas.

b.

The business devotes more than 25 percent of the retail floor area to merchandise that is distinguished or characterized by an emphasis upon specified sexual activities and specified anatomical areas.

c.

The retail value of merchandise that is distinguished or characterized by an emphasis upon specified sexual activities and specified anatomical areas exceeds 25 percent of the total retail value of inventory offered in each of the following categories:

1.

Books;

2.

Magazines;

3.

Videotapes or any material in digital format, including but not limited to compact discs (CD) or digital video discs (DVD), for sale or rental;

4.

Novelties and devices; and

5.

On-premises viewing of images, films, and/or videos.

d.

Gross revenue derived from merchandise in any category set forth in subsection (2)c of this definition exceeds 25 percent of the total gross revenue for the category.

(3)

There is a rebuttable presumption that a business constitutes an adult bookstore, adult novelty store or adult video store where the business:

a.

Offers or advertises merchandise that is distinguished or characterized by an emphasis upon specified sexual activities or specified anatomical areas as set forth in subsection (2)c of this definition; and

b.

Fails to make revenue- and inventory-related business records available to the city upon reasonable advance notice.

Adult cabaret means as follows:

(1)

A nightclub, bar, restaurant, or similar commercial establishment which, as a regular and substantial course of conduct, features:

a.

Persons who appear in a state of nudity or seminude condition;

b.

Live performances which are distinguished or characterized by an emphasis upon the exposure of specified anatomical areas or by specified sexual activities; or

c.

Films, motion pictures, videocassettes, any material in digital format including but not limited to compact discs (CD) or digital video discs (DVD), slides or other photographic reproductions which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

(2)

The phrase "regular and substantial course of conduct," as used in subsection (1) of this definition, shall be construed with reference to all relevant factors, including but not limited to the following:

a.

The proportion of the business' performances or services that is distinguished or characterized by an emphasis upon the display or depiction of specified sexual activities or specified anatomical areas.

b.

The proportion of the business' revenue that is attributable to performances or services that are distinguished or characterized by an emphasis upon the display or depiction of specified sexual activities or specified anatomical areas.

Adult motel means a hotel, motel or similar commercial establishment which offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides, or other photographic reproductions which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; and has any of the following characteristics:

(1)

A sign visible from the public right-of-way which advertises the availability of the photographic reproductions described in this definition;

(2)

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

(3)

Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten hours.

Adult motion picture theater means a commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides, or similar photographic reproductions are regularly shown which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas, for observation by five or more patrons at any one time. The phrase "regularly shown" shall be construed with reference to all relevant factors, including but not limited to the following:

(1)

The proportion of the theater's photographic reproductions that are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

(2)

The number of photographic reproductions shown at the theater each month that are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

(3)

The proportion of the theater's revenue that is attributable to the showing of photographic reproductions distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

Adult-oriented business means any of the following commercial establishments where patrons are permitted or invited:

(1)

Adult arcade;

(2)

Adult bookstore;

(3)

Adult cabaret;

(4)

Adult motel;

(5)

Adult motion picture theater;

(6)

Adult novelty store;

(7)

Adult theater;

(8)

Adult video store;

(9)

Nude model studio; or

(10)

Sexual encounter center.

Adult theater means a theater, concert hall, auditorium, or similar commercial establishment which as a regular and substantial course of conduct features persons who appear in a state of nudity or seminude condition and/or features live performances which are distinguished or characterized by an emphasis upon the exposure of specified anatomical areas or by specified sexual activities. The phrase "regular and substantial course of conduct" shall be construed with reference to all relevant factors, including but not limited to the following:

(1)

The proportion of the business' performances or services that is distinguished or characterized by an emphasis upon the display or depiction of specified sexual activities or specified anatomical areas.

(2)

The proportion of the business' revenue that is attributable to entertainment that is distinguished or characterized by an emphasis upon the display or depiction of specified sexual activities or specified anatomical areas.

Distinguished or characterized by an emphasis upon means the dominant or essential theme of the object described by such phrase. For instance, when the phrase refers to films "which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas," the films so described are those of which the dominant or predominant character and theme are the depiction or description of the enumerated sexual activities or anatomical areas.

Employee means a person who performs any service on the premises of an adult-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 such business. The term "employee" does not include a person exclusively on the premises of the adult-oriented business to render only repair or maintenance services or to deliver equipment or goods to the adult-oriented business as long as such person is not nude, seminude, in a state of nudity, or in a seminude condition.

Establishment of an adult-oriented business means and includes any of the following:

(1)

The opening or commencement of any adult-oriented business as a new business;

(2)

The conversion of an existing business, whether or not an adult-oriented business, to any other adult-oriented business;

(3)

The addition of any adult-oriented business to any other existing adult-oriented business; or

(4)

The relocation of any adult-oriented business.

Fabric means cloth made by weaving or knitting natural or synthetic fibers and filaments.

Hotel means a building where lodging and usually meals, entertainment and other various personal services are provided to the public for some form of consideration.

Licensee means a person in whose name a license to operate an adult-oriented business has been issued, as well as the person listed as an applicant on the application for a license; and in the case of an employee, a person in whose name a license has been issued authorizing employment in an adult-oriented business.

Motel means a hotel in which the rooms are accessible from the business parking areas.

Nude model studio means any place where a person who appears seminude, in a state of nudity, or who 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. The term "nude model studio" shall not include a proprietary school licensed by the state 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:

(1)

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;

(2)

Where, in order to participate in a class, a student must enroll at least three days in advance of the class; and

(3)

Where no more than one nude or seminude model is on the premises at any one time.

Nudity and a state of nudity mean the showing of the human male or female genitals, pubic area, anus, or buttocks with less than a fully opaque fabric covering; the showing of the female breast with less than a fully opaque fabric covering of any part of the areola; or the showing of completely or opaquely covered, by fabric, male genitals in a discernibly turgid state.

Person means an individual, proprietorship, partnership, corporation, association, or other legal entity.

Seminude and in a seminude condition mean a state of dress in which clothing covers no more than the genitals, pubic region, and areola of the female breast. This definition includes the entire lower portion of the human female breast, but does not include any portion of the cleavage of the human female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel, provided the areola is not exposed in whole or in part.

Sexual encounter center means a business or commercial enterprise that, as one of its principal purposes, offers for any form of consideration physical contact in the form of wrestling or tumbling between persons of the opposite sex, when one or more of the persons is in a state of nudity or seminude condition.

Specified anatomical areas means and includes the following:

(1)

Less than completely and opaquely covered by fabric:

a.

Human genitals or pubic region;

b.

Human buttocks;

c.

Human anus; or

d.

The female breast below a point immediately above the top of the areola;

(2)

Human male genitals in a discernibly turgid state, even if completely or opaquely covered by fabric; and

(3)

Any device, costume, or covering that simulates any of the body parts included in subsection (1) or (2) of this definition.

Specified criminal activity means any of the following offenses:

(1)

Prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution or display of harmful material to a minor; sexual performance involving a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; engaging in organized criminal activity; sexual assault; molestation of a child; gambling; distribution of a controlled substance; or any similar offenses to those described in this subsection under the criminal or penal code of other states or countries;

(2)

For which:

a.

Less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is for a misdemeanor offense;

b.

Less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or

c.

Less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24-month period.

(3)

The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.

Specified sexual activities means and includes any of the following, whether performed directly or indirectly through clothing or other covering:

(1)

The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast.

(2)

Sex acts, actual or simulated, including but not limited to intercourse, oral copulation, or sodomy.

(3)

Masturbation, actual or simulated.

(4)

Excretory functions as part of or in connection with any of the other activities described in subsections (1) through (3) of this definition.

Transfer of ownership or control of an adult-oriented business means and includes any of the following:

(1)

The sale, lease, or sublease of the adult-oriented business;

(2)

The transfer of securities which constitute a controlling interest in the adult-oriented business, whether by sale, exchange, or similar means; or

(3)

The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the adult-oriented business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.

(Ord. No. 99-06, § 6(4.34.100—4.34.220), 2-24-1999)

Cross reference

Definitions generally, § 1-2.