Chapter 5.20
SEXUALLY-ORIENTED BUSINESS LICENSE AND REGULATIONS
Sections:
5.20.080 Expiration of license.
5.20.120 Location of sexually-oriented businesses.
5.20.130 Additional regulations for adult motels.
5.20.150 Additional regulations for escort agencies.
5.20.160 Additional regulations for nude model studios.
5.20.170 Additional regulations concerning public nudity.
5.20.180 Prohibition against children in a sexually-oriented business.
5.20.220 Misdemeanor designations and penalties.
5.20.010 Purpose and intent.
It is the purpose and intent of this chapter to regulate sexually-oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the Town of Pinetop-Lakeside and to establish reasonable and uniform regulations to prevent any deleterious location and concentration of sexually-oriented businesses within the Town, thereby reducing or eliminating the adverse secondary effects from such sexually-oriented businesses. The provisions of this chapter 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 chapter 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 the chapter to condone or legitimize the distribution of obscene material.
5.20.020 Definitions.
A. For the purpose of this section, certain terms and words are defined as follows:
1. "Adult Arcade" Any place to which the public is permitted or invited wherein coin-operated, slug-operated, or for any form of consideration, or 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 persons in booths or viewing rooms where the images so displayed exhibit "specified sexual activities" or "specified anatomical areas."
2. "Adult Bookstore, Adult Novelty Store or Adult Video Store" A commercial establishment which, offers sexually explicit material for sale or rental, for any form of consideration, and meets one (1) or more of the following criteria:
a. That has thirty percent (30%) or more of its inventory, stock, or merchandise on hand at any time that is comprised of sexually explicit material; or
b. That has a substantial or significant portion of its inventory, stock, or merchandise on hand at any time that is comprised of sexually explicit material; or
c. That derives thirty percent (30%) or more of its gross income for any one calendar month from the sale or rental, in any form of consideration, of sexually explicit material; or
d. That derives a substantial or significant portion of its gross income for any one month from the sale or rental, in any form of consideration, of sexually explicit material; or
e. That at any time displays sexually explicit material either in a display area that is thirty percent (30%) or more of its total display area or on a floor area equal to at least two hundred (200) square feet. For purposes of calculating the floor area, the business premises shall be viewed from above in two dimensions and all areas that are reserved for foot traffic shall be included; or
f. That displays a substantial or significant amount of sexually explicit material in its display area.
3. "Adult Cabaret" A nightclub, bar, restaurant, or similar commercial establishment which during any part of any two or more days within any continuous thirty day period features, exhibits, or displays:
a. Persons who appear in a state of nudity or semi-nude; or
b. Live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities" or
c. Films, motion pictures, video cassettes, video reproductions, slides or other reproductions offered in photographic, electronic, magnetic, digital or other imaging medium or other visual representations that are distinguished or characterized by an emphasis on matters which depict or describe "specified sexual activities" or "specified anatomical areas."
4. "Adult Motel" 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, video reproductions, slides, or other reproductions offered in photographic, electronic, magnetic, digital or other imaging medium or other visual representations that are distinguished or characterized by an emphasis on matters that depict or describe "specified sexual activities" or "specified anatomical areas" and has a sign visible from the public right of way which advertises the availability of this adult, nude, sex, or "XXX" movies, videos, films or similar reproductions; or
b. Offers a sleeping room for rent for a period of time that is less than ten (10) hours; or
c. Allows a tenant or occupant of a sleeping room to subrent the room for a period of time less than ten (10) hours.
5. "Adult Motion Picture Theater" A commercial establishment that features, exhibits or displays during any part of any two or more days within any continuous thirty day period for any form of consideration; films, motion pictures, video cassettes, video reproductions, slides, or other reproductions offered in photographic, electronic, magnetic, digital or other imaging medium or other visual representations that are distinguished or characterized by an emphasis on matters that exhibit "specified sexual activities" or "specified anatomical areas."
6. "Adult Theater" A theater, concert hall, auditorium, or similar commercial establishment which during any part of any two or more days within any continuous thirty day period features, exhibits, or displays persons who appear in a state of nudity or semi-nude or live performances that expose or exhibit "specified anatomical areas" or "specified sexual activities."
7. "Employee" Any 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.
8. "Escort" A person who for tips or other form of consideration agrees or offers to act as a companion or date for another person and who offers to privately model lingerie, to perform a striptease, to appear in a state of nudity or semi-nudity, to display any specified anatomical areas or perform any specified sexual activities.
9. "Escort Agency" A person or business that furnishes; offers to furnish or advertises to furnish escorts for a fee, tip, or other consideration.
10. "Establishment" Means and includes any of the following:
a. The opening or commencement of any sexually-oriented business as a new business; or
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; or
d. The relocation of any sexually-oriented business.
11. "Licensee" In the case of a business, a person in whose name a license to operate a sexually-oriented business has been issued, as well as the individual 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 a sexually-oriented business.
12. "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 simulating of external soft parts of the body with the hands or with the aid of any mechanical or electrical apparatus or appliance.
This paragraph does not apply to:
a. Physicians licensed pursuant to Arizona Revised Statutes Title 32, chapter 7, 8, 13, 14, or 17.
b. Registered nurses, licensed practical nurses, physical therapists or technicians who are acting under the supervision of a physician licensed pursuant to A.R.S. Title 32, chapter 13, 15, 17, or 19.
c. Persons who are employed or acting as trainees for a bona fide amateur, semiprofessional athlete or athletic team.
d. Persons who are licensed pursuant to A.R.S. Title 32, chapter 3 or if the activity is limited to the head, face or neck.
e. Massage therapy is non-sexual massage offered by an individual who is licensed by a professionally recognized organization.
13. "Nude Model Studio" Any place where a person who appears semi-nude, in a state of nudity, or who displays "specified anatomical areas" and is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly exhibited, before 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 semi-nude person is available for viewing; and
b. Where in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and
c. Where no more than one (1) nude or semi-nude model is on the premises at any one time.
14. "Nudity" or a "State of Nudity"
a. The appearance of a human anus, male genitals, female genitals, or female breast; or
b. A state of dress which fails to opaquely cover a human anus, male genitals, female genitals, or areola of the female breast.
15. Person" An individual, proprietorship, partnership, corporation, association, or other legal entity.
16. Semi-Nude" A state of dress which shows the female breast below a horizontal line across the top of the areola at its highest point, or which shows the male or female buttocks. This definition shall not include any portion of the cleavage of the female breast exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel, provided that the areola is not exposed in whole or in part.
17. Sexual Encounter Center" A business or commercial enterprise that offers for any form of consideration or features, displays, exhibits, or permits:
a. Physical contact in the form of wrestling or tumbling between two or more persons when one (1) or more of the persons is in a state of nudity or semi-nude; or
b. Two or more persons engaging in "specified sexual activities" or exposing "specified anatomical areas."
18. "Sexually-Oriented Business" An adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center, or any combination of the foregoing.
19. "Specified Anatomical Areas" Means and includes the following:
a. Human genitals in a state of sexual arousal;
b. The appearance of the cleft of the buttocks, anus, male or female genitals, or areola of the female breast; or
c. A state of dress which fails to opaquely cover the cleft of the buttocks, anus, male or female genitals, or the areola of the female breast.
20. "Specified Criminal Activity" Means any of the following offenses:
a. Prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution or display of harmful material to a minor; sexual performance by 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; or distribution of a controlled substance; or any similar offenses to those described above under the criminal or penal code of other states or countries;
b. for which:
(1) 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 of a misdemeanor offense; or
(2) 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
(3) 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.
(a) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.
21. "Specified Sexual Activities" Means and includes any of the following:
a The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts, that occurs directly and not through clothing; or
b. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; or
c. Masturbation, actual or simulated; or
d. Excretory functions as part of or in connection with any of the activities set forth in (a) through (c) above.
22. "Substantial Enlargement" Of a sexually-oriented business means the increase in floor areas occupied by the business by more than twenty-five percent (25%) as the floor area exists on the date this chapter takes effect.
23. "Transfer of Ownership or Control" Of a sexually-oriented business means and includes any of the following:
a. The sale, lease or sublease of the business;
b. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
c. The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
5.20.030 Classification.
Sexually-oriented businesses are classified as follows:
1. Adult arcades;
2. Adult bookstores or adult video stores;
3. Adult cabarets;
4. Adult motels;
5. Adult motion picture theaters;
6. Adult theaters;
7. Escort agencies;
8. Nude model studios;
9. Sexual encounter centers;
10. Adult novelty stores; and
11. Any combination of classifications set forth above.
5.20.040 License required.
A. It is a Class II misdemeanor:
1. For any person to operate a sexually-oriented business without a valid sexually-oriented business license issued by the Town pursuant to this chapter.
2. For any person who operates a sexually-oriented business to employ a person to work for the sexually-oriented business who is not licensed as a sexually-oriented business employee by the Town pursuant to this chapter.
3. For any person to obtain employment with a sexually-oriented business without having secured a sexually-oriented business employee license pursuant to this chapter.
A. An application for a license must be made on a form provided by the Town.
B. All applicants must be qualified according to the provisions of this chapter. The application may request and the applicant shall provide such information (including fingerprints) as to enable the Town to determine whether the applicant meets the qualifications established in this chapter.
D. If a person who wishes to operate a sexually-oriented business is an individual, the person must sign the application for a license as applicant. If a person who wishes to operate a sexually-oriented business is other than an individual, each individual who has a twenty percent (20%) or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under the following Section, and each applicant shall be considered a licensee if a license is granted.
E. The completed application for a sexually-oriented business license shall contain the following information and shall be accompanied by the following documents:
1. If the applicant is:
a. An individual, the individual shall state his/her legal name and any aliases and submit proof that he/she is at least eighteen (18) years of age;
b. A partnership, the partnership shall state its complete name, and the names of all partners, whether the partnership is general or limited, and a copy of the partnership agreement, if any;
c. A corporation, the corporation shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of its state of incorporation, the names and capacity of all officers, directors and principal stockholders, and the name of the registered corporate agent and the address of the registered office for service of process;
d. A limited liability company, the company shall state its complete name, and the names of all members who own a twenty-percent (20%) or greater interest in the capital or profits of the limited liability company. If the management of the limited liability company is vested in a manager or managers, the company shall also state the name of each person who is a manager of the limited liability company.
2. If the applicant intends to operate the sexually-oriented business under a name other than that of the applicant; he or she must state 1) the sexually-oriented business’s fictitious name and 2) submit the required registration documents.
3. If the applicant has been convicted of a specified criminal activity as defined in this chapter, and, if so, the specified criminal activity involved, the date, place, and jurisdiction of each offense.
4. If the applicant has had a previous license under this chapter or other similar sexually-oriented business ordinances from another city, town, county or state denied, suspended or revoked, including the name and location of the sexually-oriented business for which the permit was denied, suspended or revoked, as well as the date of the denial, suspension or revocation, and whether the applicant or a person residing with the applicant has been a partner in a partnership or an officer, director or principal stockholder of a corporation that is licensed under this chapter whose license has previously been denied, suspended or revoked, including the name and location of the sexually-oriented business for which the permit was denied, suspended or revoked as well as the date of denial, suspension or revocation.
5. If the applicant holds any other licenses under this chapter or other similar sexually-oriented business licenses from another town or county and, if so, the names and locations of such other licensed businesses.
6. The single classification of license for which the applicant is filing.
7. The location of the proposed sexually-oriented business, including a legal description of the property, street address, and telephone number(s), if any.
8. The applicant’s mailing address and residential address.
9. A recent photograph of the applicant(s).
10. The applicant’s driver’s license number, social security number, and/or his/her state or federally issued tax identification number.
11. A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but it must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches.
12. A current certificate and straight-line drawing without regard to intervening structures or objects, prepared within thirty (30) days prior to application by a registered land surveyor depicting the property lines and the structures containing any existing sexually-oriented businesses within two hundred fifty (250) feet of the property line of the property to be certified; the property lines of any established religious institution/synagogue, a private, public or charter school, a child care facility, a public park, a public recreation area or a residence within one thousand three hundred twenty (1,320) feet of the property line of the property to be certified. For purposes of this section, a use shall be considered existing or established if it is in existence at the time an application is submitted.
13. If an applicant wishes to operate a sexually-oriented business, other than an adult motel, which shall exhibit on the premises, in a viewing room or booth of less than one hundred fifty (150) square feet of floor space, films, video cassettes, other video reproductions, or live entertainment which depict specified sexual activities or specified anatomical areas, then the applicant shall comply with the application requirements set forth in Section 5.20.140.
F. Before any applicant may be issued a sexually-oriented business employee license, the applicant shall submit on a form to be provided by the Town the following information:
1. The applicant’s name or any other name (including "stage" names) or aliases used by the individual;
2. Age, date, and place of birth;
3. Height, weight, hair and eye color;
4. Present residence address and telephone number;
5. Present business address and telephone number;
6. Date, issuing state and number of driver’s permit or other identification card information;
7. Social Security number; and
8. Proof that the individual is at least eighteen (18) years of age.
G. Attached to the application form for a sexually-oriented business employee license as provided above, shall be the following:
1. A color photograph of the applicant clearly showing the applicant’s face, and the applicant’s fingerprints on a form provided by the police department. Any fees for the photographs and fingerprints shall be paid by the applicant.
2. A statement detailing the license history of the applicant for the five (5) years immediately preceding the date of the filing of the application, including whether such applicant has had a previous license, permit or authorization under this chapter or other similar sexually-oriented business ordinances from another town or county denied, revoked or suspended, or had any professional or vocational license or permit denied, revoked or suspended. In the event of any such denial, revocation, or suspension, state the name(s) in use by the applicant at the time of such denial revocation or suspension, the name of the issuing or denying jurisdiction, and describe in full the reason for the denial, revocation or suspension. A copy of any order of denial, revocation or suspension shall be attached to the application.
3. A statement whether the applicant has been convicted of a specified criminal activity as defined in this chapter and, if so, the specified criminal activity involved, the date, place and jurisdiction of each offense. (Ord. 09-334 § 1)
5.20.050 Issuance of license.
A. Sexually-Oriented Business License. Within thirty (30) days after receipt of a completed sexually-oriented business application, the Town shall approve or deny the issuance of a license to an applicant. The Town shall approve the issuance of a license to the applicant unless it is determined by a preponderance of the evidence that one or more of the following findings is true:
1. Applicant is under eighteen (18) years of age.
2. An applicant is overdue in payment to the Town of taxes, fees, fines, or penalties assessed against or imposed upon him/her in relation to any business.
3. An applicant has failed to provide information reasonably necessary for issuance of the license of has falsely answered a question or request for information on the application form.
4. An applicant has been denied a license by the Town to operate a sexually-oriented business within the preceding twelve (12) months or whose license to operate a sexually-oriented business has been revoked within the preceding twelve (12) months.
5. An applicant has been convicted of a specified criminal activity defined in this chapter.
6. The premises to be used for the sexually-oriented business have not been approved by the health department, fire department and the building official as being in compliance with applicable laws and ordinances.
7. The license fee required by this ordinance has not been paid.
8. An applicant of the proposed establishment is in violation of or is not in compliance with any of the provisions of this chapter.
B. Sexually-Oriented Business Employee License. Upon the filing of said application for a sexually-oriented business employee license, the Town shall issue a temporary license to said applicant. The application shall then be referred to the appropriate Town departments for an investigation to be made on such information as is contained on the application. The application process shall be completed within thirty (30) days from the date the completed application is filed. After the investigation, the Town shall issue a license, unless it is determined by a preponderance of the evidence that one or more of the following findings is true:
1. The applicant has failed to provide information reasonably necessary for issuance of the license of has falsely answered a question or request for information on the application form;
2. The applicant is under the age of eighteen (18) years;
3. The applicant has been convicted of a specified criminal activity as defined in this chapter;
4. The sexually-oriented business employee license is to be used for employment in a business prohibited by local or state law, statute, rule or regulation, or prohibited by a particular provision of the chapter; or
5. The applicant has had a sexually-oriented business employee license revoked by the Town within two (2) years of the date of the current application. If the sexually-oriented business employee license is denied, the temporary license previously issued is immediately deemed null and void. Denial, suspension, or revocation of a license issued pursuant to this subsection shall be subject to appeal as set forth in Section 5.20.100.
C. Annual License Renewal. A license granted pursuant to this section shall be subject to annual renewal upon the written application of the applicant and a finding by the Town that the applicant has not been convicted of any specified criminal activity as defined in this chapter or committed any act during the existence of the previous license, which would be grounds to deny the initial license application. The renewal of the license shall be subject to the payment of the fee as set forth in Section 5.20.060.
D. Posting Requirement. The license, if granted shall state on its face the name of the person or persons to whom it is granted, the expiration date, the address of the sexually-oriented business and the classification for which the license is issued pursuant to Section 5.20.030. All licenses for businesses shall be posted in a conspicuous place at or near the entrance to the sexually-oriented business so that they may be easily read at any time. A sexually-oriented business employee license must be on the employee’s person, readily available for inspection, or at the adult business premises, at all times during which the employee is engaging in such licensed business activities within the Town and shall be available for inspection upon request by any law enforcement officer or any town official whose duties are related to licensing.
E. Certifications Required. The fire department, and the Town shall complete their certifications that the premises are in compliance or not in compliance with requirements of this chapter and other applicable Town ordinances within twenty (20) days of receipt of the application by the Town.
F. License Classification. A sexually-oriented business license shall issue for only one classification as found in Section 5.20.030.
5.20.060 Fees.
A. Every application for a sexually-oriented business license (whether for a new license or for renewal of an existing license) shall be accompanied by a $100.00 non-refundable application and a $300.00 per person investigation fee.
B. In addition to the application and investigation fee required above, every sexually-oriented business that is granted a license (new or renewal) shall pay to the Town an annual non-refundable license fee of $500.00 within thirty (30) days of license issuance or renewal.
C. Every application for a sexually-oriented business employee license (whether for a new license or for renewal of an existing license) shall be accompanied by an annual $50.00 non-refundable application and license fee, and a $300.00 investigation fee.
D. All license applications and fees shall be submitted to the Town’s Community Development Department.
5.20.070 Inspection.
A. An applicant or licensee shall permit representatives of the Police Department, Health Department, Fire Department, Community Development Department, or other Town departments or agencies to inspect the premises of a sexually-oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business.
B. A person who operates a sexually-oriented business or his agent or employee commits a Class II misdemeanor if he refuses to permit such lawful inspection of the premises at any time it is open for business.
5.20.080 Expiration of license.
A. Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in Section 5.20.040. Application for renewal shall be made at least thirty (30) days before the expiration date, and when made less than thirty (30) days before the expiration date, the expiration of the license will not be affected.
B. When the Town denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial. If, subsequent to denial, the Town finds that the basis for denial of the renewal license has been corrected or abated, the applicant may be granted a license if at least ninety (90) days have elapsed since the date denial became final.
5.20.090 Suspension.
A. The Town shall suspend a license for a period not to exceed thirty (30) days if it determines that a licensee or an employee of a licensee has:
1. violated or is not in compliance with any section of this chapter;
2. used to allow an inspection of the sexually-oriented business premises as authorized by this chapter;
3. has violated applicable provisions of the Town of Pinetop-Lakeside Town Code;
4. been on the premises of the sexually-oriented business while in an intoxicated condition or has committed disorderly conduct as defined in A.R.S. Section 13-2904 while on the premises of the business, or knowingly has permitted an employee to be on the business premises while the employee was in an intoxicated condition;
5. knowingly permitted gambling by any person on the premises of the sexually-oriented business.
5.20.100 Revocation.
A. The Town shall revoke a license if a cause of suspension in Section 5.20.090 occurs and the license has been suspended within the preceding twelve (12) months.
B. The Town shall revoke a license if it determines that:
1. a licensee gave false or misleading information in the material submitted during the application process;
2. a licensee has knowingly allowed possession, use, or sale of controlled substances on the premises;
3. a licensee has knowingly allowed prostitution or solicitation of prostitution on the premises;
4. a licensee knowingly operated the sexually-oriented business during a period of time when the licensee’s license was suspended;
5. except in the case of an adult motel, a licensee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sex act to occur in or on the licensed premises; or
6. a licensee is delinquent in payment to the Town, County, or State for any taxes or fees past due.
7. on two (2) or more occasions within a twelve (12) month period, a person or persons while in or on the licensed premises committed an offense listed in Section 5.20.020 (19)(a), for which a conviction has been obtained, and the person or persons were managers or employees of the sexually-oriented business at the time the offenses were committed.
C. When the Town revokes a license, the revocation shall continue for one (1) year, and the licensee shall not be issued a sexually-oriented business license for one (1) year from the date the revocation became effective. If, subsequent to revocation, the Town finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least ninety (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 suspension or revocation of any license, the applicant or licensee may seek prompt judicial review of such administrative action in any court of competent jurisdiction. The administrative action shall be promptly reviewed by the court. The license denial, suspension or revocation shall be stayed automatically pending judicial review of such administrative action.
5.20.110 Transfer of license.
A licensee shall not transfer his/her license to another, nor shall a licensee operate a sexually- oriented business under the authority of a license at any place other than the address designated in the application.
5.20.120 Location of sexually-oriented businesses.
A. A person commits a Class II misdemeanor if that person operates or causes to be operated a sexually-oriented business in any zoning district other than as specified in the Town Code.
B. A person commits a Class II misdemeanor if that person operates or causes to be operated a sexually-oriented business within one thousand three hundred twenty (1,320) feet of:
1. A boundary of a residential district as defined in the Town Code;
2. The property line of a lot devoted to a residential use as defined in the Town Code.
C. A person commits a Class II misdemeanor if that person operates or causes to be operated a sexually-oriented business within one thousand (1,000) feet of:
1. A church building which is used primarily for religious worship and related religious activities;
2. A public or private educational facility including but not limited to child day care facilities, nursery schools, preschools, charter schools; school includes the school grounds, but does not include facilities used primarily for another purpose and only incidental as a school;
3. A public park or recreational area which has been designated for park or recreational activities.
D. A person commits a Class II misdemeanor if that person causes or permits the operation, establishment, or maintenance of a sexually-oriented business within two hundred fifty (250) feet of another sexually-oriented business or on a lot adjacent to an existing sexually-oriented business.
E. For the purpose of subsection B and C of this Section, 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 property line of the premises of a use listed in subsection B and C. Presence of a town, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this Section.
F. For purposes of subsection D of this Section, the distance between a sexually-oriented business and any other building, structure or business shall be measured in a straight line, without regard to the intervening structures or objects or political boundaries, from the closest exterior wall of the structure in which each business is located. (Ord. 09-334 § 2)
5.20.130 Additional regulations for adult motels.
A. Evidence that a sleeping room in a hotel, motel, or a similar commercial establishment has been rented and vacated two or more times in a period of time that is less than ten (10) hours creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this chapter.
B. A person commits a Class II misdemeanor if, as the person in control of a sleeping room in a hotel, motel, or similar commercial establishment that does not have a sexually-oriented license, he rents or subrents a sleeping room to a person and, within ten (10) hours from the time the room is rented, he rents or subrents the same sleeping room again.
C. For purposes of subsection (B) of this section, the terms "rent" or "subrent" mean the act of permitting a room to be occupied for any form of consideration.
5.20.140 Regulations pertaining to exhibition of sexually explicit films, videos or live entertainment in viewing rooms.
A. A person who operates or causes to be operated a sexually-oriented business, other than an adult motel, which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, video cassette, live entertainment, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:
1. Upon application for a sexually-oriented 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 thirty-two (32) square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer’s or architect’s blueprint shall not be required however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six (6") inches. The Town may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.
2. The application shall be sworn to be true and correct by the applicant.
3. No alteration in the configuration or location of a manager’s station may be made without the approval of the Town.
4. It is the duty of the licensee of the premises to ensure that at least one licensed employee is on duty and situated in each manager’s station at all times that any patron is present inside the premises.
5. The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager’s station of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager’s stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager’s stations. The view required in this subsection must be by direct line of sight from the manager’s station.
6. It shall be the duty of the licensee to ensure that the view area specified in subsection (5) remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times, to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subsection (1) of this Section.
7. No viewing room may be occupied by more than one person at any time.
8. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than five (5.0) foot-candles as measured at the floor level.
9. It shall be the duty of the licensee to ensure that the illumination described above is maintained at all times that any patron is present in the premises.
10. No licensee shall allow openings of any kind to exist between viewing rooms or booths.
11. No person shall make or attempt to make an opening of any kind between viewing booths or rooms.
12. The licensee shall, during each business day, regularly inspect the walls between the viewing booths to determine if any openings or holes exist.
13. The licensee shall cause all floor coverings in viewing booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting.
14. The licensee shall cause all; wall surfaces and ceiling surfaces in viewing booths to be constructed of or permanently covered by, nonporous, easily cleanable material. No wood, plywood, composition board or other porous material shall be used within forty-eight (48") inches of the floor.
B. A person having a duty under Subsection (1) through (14) of Subsection (A) above commits a Class II misdemeanor if he knowingly fails to fulfill that duty.
5.20.150 Additional regulations for escort agencies.
A. An escort agency shall not employ any person under the age of 18 years.
B. A person commits a Class I misdemeanor if the person acts as an escort or agrees to act as an escort for any person under the age of 18 years.
C. An escort agency shall obtain a sexually-oriented business license if its business or office location is in the Town or if it furnishes any person who acts as an escort in the Town.
5.20.160 Additional regulations for nude model studios.
A. The operator of a nude model studio commits a Class I misdemeanor if he/she employs any person under the age of 18 years.
B. A person under the age of 18 years commits a Class II misdemeanor if the person appears semi-nude or in a state of nudity in or on the premises of a nude model studio. It is a defense to prosecution under this subsection if the person under 18 years was in a restroom not open to public view or visible to any other person.
C. A person commits a Class II misdemeanor if the person appears in a state of nudity, or knowingly allows another to appear in a state of nudity in an area of a nude model studio premises which can be viewed from a public right of way.
D. A nude model studio shall not place or permit a bed, sofa, or mattress in any room on the premises, except that a sofa may be placed in a reception room open to the public.
5.20.170 Additional regulations concerning public nudity.
A. It shall be a Class II misdemeanor for a person who knowingly and intentionally, in a sexually-oriented business, appears in a state of nudity or depicts "specified sexual activities."
B. It shall be a Class II misdemeanor for a person who knowingly or intentionally in a sexually-oriented business appears in a semi-nude condition unless the person is an employee who, while semi-nude, shall be at least ten (10) feet from any patron or customer and on stage at least two feet higher than the floor level.
1. It is a Class II misdemeanor for an erotic entertainer, while performing, to knowingly:
a. use his or her hands, or any part of his or her body, to make contact with the breasts, buttocks, anus or genitals of any other person; or
b. permit his or her breasts, buttocks, anus or genitals to make contact with any other person; or
c. display any portion of the areola of the female breast, or any portion of the erotic entertainer’s pubic hair, anus, vulva, or genitals; or
d. permit a patron to place money on the person of, or on the costume of, an erotic entertainer provided that incidental hand-to-hand contact occurring during the act of tipping shall not be unlawful; or
e. perform anywhere other than in the "general patron area" or in any other location which is not entirely visible by "direct line of sight" from the "general patron area." For purposes of this section, "general patron area" means that any portion of the business premises, excluding lobbies and restrooms, which is available to any member of the general public lawfully on the premises without payment of a fee or consideration other than a cover charge or other consideration payable to gain admittance to the premises generally.
f. For purposes of this subsection, "contact" shall include contact which occurs through clothing or by means of any other object.
B. It shall be a Class II misdemeanor for an employee, while semi-nude, to touch a customer or the clothing of a customer.
C. It is unlawful for any person to work as an erotic entertainer on the premises of a business with a liquor license issued by the Arizona Department of Liquor Licenses and Control unless such person is at least 19 years old, regardless of whether such person has been issued an employee license by the Town. The manager of the premises for which a liquor license has issued shall require all persons who seek to work on the premises as erotic entertainers to display to the manager valid proof of age in the form of one of the following documents before allowing such persons to work as erotic entertainers on the premises:
1. A valid driver’s license issued by any state, provided such license includes a picture of the person;
2. An identification license issued pursuant to Arizona Revised Statutes, Section 28-3165;
3. An armed forces identification card;
4. A valid passport which is issued by a government and which contains a photograph of the person and date of birth; or
5. Any other identification document issued by a government which has substantial indices of reliability.
5.20.180 Prohibition against children in a sexually-oriented business.
A. A person commits a Class I misdemeanor if the person knowingly allows a person under the age of 18 years on the premises of a sexually-oriented business.
B. A person commits a Class II misdemeanor if a person operates or causes to be operated a sexually-oriented business and fails, at least once every eight (8) hours during each business day, to inspect or cause to be inspected the outside of the sexually-oriented business premises for trash or waste resulting from specified sexual activities, or describing or depicting specified sexual activities or specified anatomical areas and, if any such trash or waste is found, to pick up and dispose of the trash or waste properly inside the premises of the sexually-oriented business.
5.20.190 Hours of operation.
No sexually-oriented business, except for an adult motel, may remain open at any time between the hours of one o’clock (1:00) A.M. and eight o’clock (8:00) A.M. on weekdays and Saturdays, and one o’clock (1:00) A.M. and noon (12:00) P.M. on Sundays. A violation of this provision is a Class I misdemeanor.
5.20.200 Exemptions.
A. It is a defense to prosecution under Section 5.20.170 that a person appearing in a state of nudity did so in a modeling class operated:
1. by a proprietary school licensed by the state of Arizona, a college, community college, or university supported entirely or partly by taxation;
2. by private college or university which maintains and operates educational programs in which credits are transferable to a college, community college, or university supported entirely or partly by taxation; or
3. in a structure:
a. which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and
b. where, in order to participate in a class a student must enroll at least three (3) days in advance of the class; and
c. where no more than one nude model is on the premises at any one time.
5.20.210 Injunction.
A person who operates or causes to be operated a sexually-oriented business without a valid license or in violation of Section 5.20.120 of this chapter is subject to a lawsuit for injunction as well as prosecution for criminal violations. Such violations shall be Class III misdemeanors punishable by a fine of $200.00 or thirty (30) days imprisonment. Each day a sexually-oriented business so operates is a separate offense or violation.
5.20.220 Misdemeanor designations and penalties.
See Section 1.16.010 of the Town Code.