Chapter 5.30 SEXUALLY ORIENTED BUSINESSES

It is the purpose of this chapter to regulate sexually oriented businesses and related activities to promote the health, safety, morals, and general welfare of the citizens of the town of Sahuarita, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the town. 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 to the United States Constitution or Article II, Section 6, 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 chapter to condone or legitimize the distribution of obscene materials. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-1.]

5.30.020 Definitions.

A. “Adult arcade” means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to regularly show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.

B. “Adult bookstore,” “adult novelty store” or “adult video store” means a commercial establishment that, regardless of any other purposes it may have, and as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:

1. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations that depict or describe specified sexual activities or specified anatomical areas; or

2. Instruments, devices, or paraphernalia that are designed for use in connection with specified sexual activities.

C. “Adult cabaret” means a nightclub, bar, restaurant, or similar commercial establishment that regularly features:

1. Persons who appear in a state of nudity or semi-nudity;

2. Live performances that are characterized by the exposure of specified anatomical areas or by specified sexual activities;

3. 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.

D. “Adult motel” means a hotel, motel or similar commercial establishment that offers accommodation to the public for any form of consideration and 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 has a sign visible from the public right-of-way that advertises the availability of such adult entertainment; and

1. Offers a sleeping room for rent for a period of time that is less than 24 hours; or

2. Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 24 hours.

E. “Adult motion picture theater” means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown that are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

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

G. “Adult vending machine” means any mechanical device that, regardless of any other purposes it may have, regularly publicly dispenses for any form or consideration any books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations that are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

H. “Employee” means a person who performs any service on the premises of a sexually oriented business on a full-time, part-time, contract, or independent basis, whether or not the person is denominated an employee, independent contractor, agent, or otherwise, and whether or not the said person is paid a salary, wage, commission or other compensation by the operator of said business. 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, as well as a person exclusively on the premises as a patron or customer is not an employee within the meaning of this chapter.

I. “Escort” means a person who, for pecuniary or other 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.

J. “Escort agency” means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip, or other consideration.

K. “Establishment” means and includes any of the following:

1. The opening or commencement of any sexually oriented business as a new business;

2. The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;

3. The addition of any sexually oriented business to any other existing sexually oriented business;

4. The relocation of any sexually oriented business; or

5. A sexually oriented business or premises on which the sexually oriented business is located.

L. In assessing whether a particular business is a “family-oriented entertainment business,” the following factors related to the business shall be considered:

1. Whether a primary business purpose is related to the sale of food or food services;

2. Whether a primary business purpose relates to the sale or use of entertainment or educational products, services, facilities or activities;

3. The age of patrons for or by which the services, facilities or activities of the business are primarily appropriate and utilized; and

4. Whether the business is primarily a retail establishment. A business determined to be primarily a retail or a food services establishment is presumed to not qualify as a family-oriented entertainment business unless articulable reasons to the contrary are established.

M. “Licensee” means a person in whose name a license has been issued, as well as the individual listed as an applicant on the application for a license.

N. “Nude model studio” means any place where a person who appears in a state of nudity or displays specified anatomical areas is regularly provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons for consideration.

O. “Nudity” or a “state of nudity” means the appearance of a human bare buttock, anus, anal cleft or cleavage, pubic area, male genitals, female genitals, or vulva, with less than a fully opaque covering; or a female breast with less than a fully opaque covering of any part of the nipple; or human male genitals in a discernibly turgid state even if completely and opaquely covered.

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

Q. “Premises” means the real property upon which the sexually oriented business is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the sexually oriented business, the grounds, private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control, or supervision of the licensee, as described in the application for a business license pursuant to this chapter.

R. “Regularly,” “regularly features,” or “regularly shown” shall be construed to apply the provisions of this chapter only to activities that take place outside the context of some larger form of expression.

S. “School” means a child care facility licensed pursuant to ARS Title 36, Chapter 7.1, or any public or private institution established for the purposes of offering instruction to pupils in programs for preschool children with disabilities, kindergarten programs or any combination of grades one through 12, including, but not limited to, child day care facilities, nursery schools, preschools, kindergartens, elementary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools; “school” includes the school grounds but does not include the facilities used primarily for another purpose and only incidentally as a school.

T. “Semi-nude” or “semi-nudity” means the appearance of the female breast below a horizontal line across the top of the areola at its highest point. This definition shall include the entire lower portion of the human female breasts, but shall not include any portion of the cleavage of the human female breasts exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel, provided the areola is not exposed in whole or in part.

U. “Sexual encounter center” means a business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration 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 semi-nudity.

V. “Sexually oriented business” means an adult arcade, adult vending machine, adult bookstore, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, adult novelty store or sexual encounter center.

W. “Specified anatomical area” means:

1. The human male genitals in a discernibly turgid state, even if fully and opaquely covered; or

2. Less than completely and opaquely covered human genitals, pubic region, buttocks, or a female breast below a point immediately above the top of the areola.

X. “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 by a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; sexual assault; molestation of a child; or any sex-related offenses similar to those described under the criminal code of Arizona, other states, or other 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 of a misdemeanor offense;

b. Less than five 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 felony offense; or

c. Less than five years have elapsed since the date of the last conviction or the date of release from confinement imposed 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 or a person residing with the applicant.

Y. “Specified sexual activities” means and includes any of the following:

1. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts, whether covered or uncovered;

2. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;

3. Masturbation, actual or simulated; or

4. Excretory functions as part of or in connection with any of the activities set forth in subsections (Y)(1) through (3) of this section.

Z. “Substantial enlargement” of a sexually oriented business means the increase in floor area occupied by the business by more than 25 percent, as the floor areas exist on January 28, 2002.

AA. “Transfer of ownership or control” of a sexually oriented business means and includes any of the following:

1. The sale, lease, or sublease of the business;

2. The transfer of securities that form a controlling interest in the business, whether by sale, exchange, or similar means; or

3. The establishment of a trust, gift, or other similar legal device that 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. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-2.]

5.30.030 Classification.

Sexually oriented businesses are classified as follows:

A. Adult arcades;

B. Adult bookstores, adult novelty shops or adult video stores;

C. Adult cabarets;

D. Adult motels;

E. Adult motion picture theaters;

F. Adult theaters;

G. Adult vending machines;

H. Escort agencies;

I. Nude model studios; and

J. Sexual encounter centers. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-3.]

5.30.040 License required – Nontransferability – Exceptions.

A. It shall be unlawful for any person to operate a sexually oriented business without first obtaining and maintaining a valid sexually oriented business license issued pursuant to this chapter.

B. It shall be unlawful for any person who operates a sexually oriented business to employ a person to work and/or perform services on the premises of the sexually oriented business, if such employee is not in possession of a valid sexually oriented business employee license issued to such employee pursuant to this chapter.

C. It shall be unlawful for any person to obtain employment with a sexually oriented business if such person is not in possession of a valid sexually oriented business employee license issued to such person pursuant to this chapter.

D. It shall be unlawful for any person, association, firm or corporation licensed as provided in this chapter to operate under any name or conduct business under any designation not specified in such license.

E. All licenses issued pursuant to this chapter shall be nontransferable except as provided in this chapter.

F. The license required by this section shall be in addition to any other licenses or permits required in order to engage in the business or occupation, as applicable, by either the town, the county or the state, and persons engaging in activities described by this chapter shall comply with all other ordinances and laws, including the town zoning ordinance, as may be required to engage in a business or profession.

G. It shall be a defense to subsections B and C of this section if the employment is of limited duration and for the sole purpose of repair and/or maintenance of machinery, equipment, or the premises. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-4.]

5.30.050 License application.

A. An application for a sexually oriented business license, including a renewal application, must be made on a form provided by the town. The application must be accompanied by a sketch or a 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 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 inches. The town clerk 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.

B. Prior to applying for an original sexually oriented business license, all applicants for such a license must have the premises inspected and approved by the health department, fire department, building department, and zoning department. Written certification of such inspections and approvals by each inspecting agency must be submitted with each sexually oriented business license application. A licensee who has not submitted such certifications within the five previous years or a licensee for an establishment which expanded since the time of the previous license application must also have the respective premises inspected and submit written certification of such inspections and approvals by each inspecting agency with the licensee’s next application for the renewal of a sexually oriented business license. Agencies responsible for inspecting the premises of an existing or anticipated sexually oriented business must complete the requested inspections within 30 days of applicant’s request. In the event one or more agencies fails to timely inspect the requested premises, the requirements of this subsection as they relate to that one or more inspection are waived by the town.

C. The application may request, and the applicant shall provide, such information (including fingerprints) as the town may require to enable the town to determine whether the applicant meets the qualifications established under this chapter. The applicant has an affirmative duty to supplement a pending application with new information received subsequent to the date the application was deemed completed.

D. The town clerk may receive and review the criminal history record information, including conviction and nonconviction data, of license applicants for the purpose of evaluating the fitness of prospective licensees in connection with the issuance, renewal, suspension or revocation of a sexually oriented business license. Such information shall be used only for the purpose of such evaluation. The town clerk shall submit a full set of the license applicant’s fingerprints to the Arizona Department of Public Safety for the purpose of obtaining a state and federal criminal records check pursuant to ARS 41-1750 and Public Law 92-544. The Arizona Department of Public Safety may exchange this fingerprint data with the Federal Bureau of Investigation.

E. All applications to own or operate a sexually oriented business must be submitted by a natural person who must sign the application. If a legal entity wishes to own or operate a sexually oriented business, each natural person who owns or controls a 20 percent or greater interest in the business must sign the application for a sexually oriented business license as an applicant. If a corporation is listed as owner of a sexually oriented business or as the entity that wishes to operate such a business, each individual having a 20 percent or greater interest in the corporation must sign the application for a sexually oriented business license as an applicant. In all cases, any person involved in the day-to-day operation of the business or who has the capacity to significantly influence the operation of the business must sign the application as an applicant.

F. Each application for a sexually oriented business license shall be accompanied by the following:

1. Payment of the application fee in full;

2. The name of the applicant or organization applying for the license and the name under which the sexually oriented business will operate;

3. If the establishment is a state of Arizona corporation, a copy of the articles of incorporation, together with all amendments thereto and a signed statement that the corporation is in good standing in the state of Arizona;

4. If the establishment is a foreign corporation, a copy of the certificate of authority to transact business in this state, together with all amendments thereto and a signed statement that the corporation is in good standing in the state of incorporation;

5. If the establishment is a limited partnership formed under the laws of the state of Arizona, a copy of the certificate of limited partnership, together with all amendments thereto and a signed statement that the limited partnership is in good standing in the state of Arizona;

6. If the establishment is a foreign limited partnership, a copy of the certificate of limited partnership and the qualification documents, together with all amendments thereto and a signed statement that the limited partnership is in good standing in the state of formation;

7. Proof of the current fee ownership of the tract of land on which the establishment is to be situated in the form of a copy of the recorded deed;

8. If the persons identified as the fee owner(s) of the tract of land on which the establishment is to be situated are not also the owners of the establishment, then the lease, purchase contract, purchase option contract, lease option contract or other document(s) evidencing the legally enforceable right of the applicants to have or obtain the use and possession of the tract or portion thereof that is to be used for the purpose of the operation of the establishment;

9. A current certificate and straight-line drawing prepared within 30 days prior to application by a registered land surveyor depicting the property lines and the structures containing any existing sexually oriented businesses within 1,500 feet of the property to be certified; the property lines of any established religious use, public park or recreation area, or family-oriented entertainment business within 1,500 feet of the property to be certified; and the property lines of any school established within 1,500 feet 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;

10. Any of subsections (F)(2) through (9) of this section shall not be required for a renewal application or for an application for a secondary classification of sexually oriented business operated within the same establishment as the primary application or license if the applicant states that the documents previously furnished the town clerk with the original application or previous renewals thereof remain correct and current.

G. Applications for an employee license to work and/or perform services in a sexually oriented business, whether original or renewal, must be made to the town clerk by the person to whom the employee license shall issue. Each application for an employee license shall be accompanied by payment of the application fee in full. Application forms shall be supplied by the town clerk. Applications must be submitted to the office of the town clerk or the town clerk’s designee during regular working hours and contain the following information:

1. The applicant’s given name, and any other names by which the applicant is or has been known, including “stage” names and/or aliases;

2. Age, date and place of birth;

3. Height, weight, hair color, and eye color;

4. Present residence address and telephone number;

5. Present business address and telephone number;

6. Date, issuing state, and number of photo driver’s license, or other state-issued identification card information;

7. Social Security number; and

8. Proof that the individual is at least 18 years old.

All information submitted to the town pursuant to this subsection is confidential and will not be released except as pursuant to a valid law enforcement investigation, court order or as otherwise may be required by law.

H. Each person signing an application as an applicant shall attach to the application form the following:

1. Two identical, passport-quality color photographs of the applicant clearly showing the applicant’s face and taken within the preceding month, and the applicant’s complete fingerprints on a form provided by the police department. Any fees for the photographs and fingerprints shall be paid by the applicant.

2. The town clerk may receive and review the criminal history record information, including conviction and nonconviction data, of license applicants for the purpose of evaluating the fitness of prospective licensees in connection with the issuance, renewal, suspension or revocation of a sexually oriented business license. Such information shall be used only for the purpose of such evaluation. The town clerk shall submit a full set of the license applicant’s fingerprints to the Arizona Department of Public Safety for the purpose of obtaining a state and federal criminal records check pursuant to ARS 41-1750 and Public Law 92-544. The Arizona Department of Public Safety may exchange this fingerprint data with the Federal Bureau of Investigation.

3. A statement detailing the sexually oriented business license history of the applicant for the five years immediately preceding the date of the filing of the application, including whether such applicant, in this or any other town, city, county, state, or country, has ever had any sexually oriented business license, permit, or authorization to do business 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, the statement shall state the name(s) under which the license was sought and/or issued, the name(s) of the issuing or denying jurisdiction, and describe in full the reason(s) for the denial, revocation, or suspension. A copy of any order of denial, revocation, or suspension shall be attached to the application.

4. A statement whether the applicant or any person over the age of 18 years with whom the applicant resides has been convicted, or is awaiting trial on pending charges, of a specified criminal activity and, if so, the nature of the specified criminal activity involved and the date, place and jurisdiction of each.

5. A statement made under oath that the applicant has personal knowledge of the information contained in the application, that the information contained therein and furnished therewith is true and correct and that the applicant has read the provisions of this chapter.

I. A separate application and sexually oriented business license shall be required for each sexually oriented business classification operating within the same establishment.

J. The fact that a person possesses other types of permits and/or licenses does not exempt such person from the requirement of obtaining a sexually oriented business or employee license. [Ord. 2019-143 § 2 (Exh. A); Ord. 2019-137 § 1; Ord. 2015-105 § 1; Ord. 2002-02; prior code § 11-6-5.]

5.30.060 Issuance of license – Denial – Annual renewal required.

A. Upon the filing of an application for a sexually oriented business employee license, the town clerk shall issue a temporary license to said applicant. The application shall then be referred to the appropriate town departments for investigation to be made on the information contained in the application. Any inspection requirement of a particular town agency shall be waived if the respective town agency fails to complete its inspection within 20 days of the date it received an inspection request. The application review process shall be completed within 30 days from the date of the completed application. After the investigation, the town clerk shall issue an employee license, unless it is determined by a preponderance of the evidence that one or more of the following findings is true:

1. That the applicant has failed to provide the information required by this chapter for issuance of the license or has falsely answered a question or request for information on the application form;

2. The applicant is under the age of 18 years;

3. The applicant has been convicted of a specified criminal activity;

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 this chapter; or

5. The applicant has had a sexually oriented business employee license revoked by any jurisdiction within two years of the date of the current application.

B. If an application for a sexually oriented business employee license is denied, the temporary license previously issued is immediately deemed null and void.

C. Denial, suspension, or revocation of a license issued pursuant to this section shall be subject to appeal as set forth in this chapter.

D. A license issued pursuant to subsection A of this section, if granted, shall state on its face the name of the person to whom it is granted, the expiration date, and the address of the sexually oriented business. The employee shall keep the license on the employee’s person at all times while engaged in employment or performing services on the sexually oriented business premises so that said license may be available for inspection upon lawful request.

E. If application is made for a sexually oriented business license, the town clerk shall approve or deny issuance of the license within 45 days of receipt of the completed application. The failure of the town or a particular town official or agency to timely act shall result in the waiver by the town of any requirement under this chapter as applied to that particular town official or agency. The town clerk shall issue a license to an applicant unless it is determined that one or more of the following findings is true:

1. An applicant has failed to provide the information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form;

2. An applicant is under the age of 18 years;

3. An applicant has been denied a license by the town to operate a sexually oriented business within the preceding 12 months, or applicant’s license to operate a sexually oriented business has been revoked within the preceding 12 months;

4. An applicant is overdue in payment to the town in taxes, fees, fines, or penalties assessed against or imposed upon him/her in relation to any business;

5. An applicant has been convicted of a specified criminal activity;

6. The premises to be used for the sexually oriented business have not been approved by the health department, fire department, and the building department as being in compliance with applicable laws and ordinances;

7. The premises to be used for the sexually oriented business are located within 1,500 feet of any residential zone, single- or multiple-family dwelling, family-oriented entertainment business, religious use, park or school;

8. The premises to be used for the sexually oriented business are located within 1,500 feet of either any other sexually oriented business licensed under this chapter or any other sexually oriented business that would be licensed under this chapter if it were located with the town limits;

9. The license fee required under this chapter has not been paid; or

10. An applicant of the proposed establishment is in violation of or is not in compliance with one or more of the provisions of this chapter.

F. A license issued pursuant to subsection E of this section, 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 STC 5.30.030 classification for which the license is issued. The license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time.

G. A sexually oriented business license shall issue for only one classification, as set forth in STC 5.30.030. Each classification operating within the same establishment and wholly owned by that establishment requires a separate license.

H. In the event that the town clerk determines that an applicant is not eligible for a sexually oriented business license, the applicant shall be given notice in writing of the reasons for the denial within 45 days of the receipt of the completed application by the town clerk; provided, that the applicant may request, in writing at any time before the notice is issued, that such period be extended for an additional period of not more than 10 days in order to make modifications necessary to comply with this chapter.

I. Each license issued pursuant to this section shall be subject to annual renewal upon the written application of the applicant and a finding by the town clerk that the applicant has not been convicted of any specified criminal activity, or committed any act during the existence of the previous license which would be grounds to deny the initial license application. The decision whether to renew a license shall be made within 30 days of receiving the completed application. The renewal of a license shall be subject to the fee as set forth in STC 5.30.070. Nonrenewal of a license shall be subject to appeal as set forth in this chapter. [Ord. 2019-137 § 1; Ord. 2015-105 § 1; Ord. 2002-02; prior code § 11-6-6.]

5.30.070 Fees.

The annual fee for a new sexually oriented business license is set forth in Chapter 3.10 STC, whether new or renewal, except as noted herein. The annual fee as set forth in Chapter 3.10 STC is required for a sexually oriented business employee license, whether new or renewal. The annual fee as set forth in Chapter 3.10 STC is required for a renewal sexually oriented business license or for a license for a second classification of a sexually oriented business operated within the same establishment as the primary application or license where no modifications to the premises or the primary application are required. These fees are to be used to pay for the cost of the administration and enforcement of this chapter. The fees are nonrefundable and may not be prorated for a license period of less than one year. The fee requirements under this chapter shall not result in the suspension, nonrenewal or revocation of a license pursuant to this chapter if the applicant or licensee makes full payments within 15 days of being notified of the fee requirements. [Ord. 2019-137 § 1; Ord. 2008-07 § 9; Ord. 2002-02; prior code § 11-6-7.]

5.30.080 Inspection.

A. An applicant or licensee shall permit representatives of the police department, health department, fire department, building department, or other town, state or federal departments or agencies to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law, at any time it is occupied or open for business. Such inspection shall be limited to: visual assessment of the activities conducted in areas in accord with the provisions of this chapter; areas to which patrons have access or are allowed access; requests for inspection of the licenses required under this chapter; and requests for identification of those individuals who reasonably appear to be under the age of 18.

B. It shall be unlawful for an applicant, licensee or employee of a sexually oriented business to refuse to permit law enforcement officers or any other agent allowed by this section to inspect the premises at any time the premises are occupied or open for business.

C. The provisions of this section do not apply to areas of an adult motel that are currently being rented for use as temporary or permanent habitation. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-8.]

5.30.090 Expiration of license.

A. Each license shall expire on July 31st of each year and may be renewed only by submitting a renewal application to the town. Application for renewal shall be made at least 30 days before the expiration date.

B. If the town clerk denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial. Notwithstanding the provisions of this section, in the event a licensee appeals the nonrenewal of a license, the status quo immediately prior to the nonrenewal shall be maintained throughout the pendency of the appeal. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-9.]

5.30.100 Suspension.

A. The town clerk shall issue a notice and order of suspension, suspending a license for a period not to exceed 30 days, if the town clerk determines that the licensee or an employee of the licensee has:

1. Violated or is not in compliance with any section of this chapter;

2. Operated or performed services in a sexually oriented business while intoxicated by the use of alcoholic beverages or controlled substances;

3. Refused to allow prompt inspection of the sexually oriented business premises as authorized by this chapter; or

4. Knowingly or intentionally permitted gambling by any person on the sexually oriented business premises.

B. The notice and order of suspension shall become effective within 10 days after issuance unless the licensee appeals the suspension of a license. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-10.]

5.30.110 Revocation.

A. The town clerk shall issue a notice and order of revocation, revoking a license issued pursuant to this chapter if any of the following occur:

1. A cause of license suspension occurs and the license has been suspended within the preceding 12 months;

2. The town clerk determines that a licensee knowingly or intentionally gave false or misleading information in the material submitted during the application process;

3. A licensee, or a person with whom the licensee resides, is convicted of a specified criminal activity on a charge that was pending prior to the issuance of the license;

4. A licensee, subsequent to licensing, is convicted of a specified criminal activity;

5. A licensee knowingly or intentionally permits the possession, use, or sale of controlled substances on the premises;

6. A licensee knowingly or intentionally permits the sale, use, or consumption of alcoholic beverages on the premises;

7. A licensee knowingly or intentionally permits prostitution on the premises;

8. A licensee knowingly or intentionally operates the sexually oriented business during a period of time when the licensee’s license was suspended;

9. A licensee knowingly or intentionally permits any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sexual conduct to occur in or on the licensed premises;

10. A licensee knowingly or intentionally is delinquent in payment to the town, county or state for any taxes or fees;

11. A licensee knowingly or intentionally permits a person under 18 years of age to enter the establishment;

12. A licensee knowingly or intentionally attempts to sell his or her business license, or has sold, assigned, or transferred ownership or control of the sexually oriented business to a nonlicensee; or

13. A licensee knowingly or intentionally permits a person or persons to engage in specified sexual activities on the premises of the sexually oriented business.

B. When the town clerk revokes a license, the revocation shall continue for one year, and the licensee shall not be issued a sexually oriented business license for one year from the date revocation becomes effective. If, subsequent to revocation, the town determines that the basis for the revocation has been corrected or abated, the applicant shall be granted a license if at least 90 days have elapsed since the date the revocation became effective.

C. The notice and order of revocation shall become effective within 10 days after issuance unless the licensee appeals the suspension of a license. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-11.]

5.30.120 Administrative appeal.

Repealed by Ord. 2012-062. [Ord. 2002-02; prior code § 11-6-12.]

5.30.130 Judicial review.

Repealed by Ord. 2012-062. [Ord. 2002-02; prior code § 11-6-13.]

5.30.140 Change of employment.

A. An establishment operator covered by this chapter shall keep and maintain an up-to-date register of all employees including each employee’s name, address, age, sex and duties. The licensee must notify the town clerk in writing within 15 days of hiring any attendant or employee.

B. An establishment operator covered by this chapter must notify the town clerk in writing within 15 days of any change of licensed employees employed at the establishment.

C. An employee covered by this chapter must notify the town clerk in writing within 15 days of any change in the employee’s place of employment from one establishment covered by this chapter to another. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-14.]

5.30.150 Sale, transfer or expansion.

A. Upon the sale or transfer of a substantial interest in a sexually oriented business, the license therefor shall be null and void, unless the transaction was approved in advance by the town clerk, under the application procedure of this chapter. An original application shall be made by any person, association, firm or corporation desiring to own or operate the establishment upon its transfer.

B. An establishment licensee shall submit, upon sale or transfer of any interest in an existing sexually oriented business, or any enlargement or expansion of the place of business of a sexually oriented business, new certifications of inspection as required of original applicants by this chapter. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-15.]

5.30.160 Notices.

A. Any notice required or permitted to be given by the town clerk or any other town office, division, department or other agency under this chapter to any applicant, operator or owner of a sexually oriented business may be given either by personal delivery or by certified United States mail, postage prepaid, return receipt requested, addressed to the most recent address as specified in the application for the license, or any notice of address change that has been received by the town clerk. Notices mailed as above shall be deemed given upon their deposit in the United States mail. In the event that any notice given by mail is returned by the postal service, the town clerk or the town clerk’s designee shall cause it to be posted at the principal entrance to the establishment.

B. Any notice required or permitted to be given to the town clerk by any person under this chapter shall not be deemed given until and unless it is received in the office of the town clerk.

C. It shall be the duty of each owner who is designated on the license application and each operator to furnish notice to the town clerk in writing of any change of residence or mailing address within 10 days of such change. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-16.]

5.30.170 Reserved.

[Ord. 2019-137 § 1; prior code § 11-6-17.]

5.30.180 Additional regulations for escort agencies.

A. An escort agency shall not employ any person under the age of 18 years; neither shall any person who is under the age of 18 be employed or act as an escort.

B. A person shall not act as an escort or agree to act as an escort for any person under the age of 18 years; neither shall an escort agency arrange for an escort for any person under the age of 18 years. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-18.]

5.30.190 Additional regulations for nude model studios.

A. A nude model studio shall not employ any person under the age of 18 years.

B. A person under the age of 18 years shall not appear semi-nude or in a state of nudity in or on the premises of a nude model studio.

C. A person shall not appear in a state of nudity, or knowingly allow another to appear in a state of nudity, in an area of a nude model studio premises which can be viewed from the 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 and containing a partition to prevent visibility into the studio. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-19.]

5.30.200 Solicitation of gratuity prohibited.

An employee of a sexually oriented business, while nude or semi-nude, shall not solicit any gratuity from any patron or customer on the sexually oriented business premises, nor shall any patron or customer pay or give any gratuity to any employee who appears in a state of nudity or semi-nudity on the sexually oriented business premises. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-20.]

5.30.210 Regulations pertaining to exhibition of sexually explicit films and videos.

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 150 square feet of floor space, a film, video cassette, or other video reproduction, that depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:

A. Upon application for a sexually oriented business 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 32 square feet of floor area. The diagram shall also designate the place at which the business license 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 inches. The town clerk 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.

B. The applicant shall swear under oath that the application is true and correct.

C. No alteration in the configuration or location of a manager’s station may be made without the prior approval of the town clerk or the town clerk’s designee.

D. It is the duty of the owner and operator of the premises to ensure that at least one employee is on duty and situated in each manager’s station at all times that any patron is present inside the premises.

E. The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager’s station of the entire area of the premises to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may neither contain nor be surveilled by video reproduction equipment. If the premises have two or more designated manager’s stations, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of the entire area of the premises to which any patron is permitted access for any purpose, excluding restrooms, 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.

F. It shall be the duty of the operator, and it shall also be the duty of any agents and employees present in the premises, to ensure that the view area specified in subsection E of this section remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area of the premises that has been designated as an area in which patrons will not be permitted, as designated in the application filed pursuant to subsection A of this section.

G. No viewing room may be occupied by more than one person at any time.

H. 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 foot-candles as measured at the floor level.

I. It shall be the duty of the operator, and it shall also be the duty of any agents and employees present in the premises, to ensure that the illumination described above is maintained at all times that any patron is present in the premises.

J. No licensee shall allow an opening of any kind to exist between viewing rooms or booths.

K. No person shall make any attempt to make an opening of any kind between the viewing booths or rooms.

L. The operator of the sexually oriented business shall, during each business day, inspect the walls between the viewing rooms or booths to determine if any openings or holes exist. No licensee or employee of a sexually oriented business may permit a patron to occupy a viewing room or booth containing any openings or holes allowing viewing between two or more booths.

M. The operator of the sexually oriented business shall cause all floor coverings in viewing booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting.

N. The operator of the sexually oriented business 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 48 inches of the floor. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-21.]

5.30.220 Exterior portions of sexually oriented businesses.

A. An owner or operator of a sexually oriented business shall not allow the merchandise or activities of the establishment to be visible from a point outside the establishment.

B. An owner or operator of a sexually oriented business shall abide by the provisions of this chapter regulating the content of signs.

C. An owner or operator of a sexually oriented business shall not allow exterior portions of the establishment to be painted any color other than a single achromatic color. This provision shall not apply to a sexually oriented business if the following conditions are met:

1. The establishment is a part of a commercial multi-unit center;

2. The exterior portions of each individual unit in the commercial multi-unit center, including the exterior portions of the business, are all painted the same color as one another or are painted in such a way so as to be a component of the overall architectural style or pattern of the commercial multi-unit center; but

3. Nothing in this chapter shall be construed to require the painting of an otherwise unpainted exterior portion of a sexually oriented business. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-22.]

5.30.230 Signage.

Repealed by Ord. 2019-137. [Ord. 2002-02; prior code § 11-6-23.]

5.30.240 Sale, use, or consumption of alcoholic beverages prohibited.

The sale, use, or consumption of alcoholic beverages on the premises of a sexually oriented business is prohibited. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-24.]

5.30.250 Persons younger than 18 prohibited from entry – Attendant required.

A. An owner or operator of a sexually oriented business shall not allow a person who is younger than 18 years of age to enter or be on the premises of a sexually oriented business at any time the sexually oriented business is open for business.

B. It shall be the duty of the operator of each sexually oriented business to ensure that an attendant is stationed at each public entrance to the sexually oriented business at all times during such sexually oriented business’s regular business hours. It shall be the duty of the attendant to prohibit any person under the age of 18 years from entering the sexually oriented business. It shall be presumed that an attendant knew a person was under the age of 18 unless such attendant asked for and was furnished:

1. A valid operator’s, commercial operator’s, or chauffeur’s driver’s license; or

2. A valid personal identification issued by the state of Arizona reflecting that such person is 18 years of age or older. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-25.]

5.30.260 Hours of operation.

No sexually oriented business, except for an adult motel, may remain open at any time between the hours of 1:00 a.m. and 8:00 a.m. on weekdays and Saturdays, and 1:00 a.m. and 12:00 p.m. on Sundays. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-26.]

5.30.270 Applicability to existing businesses.

The provisions of this chapter shall apply to the activities of all persons and sexually oriented businesses described herein, whether such business or activities were established or commenced before, on or after the effective date of the ordinance codified in this chapter, except that the requirements that sexually oriented businesses be separated from certain types of land uses shall not apply to businesses existing on the effective date of the ordinance codified in this chapter. For purposes of this section, a use shall be considered existing or established if it is in existence as of January 28, 2002. [Ord. 2019-137 § 1; Ord. 2002-02; prior code § 11-6-27.]

5.30.280 Violations, penalty and abatement.

A. It shall be unlawful for a person having a duty under this chapter to knowingly fail to fulfill that duty.

B. A person who violates any provision of this chapter is guilty of a class one misdemeanor.

C. In addition to prosecution for a criminal violation of this chapter, the operation of a sexually oriented business without a valid license shall constitute a nuisance and the town attorney may file an action in a court of competent jurisdiction against a person or entity operating or causing to be operated such business for injunctive relief or to abate the nuisance arising out of violation of this chapter. [Ord. 2019-137 § 1; Res. 2002-04; Ord. 2002-02; Ord. 1996-11; prior code § 11-6-28.]

5.30.290 Occupational licensing regulation.

Occupational licenses are issued pursuant to ARS 9-842. [Ord. 2019-137 § 1.]