Chapter 20.35
SEXUALLY ORIENTED BUSINESS USES
Sections:
20.35.010 Purpose, findings, intent and scope.
20.35.020 Consistency with this title—Exceptions—Each business separate.
20.35.040 Sexually oriented business uses—Where permitted.
20.35.050 Chapter provisions not intended towards particular group or class.
20.35.010 Purpose, findings, intent and scope.
A. Purpose. The purpose of requiring standards for sexually oriented businesses is to mitigate the adverse secondary effects caused by such businesses, to maintain compatibility with other land uses and services permitted within the city, and to promote the public health, safety and welfare of the citizens of the city.
B. Findings.
1. There is convincing evidence in the form of studies, court cases, and police records reviewed and considered by the city, on file with the city clerk, that sexually oriented businesses have secondary effects that are deleterious on both existing businesses around them and surrounding residential areas or other sensitive uses adjacent to them, including increased crime, harm to minors, urban blight, diminishment in the quality of residential life, and reduction of property values;
2. Many of the Washington cities represented in the studies reviewed by the city of Shelton have similar community characteristics as the city of Shelton, including the city of Des Moines’ downtown area, the city of Olympia’s downtown area, and the city of Centralia generally; and
3. Regulation of the sexually oriented business industry is necessary because in the absence of such regulation, significant criminal activity has historically and regularly occurred in and around such businesses. This history of criminal activity in the sexually oriented business industry has included prostitution, illegal employment of minors, narcotics trafficking and use, alcoholic beverage law violations, breaches of the peace, tax evasion, and the presence within the industry of individuals with hidden ownership interests, outstanding arrest warrants, and past criminal behavior related to the sexually oriented business industry which may be indicative of intended future conduct;
4. The secondary effects resulting from activities related to sexually oriented businesses have been shown to be detrimental to the public health, safety, morals, and general welfare of the citizens of the city, and, therefore, such activities must be regulated;
5. Close physical proximity between entertainers and patrons during sexually oriented performances facilitates sexual contact, prostitution, and related crimes. Concerns about crime and public sexual activity are legitimate and compelling concerns of the city, which require reasonable regulation of sexually oriented business establishments in order to protect the public health, safety, and general welfare of its citizens;
6. In the absence of regulation, the criminal activities described in subsection (B)(3) and (5) of this section occur whether or not the sale of alcoholic beverages takes place in conjunction with sexually oriented business activities;
7. The location of sexually oriented businesses has been found to create the greatest impact upon specific land uses: residences, parks, playgrounds, day-care facilities, libraries, and places of worship. Other communities have learned that the most effective way to provide protection to these land uses is to buffer them from sexually oriented businesses; and that buffers of up to one thousand five hundred linear feet have proven to be effective in minimizing the impacts of sexually oriented businesses;
8. Existing conditions in Shelton make it impossible to utilize a buffer of one thousand five hundred feet from the types of land uses identified in subsection (B)(7) of this section without rendering all portions of the city off-limits to sexually oriented businesses. Based upon the existing locations of the land uses identified above, a maximum buffer of six hundred fifty feet is possible while allowing for adequate and appropriate areas to locate sexually oriented businesses;
9. Other communities have employed two methods of regulating the location of sexually oriented businesses. The “concentration” method requires such businesses to be located within one general area, to facilitate the city’s ability to regulate their activity. The “dispersal” method requires a specified amount of separation between sexually oriented businesses, in order to minimize the potential cumulative impacts from the location of multiple sexually oriented businesses in close proximity. Each method of regulation has been found to be valid. The “dispersal” method requires several geographic areas of the city to be available for the location of sexually oriented businesses;
10. After noting the locations of existing residences, parks, playgrounds, day-care facilities, libraries, and places of worship in Shelton, and applying a six-hundred-fifty-foot buffer around each such land use, it is found that only one area of the city is adequate and appropriate for the location of sexually oriented businesses. Thus, the use of the “dispersal” method of regulation is found to be not feasible.
C. Intent.
1. The city council desires to minimize and control these adverse secondary effects of sexually oriented businesses and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from increased crime; protect minors from exposure to inappropriate conduct; preserve the property values and character of surrounding neighborhoods and deter the spread of urban blight;
2. It is not the intent of this chapter to suppress any speech activities protected by the First Amendment, but to enact a content neutral ordinance which addresses the secondary effects of sexually oriented businesses through time, place, and manner regulations; and
3. It is not the intent of the city council to condone or legitimize the distribution of obscene material, and the city council recognizes that state and federal law prohibits the distribution of obscene materials and expects and encourages law enforcement officials to enforce obscenity statues against such illegal activities in the city.
D. Scope. The standards established in this chapter apply to all sexually oriented businesses as defined in Section 20.35.030. (Ord. 1921-0518 (part), 2018; Ord. 1647-0805 § 2 (part), 2005)
20.35.020 Consistency with this title—Exceptions—Each business separate.
A. Any sexually oriented business shall be consistent with all applicable requirements of Title 20, Zoning Regulations and any other applicable law, rule or regulation governing the specific proposal.
B. This chapter shall not be construed to prohibit:
1. Plays, operas, musicals, or other dramatic works that are not obscene, as defined in subsection D of this section.
2. Classes, seminars and lectures which are held for serious scientific or educational purposes and which are not obscene.
3. Exhibitions, performances, expressions or dances that are not obscene.
4. Massage businesses operating pursuant to the regulations set forth in Chapter 18.108 RCW.
C. The exceptions in subsection B of this section shall not apply to the sexual conduct defined in Section 20.35.030, or the sexual conduct described in RCW 7.48A.010(2)(b)(ii) and (iii).
D. Whether or not activity is obscene shall be judged by consideration of the following factors:
1. Whether the average person, applying contemporary community standards, would find that the activity taken as a whole appeals to a prurient interest in sex;
2. Whether the activity depicts or describes in a patently offensive way, as measured against community standards, sexual conduct as described in RCW 7.48A.010(2)(b); and
3. Whether the activity taken as a whole lacks serious literary, artistic, political or scientific value.
E. For the licensing provisions of this chapter only, each type of sexually oriented business defined in this chapter which may include, but not be limited to, an adult cabaret, adult panoram, adult theater or adult retail establishment shall constitute a separate sexually oriented business even if operated in conjunction with another sexually oriented business at the same establishment. (Ord. 1647-0805 § 2 (part), 2005)
20.35.030 Definitions.
For purposes of this chapter, the following words and phrases are defined as set forth below:
1. “Adult cabaret” means any commercial premises, including any adult cabaret premises, to which any member of the public are invited or admitted and where an entertainer provides live sexually oriented entertainment to any member of the public.
2. “Adult motion picture theater” means a commercial establishment that shows films, motion pictures, video cassettes, slides, computer generated images, or similar photographic reproductions characterized by the depiction or description of specified anatomical areas or specified sexual activities, and that are not rated G, PG, PG-13, NC-13, NC-17 or R by the Motion Picture Association of America.
3. “Adult panoram” means any commercial establishment which contains one or more devices which, for payment of a fee, membership fee, or any other direct or indirect charge, is used to view, exhibit or display a film or videotape which is distinguished or characterized by an emphasis on “specified anatomical areas” or “specified sexual activities.” All such devices are denominated in this chapter by the terms “panoram” or “panoram device.” The terms “panoram” and “panoram device” do not include games or gambling devices regulated by the state.
4. “Adult panoram premises” means any panoram premises or portion of any premises on which any panoram device is located, and to where members of the public are admitted, and which videotapes, films or similar pictures are displayed which are distinguished or characterized by an emphasis on the depiction, description, simulation or relation to “specified sexual activities” or “specified anatomical areas.” The term “panoram premises” does not include movie or motion picture theaters.
5. “Adult retail establishment” means a retail establishment which has as one of its principal business purposes the sale, exchange, rental, loan, trade, transfer, and/or viewing of merchandise distinguished or characterized by a predominant emphasis on the depiction, description, simulation or relation to “specified sexual activities” or “specified anatomical areas.” The term “merchandise” as used above includes but is not limited to the following: books, magazines, posters, cards, pictures, periodicals, or other printed matter; prerecorded video tapes, discs, film or other such media and instruments, devices, equipment, paraphernalia or other such products which are designed for use in connection with “specified sexual activities.” Such a principal business purpose exists when at least twenty-five percent of the inventory or stock in trade, whether by volume or wholesale value, consists of merchandise distinguished or characterized by an emphasis on the depiction, description, simulation or relation to “specified sexual activities” or “specified anatomical areas,” or where twenty-five percent or more of retail transactions involve such merchandise. An adult retail establishment includes, without limitation, an adult video store, adult bookstore, or adult novelty store, but excludes adult motion picture theaters.
6. “Applicant” means the individual or entity seeking a sexually oriented business premises license, or sexually oriented manager or entertainer license in the city of Shelton.
7. “Applicant control persons” means all owners, officers and managers of the applicant’s business who manage the day to day operations of that business.
8. “Designee” means such city employees or agents as the city manager shall designate to administer this chapter.
9. “Employee” means any and all persons, including managers, entertainers and independent contractors who work in or at or render any services directly related to the operation of any sexually oriented business.
10. “Entertainer” means any person who provides sexually oriented entertainment within an adult cabaret as defined in this section, whether or not a fee is charged or accepted for entertainment.
11. “Liquor” means all beverages defined in RCW 66.04.010.
12. “Manager” means any person who manages, directs, administers or is in charge of the affairs and/or conduct of any portion of any activity involving sexually oriented entertainment occurring at any adult cabaret or adult panoram premises, and includes assistant managers working with or under the direction of a manager to carry out such purposes.
13. “Member of the public” means any customer, patron, club member, or person, other than an employee as defined in this section, who is invited or admitted to a sexually oriented business premises.
14. “Operator” means any person operating, conducting or maintaining a sexually oriented business.
15. “Panoram station” means the portion of any adult panoram premises on which a panoram device is located and where a patron or customer would ordinarily be positioned while watching the panoram device, and is sometimes referred to as a booth or panoram booth.
16. “Person” means any individual, partnership, corporation, trust, incorporated or unincorporated association, marital community, joint venture, governmental entity, or other entity or group of persons however organized.
17. “Sexual conduct” means acts of:
a. Sexual intercourse within its ordinary meaning, occurring upon any penetration, however slight; or
b. Any penetration of the vagina or anus, however slight, by an object; or
c. Any contact between persons involving the sex organs of one person and the mouth or anus or another; or
d. Masturbation, manual or instrumental, of oneself or of one person by another; or
e. Touching of the sex organs or anus, whether clothed or unclothed, of oneself or of one person by another; or
f. Excretory functions as part of, or in connection with any of the activities set forth in this section; or
g. Fondling or other erotic touching of human genitals, pubic region, buttocks, or female breasts of oneself or by another; or
h. Human genitals in a state of sexual stimulation or arousal.
18. “Sexually oriented business” means an adult panoram, adult cabaret, adult retail establishment, adult motion picture theater, or any similar business activity providing sexually oriented entertainment.
19. “Sexually oriented entertainment” means:
a. Any exhibition, film, video, image, performance or dance of any type shown or conducted in a premises where such exhibition, film, video, image, performance, or dance involves a person or image of a person who is unclothed or in such costume, attire, or clothing as to expose any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or wearing any device or covering exposed to view which simulates the appearance of any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or human male genitals in a discernibly turgid state, even if completely and opaquely covered; or
b. Any exhibition, film, video, image, performance or dance of any type shown or conducted in a premises where such exhibition, film, video, image, performance or dance is distinguished or characterized by a predominant emphasis on the depiction, description, simulation or relation to the following specified sexual activities:
i. Human genitals in a state of sexual stimulation or arousal;
ii. Acts of human masturbation, sexual intercourse or sodomy; or
iii. Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast;
c. Any exhibition, performance or dance, shown or performed which is intended to sexually stimulate any member of the public and which is conducted on a regular basis or as a substantial part of the premises activity. This includes, but is not limited to, any such exhibition, performance or dance performed for, arranged with or engaged in with fewer than all members of the public at one time, with separate consideration paid, either directly or indirectly, for such performance, exhibition or dance and which is commonly referred to as table dancing, couch dancing, taxi dancing, lap dancing, private dancing or straddle dancing.
20. “Specified sexual activities” means:
a. Human genitals in a state of sexual stimulation or arousal; or
b. Acts of human masturbation, sexual intercourse or sodomy; or
c. Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast.
21. “Specified anatomical areas” means any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or wearing any device or covering exposed to view which simulates the appearance of any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or human male genitals in a discernibly turgid state, even if completely and opaquely covered. (Ord. 1921-0518 (part), 2018; Ord. 1647-0805 § 2 (part), 2005)
20.35.040 Sexually oriented business uses—Where permitted.
A. Sexually oriented businesses shall be permitted in the GC general commercial district, provided however, that no sexually oriented business may be permitted within six hundred fifty feet of any district allowing residential uses, place of worship, public park, day care facility, community youth center or library, or of any school, public or private, preschool through twelfth grade, existing as of the effective date of the ordinance codified in this chapter. Upon the adoption of the ordinance codified in this chapter a place of worship, public or private school, day care facility, public park, community youth center, residence, or library shall not be permitted to locate within six hundred fifty feet of the area designated for sexually oriented businesses without first obtaining a conditional use permit pursuant to the requirements and standards set forth in Chapter 20.44.
B. The distances described in the preceding subsection shall be a straight, horizontal line, measured from the nearest point of the parcel proposed to be used for a sexually oriented business to the nearest point of the parcel from which the proposed land use is to be separated.
C. All sexually oriented businesses shall comply with the site plan review procedures set forth in Chapter 20.49. (Ord. 1647-0805 § 2 (part), 2005)
20.35.050 Chapter provisions not intended towards particular group or class.
A. It is the purpose of this chapter to provide for and promote the health, safety and welfare of the general public, to protect property values and not to create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefited by the term of this chapter.
B. No provision or any term used in this chapter is intended to impose any duty whatsoever upon the city or any of its officers or employees, for whom the implementation or enforcement of this chapter is discretionary and not mandatory.
C. Nothing contained in this chapter is intended to be nor shall be construed to create or form the basis for any liability on the part of the city, or its officers, employees or agents, for any injury or damage resulting from the failure of any owner, operator, manager or other person in charge of said premises to comply with the provisions of this chapter, or by reason or in consequence of any inspection, notice, order, certificate, permission or approval authorized or issued or done in connection with the implementation or enforcement pursuant to this chapter, or by reason of any action or inaction on the part of the city related in any manner to the enforcement of this chapter by its officers, employees or agents. (Ord. 1647-0805 § 2 (part), 2005)
20.35.060 License required.
No sexually oriented business shall be permitted to operate unless the business, its owner(s), managers, and employees are in full compliance with the licensing requirements set forth in Chapter 5.06. (Ord. 1647-0805 § 2 (part), 2005)