HomeMy WebLinkAbout95-159
'-
\~f). p~,
\\1'
.
.
5
MICROFILMED
INDEXED
RESOLUTION NO. 95-159
A RESOLUTION AMENDING THE MOHAVE COUNTY ZONING ORDINANCE TO
REGULATE SEXUALLY ORIENTED BUSINESSES BY TIME, PLACE AND MANNER.
WHEREAS, at the special meeting of the Board of Supervisors held on April 17, 1995, a
public hearing was conducted to determine whether an amendment to the Mohave County Zoning
Ordinance to regulate sexually oriented businesses should be approved; and
WHEREAS, sexually oriented businesses in the unincorporated areas of Mohave County
require special regulation in order to protect and preserve the health, safety and welfare of the
citizens of the County; and
WHEREAS, it is recognized that sexually oriented businesses, due to their nature, have
serious objectional operational characteristics, particularly when they are operating in close
proximity to each other, thereby contributing to crime, lower property values, urban blight and
downgrading of the quality of life in the adjacent area; and
WHEREAS, the County has considered, in part, each of the following matters: (a) areas
within close walking distance of single and multiple family dwellings should be free of sexually
oriented business uses; (b) areas where children could be expected to walk, patronize, or frequent
should be free of sexually oriented business uses; (c) sexually oriented business uses should be
located in areas of the County which are not in close proximity to residential uses, churches, parks,
or other public facilities and schools; (d) sexually oriented business land use should be regulated by
zoning to separate it from other incompatible uses just as any other land use should be separated
from uses with characteristics different from itself; (e) citizens of the County are concerned about
the adverse impact and the character and quality of the County in the event that sexually oriented
business land uses are located within close proximity to residential uses, churches, parks, and other
public facilities, and schools, thus reducing property values and tax revenues to the County; and
WHEREAS, from review of other cities' studies and testimony from its own citizens there
is convincing documented evidence that sexually oriented businesses have a deleterious effect on
both existing businesses around them and the surrounding residential areas adjacent to them, causing
among other adverse secondary effects, increased crime and downgrading of property values; and
WHEREAS, zoning is a legitimate, reasonable means of accountability to insure that
sexually oriented businesses comply with reasonable regulations and are located in places which
minimize the adverse secondary effects which may accompany the operation; and
.
.
RESOLUTION NO. 95-159
Page 2
PAGE 2 Of 11
;K 2559 ~G 958 (F~E~95-218~)
WHEREAS, the County recognizes the possible harmful effects on children and minors from
exposure to the effects of sexually oriented businesses, and the need to separate such businesses from
areas where children tend to frequent; and
WHEREAS, the County desires to minimize and control adverse secondary effects and
thereby protect the health, safety and welfare of the citizens; protect the citizens from increased
crime; preserve the quality of life; preserve the property values and the character of surrounding
neighborhoods; and deter the spread of urban blight; and
WHEREAS, the County has considered the decisions of the United States Supreme Court
regarding local regulation of sexually oriented businesses, including but not limited to, Young v.
American Mini-Theatres Inc., 427 U.S. 50 (1976) reh. denied 429 u.s. 873; Renton v. Playtime
Theaters, 475 U.S. 41 (1986) reh. denied 475 U.S. 1132; FW/PBS. Inc. v. Dallas, 493 U.S. 215
(1990); and Barnes v. Glen Theatre, 501 U.S. 560, I] 1 S. Ct. 2456 (June 21,1991); and City of
National City v. Wiener. et aI, 3 Cal.4th 832 (1992) (as modified Jan. 21, 1993). Topanga Press.
Inc.. et a] v City of Los Angeles, 93 D.A.R. 3585 (March 22, 1993) 93 D.A.R. 5261 (as amended
Apr. 27, ]993); and
WHEREAS, the County, consistent with sale and consumption of alcohol and outside
advertising limitations, further finds that restricted hours of operation will further prevent the adverse
secondary effects of sexually oriented businesses; and
WHEREAS, it is not the intent of this amendment to suppress any speech activities protected
by the First Amendment, but to enact a content neutral amendment which addresses the adverse
secondary effects of sexually oriented businesses; and
WHEREAS, it is not the intent of the County to condone or legitimize the distribution of
obscene material, and the County recognizes that state law prohibits the distribution of obscene
materials and expects and encourages state enforcement officials to enforce state obscenity statutes
against such illegal activities in Mohave County; and
WHEREAS, the notice was published in the Kingman Daily Miner, a newspaper of general
circulation in Kingman, Mohave County, Arizona, April 2, 1995, and posted on March 31,1995, as
required by Arizona Revised Statutes and the Mohave County Zoning Regulations; and
WHEREAS, at the public hearing before the Mohave County Planning and Zoning
Commission on February 8, 1995, the Commission recommended, APPROVAL of an amendment
to the Mohave County Zoning Ordinance by adding Section 33 as follows:
.
.
RESOLUTION NO. 95-159
Page 3
33.1. PURPOSE AND INTENT.
It is the purpose and intent of this Ordinance to regulate sexually oriented businesses to promote the
health, safety, morals, and general welfare of the citizens of Mohave County and to establish
reasonable and uniform regulations to prevent any deleterious location and concentration of sexually
oriented businesses within the County, thereby reducing or eliminating the adverse secondary effects
from such sexually oriented businesses. The provisions of this ordinance have neither the purpose
nor effect of imposing a limitation or restriction on the content of any communicative materials,
including sexually oriented materials. Similarly, it is not the intent nor effect of this ordinance 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 ordinance to condone or legitimize the
distribution of obscene material.
~AGE 3 OF 11
BK 2559 P6 959 (FEEt95-21889l
33.2. DEFINITIONS.
For the purposes of this section, certain terms and words are defined as follows:
A. "Sexually oriented businesses" are those businesses defined as follows:
(1) "Adult arcade" means an establishment where, for any form of consideration,
one or more still or motion picture projectors, slide projectors, or similar machines,
or other image producing machines, for viewing by five or fewer persons each, are
regularly used to show films, motion pictures, video cassettes, slides, or other
photographic reproductions which are characterized by the depiction or description
of "specified sexual activities" or "specified anatomical areas".
(2) "Adult Bookstore", "Adult Novelty Store" or "Adult Video Store" means a
commercial establishment which has as a significant or substantial portion of its
stock-in-trade or derives a significant or substantial portion of its revenues or devotes
a significant or substantial portion of its interior business or advertising to the sale,
rental for any form of consideration, of anyone or more of the following:
(a) Books, magazines, periodicals or other printed matter, or photographs,
films, motion pictures, video cassettes, slides, or other visual representations
which are characterized by the depiction or description of "specified sexual
activities" or "specified anatomical areas".
(b) Instruments, devices, or paraphernalia which are designed for use or
marketed primarily for stimulation of human genital organs or for
sadomasochistic use or abuse of themselves or others.
.
.
RESOLUTION NO. 95-159
Page 4
(c) An establishment may have other principal business purposes that do
not involve the offering for sale, rental or viewing of materials depicting or
describing '"specified sexual activities" or "specified anatomical areas", and
still be categorized as adult bookstore, adult novelty store, or adult video
store. Such other business purposes will not serve to exempt such
establishments from being categorized as an adult bookstore, adult novelty
store or adult video store so long as one of its principal business purposes is
offering for sale or rental, for some form of consideration, the specified
materials which depict or describe "specified anatomical areas" or "specified
sexual activities".
PAGE {OF 11
BK 2559 ~G 960 (F~E~95-Z!889)
(3) "Adult cabaret" means a nightclub, bar, restaurant, "bottle club", or similar
commercial establishment, whether or not alcoholic beverages are served, which
regularly features: (a) persons who appear semi-nude or in a state of semi-nudity; (b)
live performances which are characterized by the exposure of "specified anatomical
areas" or by pictures, video cassettes, slides, or other photographic reproductions
which are characterized by the depiction or description of "specified sexual
activities" or "specified anatomical areas".
(4) "Adult motel" means a motel, hotel or similar commercial establishment which: (a)
offers public accommodations, for any form of consideration, which provides patrons
with closed-circuit television transmissions, films, motion pictures, video cassettes,
slides or other photographic reproductions which are characterized by the depiction
or description of "specified sexual activities" or "specified anatomical areas" and
which advertises the availability of this sexually oriented type of material by me,,:1 S
of a sign visible from the public right-of-way, or by means of any off-premises
advertising including but not limited to newspapers, magazines, pamphlets or
leaflets, radio or television; or (b) offers a sleeping room for rent for a period of time
less than ten hours; or (c) allows a tenant or occupant to sub-rent the sleeping room
for a time period of less than ten hours.
(5) "Adult motion picture theater" means a commercial establishment where films,
motion pictures, video cassettes, slides or similar photographic reproductions which
are characterized by the depiction or description of "specified sexual activities" or
"specified anatomical areas" are regularly shown for any form of consideration.
(6) "Adult theatre" means a theater, concert hall, auditorium, or similar commercial
establishment which, for any form of consideration, regularly features persons who
appear in a state of semi-nudity or Jive performances which are characterized by
exposure of "specified anatomical areas" or by "specified sexual activities".
(7) "Escort" means a person who, for any form of 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.
.
.
RESOLUTION NO. 95-159
Page 5
(8) "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.
PAGE ~ OF 11.
BK 2~59 P6 961 (FEE~95-21889)
(9) "Massage parlor" means any place where, for any form of consideration or
gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic
treatments, or any other treatment manipulation of the human body which occurs as
a part of or in connection with "specified sexual activities", or where any person
providing such treatment, manipulation, or service related thereto, exposes his or her
"specified anatomical areas". The definition of sexually oriented businesses shall not
include the practice of massage in any licensed hospital, nor by a licensed hospital,
nor by a licensed physician, surgeon, chiropractor or osteopath, nor by any nurse or
technician working independently or under the supervision of a licensed physician,
surgeon, chiropractor or osteopath, nor by trainers for any amateur, semiprofessional
or professional athlete or athletic team or school athletic program or any massage
therapy as defined in this ordinance.
(10) "Semi-Nude or Nude Model Studio" means any place where a person, who regularly
appears in a state of semi-nudity or nudity, is provided for money or any form of
consideration to be observed, sketched, drawn, painted, sculptured, photographed,
or similarly depicted by other persons. It shall be considered an exemption from this
definition if a person appearing in a state of nudity did so in a modeling class
operated:
(a) by a proprietary school, licensed by the State of Arizona; a college,
junior college, or university supported entirely or partly by taxation;
(b) by 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
(c) in a structure:
(i) 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
(ii) where, in order to partICIpate in a class, a student must enroll
at least three days in advance of the class; and
(iii) where no more than one nude model is on the premises at any
one time.
.
.
RESOLUTION NO. 95-159
Page 6
(II) "Sexual encounter establishment" means a business or commercial establishment that,
as one of its primary business purposes, offers for any form of consideration a place
where two or more persons may congregate, associate, or consort for the purpose of
"specified sexual activities" when one or more of the persons is semi-nude. The
definition of sexually oriented businesses shall not include an establishment where
a medical practitioner, psychologist, psychiatrist, or similar professional person
licensed by the state engages in medically approved and recognized sexual therapy.
PAGE {, Of 11
BK 2559 PG 962 (FEE;95-21889l
B. The "establishment" means and includes any of the following:
(1) The opening or commencement of any such business as a new business;
(2) The conversion of an existing business, whether or not a sexually oriented
business, to any of the sexually oriented businesses defined in this chapter;
(3) The addition of any of the sexually oriented businesses defined in this chapter
to any other existing sexually oriented business; or
(4) The relocation of any such sexually oriented business.
C. "Massage therapy means nonsexual, therapeutic message offered by an individual that is
licensed by a professionally recognized organization such as National Certification Board
from Therapeutic Massage & Bodywork or an establishment licensed, accredited or belongs
to a nationally recognized professional organization."
D. "Nudity or State of Nudity" means: (a) the appearance of human bare buttocks, anus,
male genitals, female genitals, or the areola or nipple of the female breast; or (b) a state of
dress which fails to opaquely and fully cover a human buttocks, anus, male or female
genitals, pubic region or areola or nipple of the female breast.
E. "Public building" means any building owned, leased or held by the United States, the
state, the county, the city, any special district, school district, or any other agency or political
subdivision of the state or the United States, which building is used for governmental
purposes.
F. "Public park" or "recreation area" means public land which has been designated for
park or recreational activities including but not limited to a park, playground, nature trails,
swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrianlbicycle paths,
open space, wilderness areas, or similar public land within the county which is under the
control, operation, or management of the county park and recreation authorities.
G. "Religious institution" means any church, synagogue, mosque, temple or building
which is used primarily for religious worship and related religious activities.
.
.
RESOLUTION NO. 95-159
Page 7
H. "School" means any public or private educational facility including but not limited
to child day care facilities, nursery schools, preschools, kindergartens, elementary schools,
primary schools. intermediate schools, junior high schools, middle schools, high schools,
vocational schools, secondary schools, continuation schools, special education schools,
junior colleges, and universities. School includes the school grounds, but does not include
the facilities used primarily for another purpose and only incidentally as a school.
PAGE ,. OF 11
BY. 2~5~ PG 963 (FEE#9~-21889)
1. "Person" means an individual, proprietorship, partnership, corporation, association,
or other legal entity.
J. "Residential District or Use" means a single family, duplex, townhouse, multiple family, or
mobile park or subdivision and campground as defined in the Mohave County Zoning
Ordinances.
K. "Specified anatomical areas", as used in this division, means and includes any of the
following:
(I) Less than completely and opaquely covered human genitals, pubic region, buttocks,
anus, or female breasts below a point immediately above the top of the areolae; or
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely
covered.
L. "Specified Sexual Activities", as used in this division, means and includes any of the
following:
(1) The fondling or other intentional touching of human genitals, pubic regIOn,
buttocks, anus, or female breasts;
(2) Sex acts, normal or perverted, actual or simulated, including intercourse, oral
copulation, or sodomy;
(3) Masturbation, actual or simulated; or
(4) Human genitals in a state of sexual stimulation, arousal or tumescence;
(5) Excretory functions as part of or in connection with any of the activities set
forth in subdivisions (1) through (4) of this subsection.
M. "Semi-nude" means a state of dress in which clothing covers no more than the genitals, pubic
region and areolae of the female breast, as well as portions of the body covered by supporting
straps or devices.
N. "Significant or substantial portion" means more than] 0 percent.
.'
.
.
RESOLUTION NO. 95-159
Page 8
33.3. ESTABLISHMENT AND CLASSIFICATION OF BUSINESSES REGULATED.
The establishment of a Sexually Oriented Business shall be permitted only in C2H, CM, CMO, M
and MX Zones and shall be subject to the following restriction:
A. No person shall cause or permit the establishment of any sexually oriented businesses, as
defined above, within 1,000 feet of another such business or within 1,000 feet of any
religious institution, school, boys' club, girls' club, or similar existing youth organization, or
public park or public building, or within 1,000 feet of any property zoned for residential use
or used for residential purposes, except as follows:
If the depth of the property is such that a building cannot reasonable located on the site and
meet the 1000 ft separation, the sexually oriented business may locate within 300 ft. of any
property zoned for residential use or used for residential purposes when a six-foot block wall
is constructed that obscures the view between the uses and restricts direct access from the
sexually oriented business to the residential property is built.
33.4. MEASUREMENT OF D1ST At\lCE.
As regarding Section 3, paragraph A, distance between any two sexually oriented businesses shall
be measured in a straight line, without regard to intervening structures, from the closest exterior
structural wall of each business. The distance between any sexually oriented business and any
religious institution, public or private elementary or secondary school, boys club, girls club, or
similar existing youth organization, or public park or public building or any properties zoned for
residential use or used for residential purposes shall also be measured in a straight line, without
regard to intervening structures or objects from the nearest portion of the building or structure used
as part of the premises where the sexually oriented business is conducted, to the nearest property line
of the premises of a religious institution, public or private elementary or secondary school, boys club,
girls club, or similar existing youth organization, or public park or public building or any properties
zoned for residential use or used for residential purposes.
33.5. LOCATION OF SEXUALLY ORIEl'.'TED BUSINESSES.
The Mohave County Zoning Ordinance hereby requires that sexually oriented businesses shall be
permitted only in Zones as provided in Section 33.3. Permits for sexually oriented businesses shall
be required and governed by the procedures and policies specified in Section 8 et. seq. of this
ordinance.
PAGE 8 OF 11
BK 2559 PG 964 (FEE~95-21889l
, .
. ,
.'
.
.
,.
RESOLUTION NO. 95-159
Page 9
33.6. REGULATIONS GOVERNING EXISTING SEXUALLY ORIENTED BUSINESSES.
A. Any sexually oriented businesses lawfully operating on May 17, 1995, that is in violation of
this section shall be deemed a non-conforming use. Non-conforming uses shall be governed
by Section 27.E of this Ordinance. If two or more sexually oriented businesses are within
1,000 feet of one another and otherwise in a permissible location, the sexually oriented
business which was first established and continually operating at the particular location is the
conforming use and the later established business(es) is non-conforming.
PAGE ., 0\" 11
8K 2~~9 P6 965 (FEE~95-21SS9)
B. A sexually oriented business lawfully operating as conforming use is not rendered a
non-conforming use by the location, subsequent to the grant of a sexually oriented business
permit, of a church, public or private elementary or secondary school, public park, public
building, residential district, or residential lot within 1,000 feet of the sexually oriented
business.
33.7. REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR
VIDEOS IN VIDEO BOOTHS.
A. A person who operates or causes to be operated a sexually oriented business, other than a
sexually oriented motel/hotel 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 which
depicts specified sexual activities or specified anatomical areas, shall comply with the
following requirements:
(1) Upon application for a sexually oriented business permit, the application shall be
accompanied by a diagram of the premises showing a plan thereof specifying the
location of all overhead lighting fixtures and designating any portion of the premises
in which patrons will not be permitted. 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 and should be
drawn to a designated scale with marked dimensions sufficient to show the various
internal dimension of all areas of the interior of the premises to an accuracy of plus
or minus six inches.
(2) The application shall be sworn to be true and correct by the applicant.
(3) No viewing room may be occupied by more than one person at anyone time. A
door may be attached or installed on any viewing room.
(4) The premises shall be equipped with overhead lighting fixtures of sufficient intensity
to illuminate every place to which patrons are permitted access and an illumination
of not less than two foot candle as measured at the floor level.
.-
.' .
. ,
.-
.
.
."
RESOLUTION NO. 95-159
Page 10
(5) It shall be the duty of the owners and operator and it shall also be the duty of any
agents and employees present on the premises to insure that the illumination
describcd above is maintained at all times that any patron is present on the premises.
33.8. ADVERTISING REGULATIONS.
A. The permittee shall not allow any depiction of specified sexual activities or specified
anatomical areas to be visible from the exterior of the premises.
B. All off-street parking areas and premise entries of the sexually oriented business shall be
illuminated from dusk to closing hours of operation with a lighting system which provides
an average maintained horizontal illumination of one foot candle of light on the parking
surface and/or walkways. This required lighting level is established in order to provide
sufficient illumination of the parking areas and walkways serving the sexually oriented
business for the personal safety of patrons and employees. The lighting shall be shown on
the required sketch or diagram of the premises.
PAGE 10 OF 11
BK 2f~9 PG 966 !FEE~95-21889)
33.9. HOURS OF OPERATION.
It shall be unlawful to operate, permit or cause to be operated a sexually oriented business between
the hours of 1:00 AM and 6:00 AM of any particular day.
33.10. SEVERABILITY.
If any section, subsection or clause of this ordinance shall be deemed to be unconstitutional or
otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected
thereby.
33.11. CONFLICTING ORDINANCE REPEALED.
If two or more ordinance provisions are or appear to be in conflict, the more restrictive shall apply.
33.12. EFFECTIVE DATE.
This ordinance shall be in full force and effect from and after 30 days following Board of
Supervisors adoption.
NOW THEREFORE BE IT RESOLVED, that the Board of Supervisors, at their special
meeting on April 17, 1995, APPROVED an Amendment to the Mohave County Zoning Ordinance
as recommended by the Mohave County Planning and Zoning Commission and outlined herein,
except the following:
. .
- .
.. .
, "
.
.
..
RESOLUTION NO. 95-159
Page 11
1. In Scctions 33.1, 33.2(9), 33.10 and 33.] 2 all references to ordinance shall read
section.
2. Section 33.11 shall read:
33.11 CONFLICTING SECTIONS
ATTEST:
(.~I"th ?::L__ /-.:.~,
Pat Chastain, Clerk
MOHA VE COUNTY BOARD OF SUPERVISORS
,~-Y/l7'-; ,?;(-4.e'"i
. _ , 0/
Pat Holt, Chairman
PAGE 11 OF 11
BK 2~5~ P6 ~67 (FEE~~5-2188~)