A.
In the development and adoption of this article, it
is recognized that there are some adult businesses which, due to their
very nature, have serious objectionable operational characteristics.
The objectionable characteristics of these uses are further heightened
by their concentration in any one area, thereby having a deleterious
effect upon adjacent areas. It is the purpose of this article to regulate
the location and concentration of adult entertainment establishments,
as herein defined, in order to achieve the following:
(1)
To preserve the character and the quality of life
in the Village of Waverly's neighborhoods and business areas.
(2)
To control such documented harmful and adverse secondary
effects of adult uses on the surrounding areas as decreased property
values, attraction of transients, parking and traffic problems, increased
crime, loss of business for surrounding nonadult businesses, and deterioration
of neighborhoods.
(3)
To restrict minors' access to adult uses.
(4)
To maintain the general welfare and safety for the
Village of Waverly's residents.
B.
It is not the intent nor the effect of this chapter
to restrict or deny access by adults to sexually oriented materials
protected by the First Amendment or to deny access by the distributors
and exhibitors of sexually oriented entertainment to their intended
market; neither is it the intent nor the effect of this chapter to
condone or legitimize the distribution of obscene materials.
The words and phrases set forth below shall
have the meanings respectfully ascribed to them.
Any place to which the public is permitted or invited or
in which coin-operated or slug-operated or electronically, electrically
or mechanically controlled, or by any other method for which a fee
is charged, still- or motion-picture machines, projectors or other
image-producing devices are maintained to show images to an audience,
and where the image is so displayed, distinguished or characterized
by the depicting or describing of specified sexual activities or specified
anatomical areas.
A commercial establishment which, as one of
its principal business purposes, offers for sale or rental for any
form of consideration any one or more of the following:
Books, magazines, periodicals or other printed
matter, or photographs, films, motion-picture videocassettes or video
reproductions, slides, compact discs, computer software, or other
visual representations which depict or described specified sexual
activities or specified anatomical areas; or
Instruments, devices or paraphernalia which
are primarily intended, labeled, designed, advertised or promoted
for use in connection with specified sexual activities.
Alternatively, a commercial establishment may
have other principal business purposes that do not involve the offering
for sale or rental of material depicting or describing specified sexual
activities or specified anatomical areas and still be categorized
as an adult bookstore or adult video store so long as one of its principal
business purposes is the offering for sale or rental for consideration
the specified materials which depict or describe specified sexual
activities or specified anatomical areas.
For purposes of this definition, "principal
business purpose" shall mean 25% or more of any of the following:
The gross profits of the business as a whole
if such business also includes profits from other business purposes.
The number of different titles or kinds of such
merchandise.
The number of copies or pieces of such merchandise.
The amount of floor space devoted to the sale
and/or display of such merchandise.
The amount of advertising which is devoted to
such merchandise, either in print or broadcast media.
A nightclub, bar, restaurant or similar commercial establishment,
with or without a liquor license, which regularly features:
Persons who appear in a state of nudity.
Live performances which are characterized by
the exposure of specified anatomical areas or by specified sexual
activities.
Files, motion pictures, videocassettes, slides
or other photographic reproductions which are characterized by the
depiction or description of specified sexual activities or specified
anatomical areas.
A public or private establishment, or any part thereof, which
presents any of the following entertainments, exhibitions, or services:
topless and/or bottomless dancers; strippers; topless waitressing,
busing or service; topless hair care or massages; service or entertainment
where the servers or entertainers wear only pasties or G-strings or
both; adult arcades, adult bookstores or adult video stores; adult
cabarets; adult motels; adult motion-picture theaters; adult theaters;
escort agencies; nude model studios and sexual encounter centers.
Adult entertainment establishments customarily exclude minors by reason
of age.
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any
form of consideration; provides patrons with closed circuit television
transmissions, films, motion pictures, videocassettes, slides or other
photographic reproductions which are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas; and has a sign visible for the public right-of-way which advertises
the availability of this adult type of photographic productions.
Offers a sleeping room for rent for a period
of time that is less than 10 hours.
Allows a tenant or occupant of the sleeping
room to sublet the room for a period of time that is less than 10
hours.
A commercial establishment where, for any form of consideration,
films, motion pictures, videocassettes, slides or similar graphic
reproductions are displayed which are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas.
A theater, concert hall, auditorium or similar commercial
establishment which regularly features persons who appear in a state
of nudity or live performances which are characterized by the exposure
of specified anatomical areas or by specified sexual activities.
One or more persons who are permitted to view a performance
for valuable consideration of, in or from a public place.
The exposing, placing, posting, exhibiting or in any other
fashion displaying in any location, whether public or private, material
or a performance in such a manner that it may be readily seen and
its contents or character distinguished by normal unaided vision viewing
it from a public place or vehicle.
A person who, for consideration, agrees or offers to act
as a companion, guide or date for any person or who agrees to privately
model lingerie or to privately perform a striptease for another person.
A person or business association who or which furnishes,
offers to furnish or advertises to furnish escorts as one of its primary
business purposes for a fee, tip or other consideration.
Includes any of the following:
The opening or commencement of any sexually
oriented business as a new business;
The conversion of an existing business, whether
or not a sexually oriented business, to a sexually oriented business;
The addition of any sexually oriented business
to any other existing sexually oriented business; and
The relocation of any sexually oriented business.
Any place where a person who appears in state of nudity or
who displays specified anatomical areas is provided to be observed,
sketched, drawn, painted, sculptured, photographed or similarly depicted
by other persons who pay money or any form of consideration.
Uncovered or less than opaquely covered postpubertal human
genital or pubic area, the postpubertal human female breast below
the point immediately above the top of the areola or the covered human
male genitals in discernibly turgid state. For the purpose of this
definition, a female breast is considered if the nipple only or the
nipple and the areola only are covered.
Advertising or propagandizing in, connection with the sale
of material, the offering of a service or the presentation or exhibition
of performance by appealing to the prurient interest of potential
customers.
Any live or reproduced exhibition, including but not limited
to any play, motion-picture film, dance or appearance presented to
or performed before an audience.
Any material or performance is pornography if all of the
following elements are present:
Considered as a whole by the average person
applying the contemporary community standards of the Village of Waverly,
it appeals to the prurient interest.
It depicts, describes or represents, in a patently
offensive way, sexual conduct, as hereinafter defined.
It lacks serious literary, artistic, political
or scientific value. (Pornographic; relating to pornography.)
Any material performance is pornography for minors if all
of the following elements are present:
Considered as a whole by the average person
applying the contemporary community standards of the Village of Waverly
with respect to what is suitable for minors, it is presented in such
a way as to appeal to a minor's prurient interest.
It depicts, describes or represents, in a patently
offensive way, nudity or sexual conduct as hereinafter defined.
It lacks serious literary, artistic, political
or scientific value for minors.
Desire or craving for sexual stimulation or gratification.
In determining prurient interest, the material or performance shall
be judged with reference to average persons, unless it appears from
the character of the material or performance that it is designed to
appeal to prurient interests of a particular group of persons, including
but not limited to homosexuals or sadomasochists. In that case, it
shall be judged with reference to the particular group for which it
was designed.
Flagellation or torture by or upon a person who is nude or
clad in undergarments or in a sexually revealing or bizarre costume;
or the condition or such person being fettered, bound or otherwise
physically restrained in an apparent act of sexual stimulation or
gratification.
Masturbation.
Sexual intercourse, whether genital-genital,
oral-genital, oral-anal or anal-genital.
Any erotic fondling or touching of any parts
of the covered or uncovered genitals, buttocks, pubic area or breast
of the female.
Actual or simulated display or exhibition of
the human pubic area or genitals or any part thereof.
Sexual excitement, as hereinafter defined.
Sadomasochistic abuse, as hereinbefore defined.
A business or commercial enterprise that, as one of its primary
business purposes, offers for any form of consideration:
The facial expression, movements, utterances or other responses
of a human male or female, whether alone or with others, whether clothed
or not, who is in an apparent state of sexual stimulation or arousal
and who experiences the physical or sensual reactions of humans engaging
in or witnessing sexual conduct.
An adult entertainment establishment, adult arcade, adult
bookstore, adult video store, adult cabaret, adult motel, adult motion-
picture theater, adult theater, escort agency, nude model studio or
sexual encounter center.
Human genitals, pubic region, buttocks, and female breast
below a point immediately above the top of the areola.
Includes any of the following:
Special regulations are necessary to ensure
that the adverse secondary effects of these specific uses will not
contribute to the blighting or downgrading of the surrounding neighborhood.
The primary control or regulation is for the purpose of preventing
concentration of these uses. Uses subject to these controls and special
regulations are as follows:
No regulated uses shall be permitted or located
in the following areas of the Village:
A.
Residential zoning district boundary: within 500 feet
of the boundary of any residential zoning district in the Village.
B.
Place of worship, school, day care: within 500 feet
of the property line of a parcel containing a church, synagogue, other
place of worship, library, school, day-care facility, park or playground
within the Village, or within 1,000 feet of any existing adult entertainment
business.
C.
Same parcel: on the same parcel as another adult entertainment
establishment.
A.
Any person, firm, corporation or entity who shall
violate any portion of this article shall be guilty of a violation
and, upon conviction thereof, shall be fined in an amount not to exceed
$1,000 for each violation. The continuation of a violation of the
provisions of this article shall constitute, for each day the violation
is continued, a separate and distinct offense hereunder.
B.
Any person, firm, corporation or entity violating
any of the provisions of this article shall become liable to the Village
for any expense or loss or damage occasioned the Village by reason
of such violation.
C.
The imposition of penalties herein prescribed shall
not preclude the Village or any person from instituting appropriate
legal action or proceedings or to prevent a violation of this article,
or to restrain or enjoin the use or occupancy of a building, premises
or part thereof in violation of this article.
