It is the purpose of this Part 4 to regulate
sexually oriented businesses in order to promote the health, safety,
morals, and general welfare of the citizens of the City, and to establish
reasonable and uniform regulations to prevent the deleterious location
and concentration of sexually oriented businesses within the City.
The provisions of this Part 4 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 Part 4 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 this Part 4 to condone or legitimize the distribution of
obscene material.
Based on evidence concerning the adverse secondary
effects of adult uses on the community presented in hearings and in
reports made available to the governing body of the City of Evanston,
and on findings incorporated in the cases of City of Renton v. Playtime
Theaters, Inc., 475 U.S. 41 (1986), Young v. American Mini Theaters,
426 U.S. 50 (1976), and Barnes v. Glen Theater, Inc., 501 U.S. 560
(1991), and on studies and summary of studies in other communities
including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota;
Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove,
California; Los Angeles, California; Whittier, California; Austin,
Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio;
Beaumont, Texas; and New York, New York; and also on findings from
the Report of the Attorney General's Working Group on the Regulation
of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota);
and also on the reports, memos, affidavits and other documents provided
to the City of Evanston by Detective Dan Kimett of the Denver, Colorado
police department on July 27, 1997, and the testimony of Sergeant
Pete Carey of Colorado Springs, Colorado police department provided
to governing body at a public meeting held on July 28, 1997, the governing
body finds:
A.
Sexually oriented businesses lend themselves to ancillary
unlawful and unhealthy activities that are often uncontrolled by the
operators of the establishments. Further, there is presently no mechanism
in the City of Evanston to make the owners of these establishments
responsible for the activities that may occur on their premises.
B.
Sexual acts, including masturbation, and oral and
anal sex, occur at sexually oriented businesses, especially those
which provide private or semi-private booths or cubicles for viewing
films, videos, or live sex shows.
C.
The documented evidence and testimony of Officer Pete
Carey shows that sexually oriented businesses because of their very
nature, 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.
D.
The evidence shows that sexually oriented businesses,
due to their nature, have serious objectionable 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.
E.
The evidence shows that sexually oriented businesses
are frequently used for unlawful sexual activities including prostitution.
F.
The evidence shows increased crime and unhealthful
conduct tend to accompany, concentrate around and be aggravated by
sexually oriented businesses including but not limited to prostitution,
pandering, public indecency, public disturbances and exposing minors
to harmful materials.
G.
Sexually transmitted diseases, including AIDS, are
a legitimate health concern of the City which requires reasonable
regulations of sexually oriented businesses in order to protect the
health and well being of the citizens.
H.
Sexually oriented businesses have operational characteristics
which should be reasonably regulated in order to protect those substantial
governmental concerns.
I.
Removal of doors on adult booths and requiring sufficient
lighting on premises with adult booths advances a substantial governmental
interest in curbing the illegal and unsanitary sexual activity occurring
in adult video arcades and also promotes the safety of law enforcement
personnel.
J.
The general welfare, health, morals and safety of
the citizens of the City will be promoted by the enactment of this
Part 4.
As used in this part, the following terms shall
have the meanings indicated:
Any place to which the public is permitted or invited wherein
coin-operated, slug-operated, or for any form of consideration, electronically,
electrically, or mechanically controlled still or motion picture machines,
projectors, video or laser disc players, or other image-producing
devices are maintained to show images to 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."
A commercial establishment which devotes a significant or
substantial portion of its stock-in-trade or interior floor space
to; or devotes a significant or substantial portion of its advertising
expenditures to the promotion of the sale, rental or viewing, 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 which are characterized by the depiction
or description of "specified sexual activities" or "specified anatomical
areas"; or (2) Instruments, devices, or paraphernalia which are designed
for use in connection with "specified sexual activities." A commercial
establishment may have other principal business purposes that do not
involve the offering for sale or rental or material 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 commercial establishments from being categorized as an adult
bookstore, adult novelty store, or adult video store so long as the
provisions of this definition are otherwise met.
A nightclub, bar, restaurant, or similar commercial establishment
which regularly features:
Persons who appear in a state of nudity or semi-nude;
or
Live performances which are characterized by
the exposure of "specified anatomical areas" or by "specified sexual
activities"; or
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."
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, video cassettes, 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 from the public right of way which
advertises the availability of this adult type of photographic reproductions;
or
Allows a tenant or occupant of a sleeping room
to subrent the room for a period of time that is less than ten hours.
A commercial establishment where, for any form of consideration,
films, motion pictures, video cassettes, slides, or similar photographic
reproductions are regularly shown which are characterized by the depiction
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 semi-nude, or live performances which are characterized
by the exposure of "specified anatomical areas" or by "specified sexual
activities."
A person who performs any service on the premises of a sexually
oriented business on a full-time, part-time or contract basis, whether
or not the person is denominated an employee, independent contractor,
agent or otherwise and whether or not said person is paid a salary,
wage or other compensation by the operator of said business. Employee
does not exclude a person exclusively on the premises for repair or
maintenance of the premises, or for the delivery of goods to the premises.
A person who, for 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.
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.
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 any sexually oriented business;
The additions of any sexually oriented business
to any other existing sexually oriented business; or
The relocation of any sexually oriented business.
Any place where, for any form of consideration or gratuity,
massage, alcohol rub, administration of fomentations 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 their "specified anatomical areas."
Any place where a person who appears semi-nude, in a state
of nudity, or who displays "specified anatomical areas" and is provided
to be observed, sketched, drawn, painted, sculptured, photographed,
or similarly depicted by other persons who pay money or any form of
consideration. Nude model studio shall not include a proprietary school
licensed by the state of Wyoming or a college, junior college or university
supported entirely or in part by public taxation; a private college
or university which maintains and operates educational programs in
which credits are transferable to a college, junior college, or university
supported entirely or partly by taxation; or in a structure:
That has no sign visible from the exterior of
the structure and no other advertising that indicates a nude or semi-nude
person is available for viewing; and
Where in order to participate in a class a student
must enroll at least three days in advance of the class; and
Where no more than one nude or semi-nude model
is on the premises at any one time.
The showing of the human male or female genitals, pubic area,
vulva, anus, anal cleft or cleavage with less than a fully opaque
covering, the showing of the female breast with less than a fully
opaque covering of any part of the nipple, or the showing of the covered
male genitals in a discernible turgid state.
An individual, proprietorship, partnership, corporation,
limited liability company, association, or other legal entity.
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.
A business or commercial enterprise that, as one of its principal
business purposes, offers for any form of consideration:
An adult arcade, adult bookstore, adult novelty store, adult
video store, adult cabaret, adult motel, adult motion picture theater,
adult theater, escort agency, nude model studio, or sexual encounter
center.
Any of the following:
The fondling or other erotic touching of human
genitals, pubic region, buttocks, anus, or female breasts;
Sex acts, normal or perverted, actual or simulated,
including intercourse, oral copulation, masturbation, or sodomy; or
Excretory functions as part of or in connection
with any of the activities set forth in A through B above.
Sexually oriented businesses are classified
as follows:
