Chapter 5.10
ADULT-ORIENTED BUSINESSES
Sections:
5.10.030 Measurements of distances.
5.10.050 Adult entertainment business – Partial use.
5.10.060 Continuation of nonconforming use.
5.10.070 Maintaining a public nuisance.
5.10.080 Knowledge of a nuisance and responsibility therefor.
5.10.090 Judgment – Forfeiture to general fund – Costs and fees.
5.10.010 Definitions.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
“Adult bookstore” means an establishment having as a preponderance of its stock in trade or its dollar volume in trade, books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, tapes, records or other forms of visual or audio representations which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.
“Adult cabaret” means a nightclub, bar, theater, restaurant or similar establishment which frequently features live performances by topless and/or bottomless dancers, go-go dancers, exotic dancers, strippers, or similar entertainers, where such performances are distinguished or characterized by an emphasis on specified sexual activities or by exposure to specified anatomical areas and/or which regularly feature films, motion pictures, video cassettes, slides or photograph reproductions which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons.
“Adult drive-in theater” means an open lot or part thereof, with appurtenant facilities, devoted primarily to the presentation of motion pictures, films, theatrical productions and other forms of visual productions, for any form of consideration, to persons in motor vehicles or on outdoor seats in which a preponderance of the total presentation time is devoted to the showing of materials distinguished or characterized by an emphasis on matters depicting, describing, or relating to specified sexual activities or specified anatomical areas for observation by patrons.
“Adult entertainment business” means an adult bookstore, adult motion picture theater, adult mini motion picture theater, adult motion picture arcade, adult cabaret, adult drive-in theater, adult live entertainment arcade or adult service establishment (also see “Adult entertainment business – partial use”).
“Adult entertainment business – partial use” means those businesses that rent, sell, exhibit or otherwise expose in any way to patrons material of any kind which is distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons but which is not considered an adult entertainment business as then currently defined.
“Adult live entertainment arcade” means any building or structure which contains or is used for commercial entertainment which the patron directly or indirectly is charged a fee to view from an enclosed or screened area or booth a series of live dance routines, strip performances or other gyrational choreography which performances are distinguished or characterized by an emphasis on specified sexual activities or by exposure of specified anatomical areas.
“Adult mini motion picture theater” means an enclosed building with a capacity of more than five but less than 50 persons, used for presenting films, motion pictures, video cassettes, slides or similar photographic reproductions in which a preponderance of the total presentation time is devoted to the showing of materials which are distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.
“Adult motel” means a hotel, motel or similar establishment offering public accommodations for any form of consideration which provides patrons, upon request, with closed-circuit television transmissions, film, motion pictures, video cassettes, slides or other photographic reproductions which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.
“Adult motion picture arcade” means any place to which the public is permitted or invited wherein coin- or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors 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 an emphasis on depicting or describing specified sexual activities or specified anatomical areas.
“Adult motion picture theater” means an enclosed building with a capacity of 50 or more persons used for presenting films, motion pictures, video cassettes, slides or similar photographic reproductions in which a preponderance of the total presentation time is devoted to the showing of materials which are distinguished or characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.
“Adult service establishment” means any building, premises, structure or other facility, or any part thereof, under common ownership or control which provides a preponderance of services involving specific sexual activities or display of specified anatomical areas.
“Enlargement” means an increase in the size of the building, structure or premises in which the adult entertainment business is conducted by either construction or use of an adjacent building or any portion thereof whether located on the same or an adjacent lot or parcel of land.
Establishing an Adult Entertainment Business. This term shall include any of the following:
(A) The opening or commencement of any such business as a new business;
(B) The conversion of an existing business, whether or not an adult entertainment business, to any other adult entertainment businesses defined herein;
(C) The addition of any of the adult entertainment business defined herein to any other existing adult entertainment business; or
(D) The relocation of any such business.
“Integrated center” means a building containing a number of individual, unrelated and separately operated uses which share common site facilities and services such as driveway entrances and exits, parking areas, truck loading, maintenance, sewer and water utilities, or similar common facilities and services; or one or more buildings containing individual, unrelated and separately operated uses, occupying a site under one ownership or management for lease, and utilizing one or a combination of the aforementioned common site facilities or services.
“Nonconforming adult use” means any building, structure or land lawfully occupied by an adult entertainment business or lawfully situated at the time of passage of this chapter or amendments thereto, which does not conform after the passage of this chapter or amendments thereto with the regulations of this chapter.
“Reconstruction” means the rebuilding or restoration of any nonconforming adult use which was damaged or partially destroyed by an exercise of the power of eminent domain, or by fire, flood, wind, explosion or other calamity or act of God if the damage or destruction exceed two-thirds of the value of the structure or the facilities affected.
“Residential zoning district” means the R-1, R-1A, R-2, and RT zoning districts.
“Resumption” means the reuse or reoccupation of a nonconforming adult use which has been discontinued for a period of six or more consecutive months.
“Services involving specified sexual activities” or “display of specified anatomical areas” means any of the following activities:
(A) The sale or display of books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, video cassettes, slides, tapes, records or other forms of visual or audio representations which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.
(B) The presentation of films, motion pictures, video cassettes, slides, or similar photographic reproductions which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons.
(C) The operation of coin- or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors or other image producing devices 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 an emphasis on depicting or describing specified sexual activities or specified anatomical areas.
(D) Live performances by topless and/or bottomless dancers, go-go dancers, exotic dancers, strippers, or similar entertainers, where such performances are distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
“Specified anatomical areas” means any of the following:
(A) Less than completely and opaquely covered human genitals, pubic region, buttocks, anus or female breasts below a point immediately above the top of the areola; or
(B) Human male genitals in a discernible turgid state, even if completely and opaquely covered.
“Specified sexual activities” means any of the following:
(A) Human genitals in a state of sexual stimulation or arousal;
(B) Acts of human masturbation, sexual intercourse or sodomy;
(C) Fondling or other erotic touching of human genitals, pubic regions, buttocks or female breasts;
(D) Flagellation or torture in the context of a sexual relationship;
(E) Masochism, erotic or sexually oriented torture, beating or the infliction of pain;
(F) Erotic touching, fondling or other such contact with an animal by a human being; or
(G) Human excretion, urination, menstruation, vaginal or anal irrigation as part of or in connection with any of the activities set forth in this definition.
“Structural alteration” means any change which would prolong the life of the supporting members of a building or structure such as bearing walls, columns, beams or girders, except such changes as are ordered made pursuant to the provisions of the Unsafe Building Law, IC 36-7-9-1 et seq., and any amendments thereto. [Ord. 1049, 1996; amended during 2012 recodification. Code 2000 § 111.01].
5.10.020 Prohibitions.
(A) The establishment, enlargement, reconstruction, resumption or structural alteration of any adult entertainment business shall be prohibited if such business is within 1,000 feet of another such business, within 1,000 feet of any existing residential zoning district or within 1,000 feet of any church, park or school within the town.
(B) Furthermore, no adult entertainment business shall be established, enlarged, reconstructed, resumed, or structurally altered unless the site or proposed site is located in a B-3 (general business) zoning district or a B-4 (commercial) zoning district. [Ord. 1049, 1996. Code 2000 § 111.02].
Penalty, see HMC 1.05.110.
5.10.030 Measurements of distances.
The distance between one adult entertainment business and another adult entertainment business shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior structural wall of each such business. The distance between an adult entertainment business and any church, school, park, or residential zoning district shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior structural wall to the adult entertainment business to the nearest property line of the church, school, park or residential zoning district. If any adult entertainment business is part of or included within an integrated center, only the portion of said center or leased space occupied by such adult entertainment business shall be included in determining the closest exterior structural wall of said establishment. [Ord. 1049, 1996. Code 2000 § 111.03].
5.10.040 Exterior display.
(A) Conduct of Business. No adult entertainment establishment shall be conducted in any manner that permits the observation of any material depicting, describing or relating to specified sexual activities or specified anatomical areas by display, decoration, sign, show window or other opening from any public way.
(B) Number of Signs. Not more than one business wall sign shall be permitted for an adult entertainment business and said sign shall be permitted only on the front facade. In addition to the one permitted business wall sign, an adult entertainment business not located within an integrated center shall be permitted not more than one pole or ground sign structure if it is an entity of commercial development held in either private ownership or long-term lease, and which meets all of the requirements, shall include direct access to a public street from that property and a full amount of required parking on the site with the use. All other sign structures shall be prohibited.
(C) Sign Surface Area. The sign surface area of a business wall sign for an adult entertainment business shall not exceed an amount equal to five percent of the front building facade of the first floor elevation (first 10 feet) of the premises occupied by the adult entertainment business, or 100 square feet, whichever is the lesser. The maximum sign surface area of a ground or pole sign structure, where permitted, shall not exceed one square foot for each lineal foot of frontage of the lot, or 36 square feet, whichever is the lesser.
(D) Lighting. Signs and sign structures may be illuminated; provided, however, such illumination shall not be by way of exposed neon, exterior lighting (e.g., spot or flood lights), or any flashing or animated lights (either interior to the sign, on the exterior of the sign, or as a border to the sign).
(E) Conflicting Provisions. To the extent the express or implied provisions of this chapter conflict with a provision of any other chapter of the town’s code, this chapter shall apply. [Ord. 1049, 1996. Code 2000 § 111.04].
Penalty, see HMC 1.05.110.
5.10.050 Adult entertainment business – Partial use.
An adult entertainment business – partial use as defined herein and to the extent of that portion of the business that is distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons shall govern itself in conformance with the following:
(A) The business conform to HMC 5.10.040.
(B) The business shall not display to any person under the age of 18 years of age any book, magazine, periodical, photographs, film, motion picture, video cassette, slide, tape, record or other form of visual or audio representation or any advertisement therefor. In this section, “display” means to locate an item in such a manner that, without obtaining assistance from an employee of the business or without having to first enter a separate enclosed area specifically prohibiting persons under the age of 18:
(1) The item is available to the general public for handling and inspection; or
(2) The cover or outside packaging on the item, except for its title, is visible to members of the general public.
(C) This provision shall apply to all existing businesses as if it was in full force and effect before the establishment of said business. [Ord. 1049, 1996. Code 2000 § 111.05].
Penalty, see HMC 1.05.110.
5.10.060 Continuation of nonconforming use.
The lawful use of land or buildings existing at the time of the adoption of this chapter may continue although such use does not conform to the regulations specified herein, subject to the provisions set forth in HMC 5.10.040. [Ord. 1049, 1996. Code 2000 § 111.06].
5.10.070 Maintaining a public nuisance.
Any building used as an adult entertainment business in violation of this chapter or any adult entertainment business – partial use in violation of this chapter, with the actual or constructive knowledge of the owner thereof, or of the agent of the owner managing such building, together with all fixtures and other property used in conjunction with the operation of said building, are hereby declared to be a public nuisance. [Ord. 1049, 1996. Code 2000 § 111.07].
5.10.080 Knowledge of a nuisance and responsibility therefor.
Upon and after receiving notice through service of a copy of this chapter and a certified copy of the resolution declaring a public nuisance, any and every person who shall own, legally or equitably, lease, maintain, manage, conduct or operate a place in the town which is declared to be a public nuisance is deemed to be a person who has knowledge of such nuisance for the purpose of this chapter and is, thereafter, responsible for its maintenance and shall be liable thereafter. [Ord. 1049, 1996. Code 2000 § 111.08].
5.10.090 Judgment – Forfeiture to general fund – Costs and fees.
(A) Upon judgment for the town in a legal proceeding brought pursuant to this chapter, an accounting shall be made by such defendant or defendants of all monies or valuable consideration received by them which have been declared to be a public nuisance under this chapter. Such monies or their equivalent and any other valuable consideration received shall be forfeited to the general fund of the town or to the town as property of the town if any valuable consideration received not be money.
(B) The town, in its judgment, may also include the following:
(1) Investigative costs;
(2) Court costs;
(3) Reasonable attorneys’ fees arising out of the preparation for and trial of the cause, and appeals therefrom, and other costs allowed on appeal.
(C) Upon obtaining judgment in a civil action pursuant to this chapter, the judgment shall be made a lien against such property and a personal obligation against the property owner and shall be collected at the same time and in the same manner ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in the case of delinquency as provided for ordinary municipal taxes. All laws, applicable to the levy, collection and enforcement of municipal taxes, shall be applicable to such special assessment. [Ord. 1049, 1996. Code 2000 § 111.09].