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Home My WebLink AboutORDINANCE 2044-2004 Suggested by: Administration CITY OF KENAI ORDINANCE N0.2044-2004 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING TITLE 14 OF THE KENAI ZONING CODE BY ADOPTING KMC 14.20.175 FOR THE REGULATION OF ADULT BUSINESSES. WHEREAS, adult businesses require a special supervision from the public safety agencies of the City in order to protect and preserve the health, safety, and welfare of the patrons of such businesses, as well as citizens of the City; and, WHEREAS, the United States Supreme Court held in Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986) that communities were entitled to rely on the experience and finding of other communities in dealing with adult businesses and on the findings of Northend Cinema, Inc. v. Seattle, 90 P.2d 709 (1978); and, WHEREAS, the city has relied upon the following studies in addressing the need for an adult business ordinance: 1) Crime Impact Studies by Municipal and State Governments on Harmful Secondary Effects of Sexually Oriented Business, National Law Center for Children and Families (summarizing the experience and finding of 32 communities throughout the nation); 2) Report of the Minnesota Attorney general's Working Group on the Regulation of Sexually Oriented Business (June 6, 1989); and 3) Dana M. Tucket, Preventing The Secondary Effects of Adult Entertainment Establish- ments: Is Zoning The Solution? Journal of Land Use and Environmental Law, Vol. 12.2, 1997; Kelly Holsopple, Stripclubs According to Strippers: Exposing Workplace Sexual Violence (1998) available at www.uri.edu/artsci/wms/hughes/stripcl.htm; and, WHEREAS, there is convincing, documented evidence that adult businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the residential areas adjacent to them, causing increased crime and downgrading of property values, and, WHEREAS, it is recognized that adult businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, thereby contributing to urban blight and downgrading the quality of life in the adjacent area; and, WHEREAS, the City Council desires to minimize and control these adverse effects, thereby protecting the health, safety, and welfare of the citizenry; protecting the citizens from increased crime; preserving the quality of life; and preserving the property values and character of surrounding neighborhoods; and, WHEREAS, the City Council has determined that locational criteria alone do not adequately protect the health, safety and general welfare of the citizens of Kenai; and, Ordinance No. 2044-2004 Page 2 of 5 WHEREAS, it is not the intent of this ordinance to suppress any speech activities protected by the constitutions of the United States or the State of Alaska but rather to enact acontent-neutral ordinance, which addresses the secondary effects of adult- oriented businesses. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA that KMC 14.20.175 is enacted set out as follows. Title 14 PLANNING AND ZONING 14.20.175 Adult Businesses (a) Definitions. For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning: 1) "Adult bookstore" means a commercial establishment where at least 51 percent of its interior floor area or retail merchandise is devoted to the sale, rent, lease, inspection, or viewing of books, films, video cassettes, DVD's, magazines, other periodicals or digital presentations whose dominant theme is the actual or simulated specified sexual activities, display or exhibition of specified anatomical areas, removal of articles of clothing, or total nudity. 2) "Adult cabaret" means a restaurant, coffee house, bar or cabaret which features topless dancers, strippers, male or female impersonators, or similar entertainers who provide live adult entertainment for commercial purposes. 3) "Adult entertainment" means any motion picture, live performance, display, or dance of any type whose dominant theme is actual or simulated specified sexual activities, display or exhibition of specified anatomical areas, removal of articles of clothing, or total nudity, offered for commercial purposes. 4) "Adult mini-theater" means an enclosed building with a capacity of less than 50 persons used for displaying adult entertainment through films, video, or other motion pictures for commercial purposes. 5) "Adult motion picture theatre" means an enclosed building with a capacity of 50 or more persons used for displaying adult entertainment through films, video, or other motion pictures for commercial purposes. 6) "Adult business" means any adult bookstore, adult cabaret, adult mini-theater, or adult motion picture theater. 7) "Commission" means the City of Kenai Planning and Zoning Commission. 8) "Operator or manager" means any natural person responsible for the actual operation and management of an adult business. 9) "Sexual conduct" means acts of: i. Sexual intercourse within its ordinary meaning, occurring upon any penetration, however slight; or Ordinance No. 2044-2004 Page 3 of 5 ii. Any penetration of the vagina or anus, however slight, by an object; or lll. Any contact between persons involving the sex organs of one person and the mouth or anus of another; or iv. Masturbation, manual or instrumental, of oneself or of one person by another; or v. Touching of the sex organs or anus, whether clothed or unclothed, of oneself or of one person by another. 10) "Specified anatomical areas" means: i. Less than completely and opaquely covered human genitals, pubic region, buttocks, and female breast below a point immediately above the top of the areola; and 11. Human male genitals in a discernible erect state, even if opaquely covered. 11) "Specified sexual activities" means simulated or actual: i. Display of human genitals in a state of sexual stimulation or arousal; ii. Acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio, or cunnilingus; and iii. Fondling or erotic touching of human genitals, pubic region, buttocks, or female breasts. (b) Location Requirements. 1) Adult Businesses may be located only in the CC, CG, IL and IH zones. Additionally, no adult business maybe located within five hundred (500) feet of another adult business, a church or other place of worship or public or private school. 2) fihe distances specified in this section shall be measured in a straight line, without regard to intervening structures, from the nearest point of the premises in which the proposed adult business is to be established to the nearest property line of a use listed above. (c) Dev elopment and Operation Standards. The following development and operation standards shall apply to adult businesses: 1) No adult business shall be located in any temporary or portable structure. 2) Trash dumpsters shall be enclosed by a screening enclosure so as not to be accessible to the public. 3) No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times. 4) Permanent barriers shall be installed and maintained to screen the interior of the premises from public view for each door used as an entrance or exit to the business. 5) The entire exterior grounds, including the parking lot, shall be lighted in such a manner that all areas are clearly visible at all times. 6) Signage shall be governed by KMC 14.20.220 (Signs). Ordinance No. 2044-2004 Page 4 of 5 ,. 7) All entrances to an adult business shall be clearly and legibly posted with a notice indicating that persons under 18 are prohibited from entering the premises. 8) No adult business shall be operated in any manner that permits the observation of any persons or material depicting, describing or related to specified sexual activities or specified anatomical areas, inside the premises, from any public way or from any location outside the building or area of such establishment. This provision shall apply to any merchandise, display, decoration, sign, show window or other opening. 9) Each adult business shall conform to all applicable laws and regulations. 10) The adult business shall not operate or be open between the hours of 2:00 a.m. and 9:00 a.m. 11) Amplified sound may not be broadcast outside the building and structures used for the adult business. 12) No tip or gratuity offered or accepted by an adult entertainer maybe offered or accepted prior to any live performance, dance or exhibition provided by the adult entertainer. No adult entertainer performing live upon any stage shall be permitted to accept any form of gratuity offered directly to the entertainer by any member of the public. Any gratuity offered to any adult entertainer performing live upon any stage must be placed into a receptacle provided for receipt of gratuities by the business or through a manager on duty on the premises. Any gratuity or tip offered to any adult entertainer conducting any live performance, dance or exhibition in or about the non-stage area of the adult business shall be placed into the hand of the adult entertainer or into a receptacle provided by the adult entertainer, and not upon the person or into the clothing of the adult entertainer. 13) No live entertainer shall engage in acts of sexual conduct. 14) An adult cabaret shall provide separate dressing room facilities for performers, which are exclusively dedicated to the performers' use. 15) An adult cabaret shall provide anentrance/exit for performers, which is separate from the entrance/exit used by patrons. 16) An adult cabaret shall provide access for performers between the stage and the dressing rooms, which are completely separated from the patrons. If such separate access is not physically feasible, the cabaret shall provide a minimum three- foot wide walk aisle for performers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the performers that is capable of preventing any physical contact between patrons and performers. 17) All indoor areas of the adult cabaret where patrons or members of the public are permitted, excluding restrooms, shall be open to view by management at all times. Ordinance No. 2044-2004 Page 5 of 5 ~~,, (d) If any portion of this chapter, or its application to an erson or Yp circumstances, is held invalid, the validity of this chapter as a whole, or any portion thereof, and its application to other persons or circumstances, shall not be affected. (e) Non-conforming Use: Any adult business operating at the time of the effective date of this ordinance shall be considered anon-conforming use under KMC 14.20.050. However, a business that only periodically engages in adult business activity may continue to operate as anon-conforming use at the same level of activity it operated for the one-year period prior to the adoption of this ordinance. For example, a bar or restaurant that operated as an adult cabaret five times in the previous one-year period would be allowed to operate as anon-conforming use five times per year. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 19th day of May, 2004, ~- ATTEST: r Carol L. Freas, City Clerk Introduced: May 5, 2004 Adopted: May 19, 2004 Effective: June 19, 2004 (4/29/04 - sp)