§ 122-492. Sexually oriented businesses.
(a)
Purpose and intent. The purpose and intent of this article is to minimize the negative, secondary effects associated with sexually oriented businesses through regulating, but not excluding, the location and operation of sexually oriented businesses within the city. It is recognized that sexually oriented businesses, because of their very nature, have serious objectionable operational characteristics which cause negative secondary effects upon nearby residential, educational, religious and other similar public and private land uses. The regulation of sexually oriented businesses is necessary to ensure that their negative secondary effects will not adversely impact the health, safety or general welfare of residents, nor contribute to the blighting or downgrading of surrounding areas. The provisions of this section are not intended:
(1)
To violate the guarantees of the First Amendment to the United States Constitution or article I, section 5 of the Michigan Constitution of 1963;
(2)
To deny adults access to sexually oriented businesses and their products;
(3)
To deny sexually oriented businesses access to their intended market; or
(4)
To legitimatize activities which are prohibited by city ordinance, state or federal law.
The city further states that it would have passed and adopted what might remain of this article following the removal, reduction or revision of any portion of this article found to be invalid or unconstitutional.
(b)
Definitions. The following definitions shall apply in the interpretation and enforcement of this article only, unless otherwise specifically stated:
(1)
Adult arcade. A commercial establishment that offers coin-operated (or operation by any other form of consideration) electronically, electrically, or mechanically-controlled still or motion picture machines, projectors, video or laser disc players, or other image-producing devices to show images to five or fewer persons per machine at anyone time, and where the images so displayed are distinguished or characterized by the depicting of specified anatomical areas or specified sexual activities.
(2)
Adult bookstore or adult video store. A commercial establishment that has a substantial or significant portion of its stock-in-trade, and as one of its principal business purposes offers for sale or rental for any form of consideration, any one or more of the items set forth below:
a.
Books, magazines, periodicals or other printed matter, photographs, films, motion pictures, videocassettes or video reproductions, slides, or any other visual representations or media which depict or describe specified anatomical areas or specified sexual activities; or
b.
Instruments, devices, or paraphernalia that are designed for use in connection with specified sexual activities.
A commercial establishment may have other principal business purposes that do not involve offering for sale or rental the material identified in subsections a. and b. above, and still be categorized as an adult bookstore or adult video store.
(3)
Adult cabaret. A nightclub, bar, restaurant, or similar commercial establishment that regularly features:
a.
Persons who appear in a state of nudity;
b.
Live performances that are characterized by the exposure of specified anatomical areas or by specified sexual activities;
c.
Films, motion pictures, videocassettes, slides, other photographic reproductions or visual media that are characterized by the depiction or description of specified anatomical areas or specified sexual activities; or
d.
Persons who engage in lewd, lascivious or erotic dancing or performances that are intended for the sexual interests or titillation of an audience or customers.
(4)
Adult entertainment booking agency. A business engaged in for financial remuneration, either directly or indirectly, wherein the owner, operator or agent books performances for dancers, comedians, musicians, entertainers or burlesque performers, taking a fee, commission or percentage of any money from the patron or performer for services rendered, when the performances are characterized by exposure of specified anatomical areas or by specified sexual activities.
(5)
Adult motel. A hotel, motel or similar commercial establishment that does any of the following:
a.
Offers accommodations to the public for any form of consideration and provides patrons with closed-circuit television transmission, films, motion pictures, videocassettes, slides, other photographic reproductions or visual media that are characterized by the depiction or description of specified anatomical areas or specified sexual activities and has a sign visible from the public right-of-way that advertises the availability of any of the above:
b.
Offers a sleeping room for rent for a period of time that is less than 12 hours; or
c.
Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 12 hours.
(6)
Adult motion picture theater. A commercial establishment that, for any form of consideration, regularly shows films, motion pictures, videocassettes, slides, other photographic reproductions or visual media, that are characterized by the depiction or description of specified anatomical areas or specified sexual activities.
(7)
Adult theater. A theater, concert hall, auditorium, or similar commercial establishment that regularly features a person or persons who appear in a state of nudity or live performances that are characterized by exposure of specified anatomical areas or by specified sexual activities.
(8)
Dating service. A business engaged in for financial remuneration, either directly or indirectly, where arrangements are made to match a person of the same or opposite sex to a patron or patrons, for social or entertainment purposes, either on or off the premises of the dating service.
(9)
Escort. 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.
(10)
Escort agency. A person or business who furnishes, offers to furnish, or advertises the furnishing of escorts for a fee, tip, or other consideration.
(11)
Massage. The performance of manipulative exercises upon the human body of another by rubbing, kneading, stroking or tapping with the hand or hands, or with any mechanical or bathing device, with or without supplementary aids, for nontherapeutic purposes. The systematic and scientific manipulation of the soft tissues of the human body by a health care professional for therapeutic and/or rehabilitative purposes shall be considered a therapeutic massage and not restricted by this section.
(12)
Massage parlor. Any commercial establishment where nontherapeutic massage is made available for any form of consideration.
(13)
Massage school. Any place, establishment or facility which provides instruction in the theory, method and practice of nontherapeutic massage.
(14)
Nude model studio. Any place where a person who displays specified anatomical areas is provided in order to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration, but does not include:
a.
An educational institution funded, chartered, licensed or recognized by the state; or
b.
A private artist's studio where the private artist employs or contracts with the model to be observed and depicted solely by the private artist.
(15)
Nudity or a state of nudity. Knowingly or intentionally displaying in a public place, or for payment or promise of payment by any person, including, but not limited to, payment or promise of payment of an admission fee, any individual's genitals or anus with less than a fully opaque covering, or a female individual's breast with less than a fully opaque covering of the nipple and areola. Public nudity does not include a woman's breastfeeding of a baby whether or not the nipple or areola is exposed during or incidental to the feeding.
(c)
Zoning district. Notwithstanding any provisions of this chapter to the contrary, sexually oriented businesses shall be permitted only as a special use subject to planning commission approval within the C-3 zoning district.
(d)
Location and operation. Special use shall not be granted to any sexually oriented business unless it meets all of the following enumerated regulations. Any sexually oriented business granted special use shall continue to comply with all of the regulations of this section at all times while the business is operational.
(1)
No sexually oriented business shall be located on a parcel that is within 1,000 feet of another sexually oriented business. For purposes of this subsection, and subsections (2) and (3) below, the distance between a proposed sexually oriented business and:
a.
Another sexually oriented business;
b.
The boundary of any land zoned residential, or approved as a planned unit development for residential purposes; or
c.
Land used for any single-, two-, or multiple-family dwelling, city, county, or state park, school, library, licensed child care-facility, playground, church or place of worship shall be measured in a straight line from the nearest lot line of the lot upon which the proposed sexually oriented business is to be located to:
1.
The nearest lot line of the lot used for the other sexually oriented business;
2.
The nearest boundary of the land zoned residential, or approved as a planned unit development for residential purposes; or
3.
The nearest property line of the lot used for a single-, two-, or multiple-family dwelling, city, county, or state park, school, library, licensed child care facility, playground, church or place of worship.
(2)
No sexually oriented business shall be located on a parcel that is within 500 feet of the boundary of any land zoned residential, or approved as a planned unit development for residential purposes.
(3)
No sexually oriented business shall be located on a parcel within 500 feet of any single- or multiple-family dwelling, any city, county or state park, any school, library, licensed child care facility, playground, church or place of worship.
(4)
No sexually oriented business shall be located within any principal or accessory building or structure already containing another sexually oriented business.
(5)
The proposed use shall conform to all regulations of the zoning district in which it is located.
(6)
The proposed use shall be in compliance with all other sections of the Bay City Code of Ordinances, and with all statutes, laws, rules and regulations of the county, state and federal government and, to the extent required, all governmental approvals must be obtained.
(7)
The outdoor storage of garbage and refuse shall be contained, screened from view and located so as not to be visible from neighboring properties or the adjacent right-of-way of a public street or private road.
(8)
Any sign or signs proposed for the sexually oriented business shall comply with the provisions of article XX, signs, and may not otherwise include photographs, silhouettes, drawings, or pictorial representations of specified anatomical areas, specified sexual activities or obscene representations of the human form.
(9)
Entrances to the proposed sexually oriented business must be posted on both the exterior and interior walls, in a location clearly visible to those entering and exiting the business, and using clearly marked lettering no less than two inches in height stating that:
a.
"Persons under the age of 18 are not permitted to enter the premises"; and
b.
"No alcoholic beverages of any type are permitted within the premises unless specifically allowed pursuant to a license duly issued by the Michigan Liquor Control Commission."
(10)
No product or service for sale or gift, or any picture or other representation of any product or service for sale or gift, shall be displayed so as to be visible by a person of normal visual acuity from the nearest adjoining right-of-way of a public street or private road or a neighboring property.
(11)
All off-street parking areas shall comply with article XVII, off-street parking, and shall be illuminated after sunset during all hours of operation of the sexually oriented business, and until one hour after the business closes. Illumination shall be designed to be in compliance with the regulations of article III, general provisions, section 122-60.
(12)
Any booth, room or cubicle available in any sexually oriented business, except an adult motel, that is used by patrons for the viewing of any entertainment characterized by the showing of specified anatomical areas or specified sexual activities shall:
a.
Be handicap accessible to the extent required by law;
b.
Be unobstructed by any floor, lock or other entrance and exit control device;
c.
Have at least one side totally open to a public, lighted aisle so that there is an unobstructed view of any occupant at all times from the adjoining aisle;
d.
Be illuminated such that a person of normal visual acuity can, by looking into the booth, room or cubicle from its entrance adjoining the public lighted aisle, clearly determine the number of people within; and
e.
Have no holes or openings in any side or rear walls not relating to utility, ventilation or temperature control services or otherwise required by any governmental building code authority.
(e)
Decision on application for special use.
(1)
Notwithstanding any provisions of this chapter to the contrary, a final decision on the special use application and site plan approval shall be made by the planning commission within 75 days of the receipt of the completed application by the planning department. The planning commission shall base its decision upon the applicant's compliance with the regulations set forth in this chapter, and the standards applicable to special use and site plan approval.
(2)
The planning commission may impose reasonable conditions in conjunction with the approval of a special use permit for a sexually oriented business. The conditions imposed shall be limited to conditions necessary to ensure that the sexually oriented business will not be unreasonably detrimental to the public health, safety, or general welfare of the city; nor unreasonably injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted; nor unreasonably impede the normal and orderly development and improvement of the surrounding property for uses permitted under this chapter.
(3)
The planning commission shall incorporate its decision in a written statement containing the conclusions that specify the basis of the decision and any conditions imposed.
(Ord. No. 2005-11, 11-21-05; Ord. No. 2008-17, § 35, 12-15-08)