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HomeMy WebLinkAboutORDINANCE - 2709 - 8/10/1999 - SEXUALLY ORIENTED BUSINESSESORDINANCE NO. 2709 AN ORDINANCE ESTABLISHING REGULATIONS CONTROLLING THE LOCATION OF SEXUALLY ORIENTED BUSINESSES TO MINIMIZE THE SECONDARY ADVERSE EFFECT OF SUCH BUSINESSES IN THE VILLAGE OF ELK GROVE VILLAGE, ILLINOIS PREAMBLE WHEREAS, the Village of Elk Grove Village ("Village") has been provided with legal background information on sexually oriented businesses which are summarized as follows: The United States Supreme Court in its decisions of Yout!g v. American Mini Theaters, 96 S. Ct. 2440 (1976), and City of Renton v. Playtime Theaters, 475 U.S. 41 (1 986) has held that sexually oriented businesses engaged in the offering of adult fare characterized by an emphasis on matter depicting specified sexual activities or anatomical areas may not be completely prohibited from doing business within the Village by municipal ordinances. 2. The Supreme Court has further held that municipalities may regulate sexually oriented businesses with lawfully enacted content -neutral time, place, and manner zoning and licensing ordinances if said regulations are not merely a pretext for completely prohibiting within such municipalities sexually oriented businesses based on the content of the material being offered. The Supreme Court has concluded that lawful content neutral time, place, and manner regulations may have as their focus the minimization of the adverse secondary effects on a community generated by the location and operation of a sexually oriented business within a community. Adverse secondary effects are defined as, but not limited to, a. Increased incidents of crime, b. Diminution of property values within the community and especially the values of those properties adjacent to or in close proximity to the sexually oriented business, and c. Increased risk for the spread of sexually transmitted diseases. 4. The Supreme Court has concluded that restriction on the location of sexually oriented business must be designated to serve a substantial governmental interest and allow for reasonable alternative avenues for communication. 5. The minimization of the adverse secondary effects of sexually oriented businesses within the Village will serve substantial governmental interest. WHEREAS, based on the legal background referenced herein, the President and Board of Trustees of the Village ("the Corporate Authorities") hereby makes the following Findings of Fact in connection with the regulation of sexually oriented businesses with the Village. 1. That the Corporate Authorities have reviewed and considered all the material provided to them in connection with the regulation of sexually oriented businesses within the Village. 2. The Corporate Authorities have reviewed and studied the information presented by the Plan Commission and Village Staff including a number of reports from other governmental units especially the "Report of the (Minnesota) Attorney General's Working Group on Regulation of Sexually Oriented Businesses," dated June 6, 1989, hereinafter referred to as the "Report." 3. The Report considered evidence from studies conducted in governmental units throughout the United States relating to sexually oriented businesses. The Report, based upon these studies and the testimony presented to it has concluded that "sexually oriented businesses are associated with high crime rates and depression of property values." In addition, the Attorney General's Work Group, "...heard testimony that the character of a neighborhood can dramatically change when there is a concentration of sexually oriented businesses adjacent to residential property." 5. The Report concludes that sexually oriented businesses have an impact on the neighborhoods surrounding them which is distinct from the impact caused by other commercial uses. 6. The Report concludes that residential neighborhoods located within close proximity to adult theaters, book stores, and other sexually oriented businesses experience increased crime rates (sex-related crimes in particular), lowered property values, increased transiency, and decreased stability of ownership, which was confirmed by the Phoenix, Arizona study. The Report concludes the adverse impacts which sexually oriented businesses have on surrounding areas diminish as the distance from the sexually oriented businesses increases. 8. The Report concludes that studies of other cities have shown that the values of both commercial and residential properties either are diminished or fail to appreciate at the rate of other comparable properties when located in proximity to sexually oriented businesses, which was confirmed by the St. Paul, Minnesota study. 9. The Corporate Authorities find the development and urban characteristics of the Village are comparable to those of the cities cited by the Report when considering the effects of sexually oriented businesses and that the findings concerning the effects of sexually oriented businesses in other cities documented in the Report are relevant to potential circumstances in the Village. 10. The Corporate Authorities, based upon the Report and the studies cited herein, find that sexually oriented businesses have the potential for adverse secondary effects upon certain land uses within the Village and that in reliance on the data and conclusions made by the studies documented in the Report, it is not necessary for the Village to conduct its own independent study concerning the effects of sexually oriented businesses within the Village. It. The Village's current regulations may be insufficient for the purpose of comprehensively regulating the location of sexually oriented businesses with the Village. 12. Pursuant to the United States Supreme Court case of City of Renton i� PIa ty ime Theaters, Inc.. 475 U.S. 41 (1986), and others, it is clear that a total prohibition against sexually oriented businesses in the Village would be unconstitutional. 13. The Corporate Authorities find that the location of sexually oriented businesses within the Village may have a potentially detrimental effect on the Village, its residents and businesses by unnecessarily lowering property values within the Village if said establishments were located in inappropriate areas. 14. The Corporate Authorities find that there will be potentially increased crime within the Village from inadequate regulation of sexually oriented businesses locating and operating within the Village. 15. The Corporate Authorities find that content -neutral time, place, and manner restrictions that regulate the zoning and licensing of sexually oriented businesses are necessary in the Village to minimize the potential adverse secondary effects which may accompany the location and operation of said businesses within the Village, but that said regulations must be drafted in such a manner as to allow for reasonable opportunity to open and operate sexually oriented businesses within the Village while minimizing the secondary adverse effects. NOW THEREFORE, be it ordained by the President and Board of Trustees of the Village of Elk Grove Village, a Home Rule Municipality of Cook and DuPage Counties, Illinois as follows: For the purpose of this Chapter the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular and words in the singular include the plural. The words "shall" and "will' are mandatory and not discretionary. A. EMPLOYEE means a person who works or performs in and/or for a sexually oriented business, regardless of whether or not said person is paid a salary, wage, or other compensation by the operator of said business. A person may be considered an employee under this definition even if said person is an independent contractor, provided that said person has a substantial or consistent relationship with the business of, or entertainment/services provided by the sexually oriented business. B. ESTABLISHMENT means and includes any of the following: The opening or commencement of any sexually oriented business as a new business; 2. The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; 3. The addition of any sexually oriented business to any other existing sexually oriented or non -sexually oriented business; or 4. The relocation of any sexually oriented business. C. LINGERIE MODELING BUSINESS means any place where a person who appears in a state of nudity or semi -nudity or in lingerie is provided to be observed by other persons who pay money or any form of consideration. D. NUDE MODEL STUDIO means any place where a person who appears in a state of nudity or displays "specified anatomical areas" is provided to be observed, sketched, drawn, painted, sculpted, photographed, videotaped or similarly depicted by any other person or persons who pay money or any form of consideration for such observation, sketching, drawing, painting, photography or videotaping. F. NUDITY or a STATE OF NUDITY means the appearance or to simulate the appearance of a human bare buttock, anus, pubic area, anal cleft or cleavage, male genitals, female genitals or the female breast. 19 1. "Nudity or State of Nudity" shall not mean nor include a person who appears in a State of Nudity in a modeling class operated: a. By a proprietary school, licensed by the State of Illinois; a college, junior college, or university supported entirely or partly by taxation; or b. By 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 c. In a structure which: (i) has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and (ii) where, in order to participate in a class, a student must enroll in at least three (3) days in advance of the class; and (iii) where no more than one nude model is on the premises at any one time. G. OPERATOR means and includes the owner, permit holder, custodian, manager, operator and person in charge of any permitted premises. H. LICENSED PREMISES means any premises that requires a license and that is classified as a sexually oriented business under this Chapter. I. LICENSEE means a person in whose name a license to operate a sexually oriented business has been issued as well as each individual listed as an applicant on the application for a permit. J. PERSON means an individual, proprietorship, partnership, corporation, association, or other legal entity. K. PHYSICAL CULTURE ESTABLISHMENT means any establishment which offers, provides or advertises massage, body rubs or physical contact with specified anatomical areas, regardless of whether or not said establishment has received a sexually oriented business permit under this Ordinance. Establishments which routinely provide medical services by State licensed medical practitioners, electrolysis treatment by permitted operators of electrolysis equipment, and massage by licensed massage therapists shall be excluded from the definition of adult physical culture establishments. It is not the intent of this Ordinance to regulate matters of massage establishments which are licensed and regulated by the State of Illinois Department of Professional Regulation, or by the Village as a Licensed Massage Establishment. L. SEMI-NUDE or SEMI -NUDITY means a state of dress in which clothing covers no more than the genitals, pubic region and the areola or nipple of the female breast, as well as portions of the body covered by supporting straps or devices. M. SEXUAL ENCOUNTER CENTER means a sexually oriented business or similar commercial enterprise that, as one of its primary business purposes, offers for any form of consideration: 1. Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or 2. Activities between male and female persons and/or persons of the same sex when one or more of the persons are in a state of nudity or semi -nudity. Any commercial establishment or business not otherwise defined herein where any individual, employee, operator or owner works or performs in a semi-nude state. N. SEXUALLY ORIENTED ARCADE means any place to which the public is permitted or invited wherein coin-operated 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 not more than one (1) person 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". O. SEXUALLY ORIENTED BOOKSTORE, SEXUALLY ORIENTED VIDEO STORE or SEXUALLY ORIENTED NOVELTY STORE 1. Sexually oriented bookstore, sexually oriented video store or sexually oriented novelty store means 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: a. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, computer disks, or other visual representations which are characterized by depictions or descriptions of "specified sexual activities" or "specified anatomical areas", or b. Instruments, devices or paraphernalia which are designed for use in connection with "specified sexual activities." 2. The term "principal business purpose" shall include any such commercial establishment which: a. Derives 25% or more of its gross monthly revenues from the sale or rental of the inventory and or materials described in Ol.a. and/or b., or b. Has as 25% or more of its stock in trade the inventory and/or materials described in O. l.a. and/or b., or c. Devotes 25 % or more of its interior business area to the sale or rental of the inventory and/or materials described in 0.1.a. and/or b., or d. Devotes 25% or more of its advertising to the sale or rental of the inventory and/or materials described in 0. La. and/or b.. e. Does not meet one or more of the criteria in the preceding (a) through (d), but does offer for sale or rental the inventory and/or materials described in the preceding Ola) and b) in a manner which demonstrates that the sale or rental of the aforesaid materials is a principal business purpose. A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material characterized by depictions or descriptions of "specified sexual activities" or "specified anatomical areas" and still be categorized as a SEXUALLY ORIENTED BOOKSTORE, SEXUALLY ORIENTED VIDEO STORE or SEXUALLY ORIENTED NOVELTY STORE. Such other business purposes will not serve to exempt such commercial establishments from being categorized as a SEXUALLY ORIENTED BOOKSTORE, SEXUALLY ORIENTED VIDEO STORE or SEXUALLY ORIENTED NOVELTY STORE so long as one of its Principal business purposes is the offering for sale or rental for any form of consideration any one or more of the specified materials characterized by depictions or descriptions of "specified sexual activities" or "specified anatomical areas. P. SEXUALLY ORIENTED BUSINESS means a sexually oriented arcade, sexually oriented bookstore, sexually oriented video store or sexually oriented novelty store, sexually oriented cabaret, sexually oriented motion picture theater, sexually oriented theater, physical culture establishment, lingerie modeling business, nude model studio, or sexual encounter center. Q. SEXUALLY ORIENTED MOTION PICTURE THEATER means 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 or description of "specified sexual activities" or "specified anatomical areas." R. SEXUALLY ORIENTED THEATER means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or semi -nudity or live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities". S. SPECIFIED ANATOMICAL AREAS means: 1. Less than completely and opaquely covered: 7 a. Human genitals or pubic region; or b. Buttock; or c. Areola or nipple of the female breast. 2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. T. SPECIFIED SEXUAL ACTIVITIES means: 1. Human genitals in a state of sexual stimulation, arousal or tumescence; or 2. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast(s); or 3, Sex acts, actual or simulated, including, but not limited to, intercourse, oral copulation, or sodomy and also including as examples, but not limited to, any of the following: acts of human anilingus, bestiality, buggery, cunnilingus, coprophagy, coprophilia, fellatio, flagellation, masochism, necrophilia, pederasty, pedophilia, sadism, Sado-masochism, sapphism, urolagnia or zooerasty; or 4. Masturbation, actual or simulated; or Excretory functions as part of or in connection with any of the activities set forth in 1 through 4 above. U. STRADDLE DANCE (also known as a lap dance) means the use by an employee of a sexually oriented business of any part of his/her body to touch the genital or pubic area of a person, or to touch the breast(s) of a female person, whether clothed or unclothed, while at the business; or the touching of the genital or pubic area of an employee by a person while at the business; or the touching of the breast(s) of a female employee, whether clothed or unclothed, by a person while at the business. It shall be a "straddle dance" regardless of whether the "touch" or "touching" occurs while the employee is clothed, nude, semi-nude or displaying or exposing any specified anatomical area. It shall also be a "straddle dance" regardless of whether the "touch" or "touching" is direct or through a medium. V. PUBLIC PARK means public land which has been designated for park or recreational activities including but not limited to a park, playground, nature trail, swimming pool, reservoir, athletic field, basketball or tennis court, pedestrian/bicycle path, open space, wilderness area, or similar public land within or adjacent to the Village which is under the control, operation, or management of recreation authorities. path, open space, wilderness area, or similar public land within or adjacent to the Village which is under the control, operation, or management of recreation authorities. W. RELIGIOUS INSTITUTION means any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities. X. SCHOOL means any public or private educational facility including but not limited to, child day care facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, special education schools, junior colleges, and universities. School includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school. Permitted Use 2-1 Subject to the following conditions a sexually oriented business is a permitted use in the portions of the B-2 and B-3 Zoning Districts lying east of Busse Road and south of Landmeier Road, provided no such use shall be established, or maintained within a premises which is located within five hundred (500') feet of (a) a church: (b) a school; (c) a boundary of a residential district as shown by the Village's Official Zoning Map, (d) a public park as shown by the Village's Official Zoning Map; (e) the property line of a lot devoted to residential use; (f) another sexually oriented business whether such other business is or is not within this corporate limits of the Village. 2-2 For the purposes of this Section, measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church or school, or to the nearest boundary of an affected public park, residential district, or residential lot. 2-3 For purposes of this Section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects from the closest exterior wall of the structure in which each business is located. 2-4 Sexually oriented businesses are prohibited in all other Zoned Districts and locations other than the areas set forth in Section 2-1 above.. VOTE: AYES: 6 NAYS: 0 ABSENT: 0 PASSED this Loth day of August 1999. APPROVED this 10th day of ATTEST: Ann I. Walsh Village Clerk APPROVED: Craig B. Johnson Village President 10 1999.