§ 14-63. Adult entertainment or activity.

(a)

Purpose. The town has determined that sexually oriented businesses can and do cause adverse secondary impacts on neighboring properties and on the tourism industry. The following regulations on adult entertainment and activity are for the purpose of ameliorating or preventing such adverse secondary impacts, including neighborhood blight, increases in crime, traffic and litter and decreases in property values and tourism.

(b)

Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

Adult entertainment or activity means any activity which is characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas, including adult bookstores, adult motion picture theaters, and performances of or involving the actual presence of real people which exhibit specified sexual activities or specified anatomical areas, as defined in this section.

Adult entertainment facility means without limitation any enclosed building wherein adult entertainment or activity is shown or featured for observation by patrons or offered for sale or viewing by patrons. Legal status of "adult entertainment facilities" shall be defined as those in compliance with this section, and those with a legal, but nonconforming status which were established prior to the adoption of the former ordinance.

Existing adult entertainment facility shall be defined as any adult entertainment facility which exists as a legal nonconforming use as of the adoption of the ordinance from which this section is derived.

Specified anatomical areas means:

(1)

Less than completely and opaquely covered:

a.

Human genitals, pubic region; and

b.

Buttocks; or

(2)

Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

Specified sexual activities means:

(1)

Human genitals in a state of sexual stimulation or arousal;

(2)

Acts of human masturbation, sexual intercourse or sodomy; or

(3)

Fondling or other erotic touching of human genitals, pubic regions, buttocks or female breasts.

(c)

Restrictions.

(1)

No adult entertainment or activity shall be permitted within the jurisdictional limits of the town unless such entertainment or activity occurs within an adult entertainment facility as defined in subsection (b) of this section.

(2)

No adult entertainment or activity shall be permitted within an adult entertainment facility as defined in subsection (b) of this section unless such adult entertainment facility shall have obtained a conditional use permit.

(d)

Compliance; amortization of pre-existing establishments.

(1)

Any existing adult entertainment facility established before the time the ordinance from which this section derived was adopted shall have 90 days from the date of adoption to fully comply with the provisions herein.

(2)

All other adult entertainment shall comply with the provisions herein within 90 days from the date of adoption for the ordinance from which this section is derived.

(e)

Facility requirements.

(1)

All adult entertainment facilities shall be in conformity with all applicable zoning and other town and state requirements and/or regulations, all local and state fire, health and building codes and regulations.

(2)

All adult entertainment facilities shall keep all exterior doorways and openings closed, and all exterior windows closed and covered in opaque material. No merchandise, entertainment or interior activity shall be visible from the exterior of the facility. A screening device such as a curtain or a partition shall be installed at the entryway to prevent passersby from viewing adult entertainment thru the entrance door.

(3)

All adult entertainment facilities shall have a person managing the operation on the premises during the hours of operation at all times and the name of such person shall be conspicuously displayed at or near the entrance to the facility.

(4)

All entertainment, merchandise and activities shall be confined to the interior of the facility and shall not be visible from the exterior of the facility. All open air or roof top facilities or portions of the facilities, or public access to any open air decks or roof tops from the facility shall be prohibited.

(5)

No solicitations, promotions or exhibitions shall appear on the exterior of the facility. Exterior advertising shall not include any sexually explicit pictures, photographs, or representations and must comply with chapter 40, zoning.

(6)

All entertainment, performances and dancing shall be conducted at least ten feet from any patron and shall be conducted on a stage that is raised at least two feet above the floor. Physical contact between entertainers and patrons during performances or hours of operation shall be prohibited.

(7)

Adequate lighting shall be required such that all areas inside adult entertainment facilities are illuminated for purposes of observation by enforcement personnel.

(8)

Hours of operation any adult entertainment facility shall be permitted to operate its business between the hours of 8:00 a.m. and 12:00 midnight.

(f)

Violations. Any and all violations of the provisions as described herein shall be a Class 3 misdemeanor punishable by a fine pursuant to the town's annually adopted rate and fee schedule, imprisonment for not more than 20 days, or a combination of both as may be ordered by the appropriate court.

(g)

Injunctive relief. Whenever the town council has reasonable cause to believe that any person is violating or threatening to violate any section of this Code, the town may, either before or after the institution of any other action or proceeding authorized by this Code, institute a civil action in the name of the town for injunctive relief to restrain the violation or threatened violation. The action shall be brought in the appropriate division of the General Court of Justice in New Hanover County. The institution of an action for injunctive relief under this subsection shall not relieve any party to such proceeding from any civil or criminal penalty prescribed for violations to this Code. These provisions shall not apply to existing facilities duly licensed and operating at the passage of the ordinance from which this section is derived. However, any cessation, discontinuance or change of ownership and/or use of existing nonconforming facilities shall require compliance with the provisions of this section in conformance with all other applicable ordinances of the town.

(h)

Penalties. Any violation of this section shall be defined in the town's annually adopted rates and fees schedule. Each day of continuous violation shall be treated as a separate violation. Any penalties collected by the town as a result of a violation of this section shall be retained by the town to defer the costs of the administration and enforcement of this section.

(Code 1977, § 6-1066; Code 1986, § 8-69; Ord. of 8-14-1979; Ord. No. 93-308, 3-16-1993; Ord. No. 94-339, 3-8-1994; Ord. No. 98-421, 3-10-1998; Ord. No. 13-915, 6-11-2013)

State law reference

General ordinance-making power, G.S. 160A-174; criminal penalties, G.S. 160A-175; obscene literature and exhibitions, G.S. 14-190.1—14-190.9.