Adult Use City of St. Petersburg City Code Chapter 16, Land Development Regulations

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1 Section Adult Use Sections: Purpose Legislative Findings Regulation of Obscenity and Message Establishments subject to state law Definitions Location of Adult Uses Adult Use Permits Variances from Distance Requirements Exterior Portions and Signage Enforcement Purpose The intent of the City Council of the City of St. Petersburg, Florida, in adopting the adult use regulation ordinance is to establish reasonable and uniform regulations that will protect the health, peace, safety, and general welfare of the people of St. Petersburg within the constitutional limitations on the City s ability to regulate adult use businesses. The provisions of this section, acting alone, or together with other applicable ordinances of St. Petersburg, have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including adult material. Similarly, it is neither the intent nor effect of this section to restrict or deny access by adults to adult materials or expression protected by the First Amendment or to deny access by distributors and exhibitors of adult uses to their intended market Legislative findings A. The concerns raised and findings made in the WHEREAS clauses listed in Ordinance 298-G are hereby incorporated by reference. B. The concerns raised in the findings incorporated above raise substantial governmental concerns. C. Adult use establishments have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns Regulation of obscenity and massage establishments subject to state law It is not the intent of this section to legislate with respect to matters of obscenity because these matters are regulated by state law, including F.S. ch. 847, or massage establishments because these matters are regulated by state law, F.S. ch. 480, and the Department of Professional Regulation, Board of Massage Definitions. For the purposes of this Section, the following words shall have the following meanings. Adult Arcade means a place to which the public is permitted or invited wherein coin-operated or slugoperated 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 the depicting or describing of specified sexual activities or specified anatomical areas. Adult materials may be sold at an adult arcade. 1 EFFECTIVE DATE

2 Adult Bookstore means an establishment which sells or rents adult material, where either the gross income from the sale and rental of adult material comprises more than ten percent of the gross income from the sale and rental of goods and services at the establishment, or the individual items of adult material offered for sale and rental comprise more than 25 percent of the individual items publicly displayed at the establishment as stock in trade. Any establishment at which any adult use activity other than the sale or rental of adult material occurs shall not be classified as an adult bookstore and shall mandate its classification as a use other than an adult bookstore. There shall be no adult booths or any other means of viewing films, videos or other visual recordings allowed in an adult bookstore. Adult Booth means a separate enclosure inside an adult use establishment accessible to any person, regardless of whether a fee is charged for access or the "adult booth" is fully enclosed by means of a door, curtain or other material. The term "adult booth" includes, but is not limited to, a "peep show" booth, adult arcade booth, or other booth used to view "adult material." The term "adult booth" does not include a foyer through which any person can enter or exit the establishment or a restroom. Adult Cabaret means any bar, dance hall, restaurant, or other place of business which features persons who engage in specified sexual activities or display specified anatomical areas. Adult materials shall not be sold or rented at an adult cabaret. Chapter 3 provides additional requirements for businesses licensed for the consumption of alcoholic beverages on the premises. Adult Material means any one or more of the following, regardless of whether it is new or used: (1) Books, magazines, periodicals or other printed matter, paintings, drawings, or other publications or graphic media, or photographs, films, motion pictures, video cassettes, audio cassettes, DVDs, or disks, slides, or other visual representations, or recordings, or other audio matter, which have as their primary or dominant theme matter depicting, illustrating, describing or relating to a specified sexual activities or specified anatomical areas; or (2) Instruments, novelties, devices or paraphernalia which are designed for use in connection with specified sexual activities not including those items designed and used specifically for the purpose of preventing conception. Adult Photographic or Modeling Studio means any business establishment which offers or advertises as its primary business stock in trade, the use of its premises for the purpose of photographing or exhibiting specified sexual activities or specified anatomical areas or the modeling of apparel that exhibits specified anatomical areas. Adult materials shall not be sold or rented at an adult photographic or modeling studio. Adult Physical Culture Establishment means any business establishment which offers or advertises massage, body rubs, body scrubs, or other physical contact with specified anatomical areas whether or not licensed. Business establishments which routinely provide medical services by state licensed medical practitioners and electrolysis treatment by licensed operators of electrolysis equipment shall be excluded from this definition. Adult materials shall not be sold or rented at an adult physical culture establishment. Adult Theater means an enclosed building or an enclosed space within a building, or an open-air area used for presenting either filmed or live plays, dances, or other performances, either by individuals or groups, distinguished or characterized by an emphasis on material depicting, describing, or relating to specified sexual activities or specified anatomical areas for observation by patrons therein. Adult materials shall not be sold or rented at an adult theater. Business entity means any and all persons, natural or artificial, including but not limited to any individual, firm, corporation or association operating or proposed to operate for commercial or pecuniary gain. "Operated for commercial or pecuniary gain" does not depend upon actual profit or loss and is presumed where the establishment is subject to the business tax. "Business entity" includes any enterprise or venture in which a person sells, buys, exchanges, barters, deals or represents the dealing in any thing or article of value, or renders services for compensation. 2 EFFECTIVE DATE

3 Child Care Facility See Matrix: Use Permissions and Parking Requirements.. Church or house of worship. See Matrix: Use Permissions and Parking Requirements. Effective date means the date on which Ordinance 298-G was adopted (December 11, 1997). Establishment means any portion of a site or premises where a use, or activity or operation related to a use, is conducted. Establishment or Commencement of Business or Establish or Commence Business. Includes but is not limited to any of the following: (1) The opening or commencement of any use or business as a new business; (2) The conversion of an existing business to another use or business; (3) The addition of any use or business to any other existing use or business; (4) The relocation of any use or business; or (5) The continuation of an existing use or business regardless of whether it is in compliance with the requirements of this Chapter. For purposes of determining the date of commencement of a business under this section, evidence in the form of business tax receipts, affidavits, valid receipts or business records may be utilized. Any decision regarding a date of commencement may be appealed to the City Council. Appeals relating to an adult use shall be heard and decided by the City Council within thirty (30) days of receipt of the appeal by the City Clerk. Mixed Use Zoning District means any zoning district that allows single or multi-family residential use as a permitted or special exception use alone or in any combination with office, commercial or industrial uses. Public Park means a tract of land which is owned or controlled by the City and which is designated as a park as set forth in the City Charter. School means a lot or site upon which there is a public or private school. The term school does not include a lot or site upon which there is a post secondary school. Specified Anatomical Area. Any of the following: (1) Less than completely or opaquely covered: a. human genitals or pubic region; or b. cleavage of the nates of the human buttocks; or c. that portion of the human female breast directly or laterally below a point immediately above the top of the areola; this definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other wearing apparel, provided the areola is not so exposed. (2) Human male genitals in a discernible turgid state, even if completely and opaquely covered. 3 EFFECTIVE DATE

4 (3) Any covering, tape, pastie, latex spray or paint or other device which simulates or otherwise gives the appearance of the display or exposure of any of the specified anatomical areas listed in subsections (1) and (2) of this definition. Specified Sexual Activity means any of the following: (1) Human genitals in a state of sexual stimulation, arousal or tumescence; or (2) Acts of anilingus, bestiality, buggery, cunnilingus, coprophagy, coprophilia, fellation, flagellation, masochism, masturbation, necrophilia, pederasty, pedophilia, sadism, sadomasochism, sapphism, sexual intercourse, sodomy, urolagnia or zooerasty; or (3) Fondling or other erotic touching of human genitals, pubic region, buttock, anus or female breast; or (4) Excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (3) of this definition Location of adult uses A. No adult use establishment may be located within 400 feet of any of the following uses which use is legally in existence or has received legal authority to locate on a site, lot or parcel: 1. Any property within a zoning district with an NS, NT, NSM, NPUD or NMH designation; 2. Any portion of a mixed use zoning district developed and utilized as a single or multifamily residential use; or 3. Any church, school, child care facility or public park; B. No adult use establishment may be located within 750 feet of any other adult use establishment which is legally in existence or has received legal authority to locate on a site, lot or parcel. C. No district described in subsection A.1 or any of the uses described in subsections A.2 or A.3 may be located within 400 feet of an adult use establishment which is legally in existence or has received legal authority to locate on a site, lot or parcel. Such legal authority shall be presumed where there is a valid adult use permit for the adult use establishment on the site, lot or parcel. D. To determine compliance with the distance requirements of subsections A, B and C above, distances shall be measured along a straight line from the nearest property line of a property within a residential district or the nearest property line of a church, school, child care facility, public park, residential use in a mixed use zoning district or adult use establishment to the closest property line of the adult use establishment. In a multi-tenant or multi-user building, such as a shopping center, the distance shall be measured from the unit or closest portion of the building, unit or structure actually utilized by and containing or being utilized by any portion of the use. E. Adult use establishments shall have a site plan reviewed and approved by the Development Review Commission. The Development Review Commission shall review all requests for variances except variances from the distance requirements. Adult use establishments shall follow the normal procedures and criteria for site plan and variance requests except that the Development Review Commission shall approve, deny or approve with conditions the site plan or variance within sixty (60) days of the filing of a completed application. 4 EFFECTIVE DATE

5 F. Nothing in this section shall be construed to allow the operation of any business or the performance of any activity which is prohibited under any other part of this section, federal, state or county law, other ordinances of the City or the City Code. Additionally, nothing in this section shall be construed to authorize, allow or permit the establishment of any business, the performance of any activity, or the possession of any item, which is obscene under the judicially established definition of obscenity. G. In the event that a court of competent jurisdiction determines that the distance requirement in subsection A is unconstitutional or unenforceable, then that distance shall become 350 feet. In the event that a court of competent jurisdiction determines that the distance requirement is subsection B is unconstitutional or unenforceable, then that distance shall become 700 feet Adult use permits A. No adult use establishment shall be allowed to commence business without first obtaining a valid adult use permit. Any business entity or person desiring to locate, operate, continue to operate or establish or commence business as an adult use establishment, shall be required to obtain an adult use permit from the POD before the establishment or commencement of business as an adult use establishment B. Procedures. For permit procedures, see, Applications and Procedures Section Variances from distance requirements. A. No variance from the distance requirement between two adult uses may be granted and the POD shall not accept any applications. B. The granting of a variance by the City Council shall not exempt the applicant from any other provisions of this section other than the distance requirement. C. Procedures. For variance procedures, see the Applications and Procedures Section. D. Standards for Review. The criteria set forth herein shall be the only criteria applied by the City Council in considering variances from the distance requirement. In reviewing an application, the POD and City Council shall consider the following criteria: 1. That a sufficient physical barrier separates the use for which a variance is being sought from the non-adult uses(s) so as to substantially fulfill the purpose of the distance requirement in effectively buffering the non-adult use. Such physical barriers may include, but are not limited to, limited access streets or highways, major streets, walls, buildings or other structures, natural or manmade waterways, or the actual distance between the buildings is sufficiently in excess of the distance requirement. 2. That the strict application of the provisions of this section will work an undue hardship unique to the applicant for a particular location. 3. That all other applicable provisions of this section and the codes and ordinances of the City will be observed. 4. The burden of proof shall be on the applicant to show that it has met the requirements to receive a variance Exterior portions and signage. 5 EFFECTIVE DATE

6 A. It shall be unlawful for an owner or operator of an adult use establishment to allow the adult material or the specified anatomical areas or specified sexual activities of the establishment to be visible from any point outside the adult use establishment. B. It shall be unlawful for the owner or operator of an adult use establishment to allow the exterior portions of an adult use establishment dealing with the color, scale, mass, building pattern, facade, articulation and architectural style to be inconsistent or incompatible with the structures on abutting properties. Such consistency and compatibility shall be required for any changes to the exterior of the existing building, including but not limited to roof, building materials, windows and porches and shall apply to any building additions or new development. C. Exterior surfaces shall be painted or covered and shall be painted or covered with a primary body color which is a neutral color with subdued accents highlighting architectural features compatible with the surrounding uses as approved by the POD within 30 days of a written request therefore. D. All exterior areas shall be illuminated by security lights which comply with the requirements set forth in this Chapter. E. Buffers shall be required in all rear and interior side yards. Buffers shall be at least six feet in height and made of masonry or wood. The exterior portion of wood fences must face the abutting properties. Fences or walls must be painted or stained in a color compatible with the principal structure. F. The applicant must file a completed CPTED application. G. Public access to an adult use establishment shall be only from an approved parking area or the front or street side yard. Other access (including back door or alley access) shall be restricted to employees of the business, or to activities related to the operation of such businesses (i.e. the delivery of products or goods). H. Adult use establishments shall comply with the City Codes relating to signage and the following additional requirements (where these provisions conflict the more restrictive provisions shall apply). 1. Nonconforming adult uses shall not have more than one freestanding sign. 2. Window sign shall not be exempt signage but shall be included in the total amount of signage allowed. 3. The total amount of allowed signage shall be reduced to 50% of the signage allowed by the Sign Section. 4. Signage shall be compatible with the approved color scheme. 5. Signs and exterior portions of the building shall not contain any flashing lights and shall contain no photographs, silhouettes, drawings or pictorial representation of any portion of the human body. I. Freestanding signs shall contain only the name of the establishment and the type of use (i.e. adult bookstore, adult cabaret, etc.) Enforcement 6 EFFECTIVE DATE

7 A. If an adult use establishment is operating contrary to the requirements of this section, the POD shall notify the owner or operator of the violation and shall allow a 30-day period in which to correct the violation. Subsequent inspections for violations of the same provisions shall not require any notice prior to citation because the owner or operator and its employees are deemed to have been placed on notice of the requirements of this section by the first notice and cure period. Citation for these violations shall be no more frequent than every 30 days. B. The filing of an application for a variance precludes citation for those provisions until the expiration of such time as the City Council or Development Review Commission, in their conditions granting any variance, provide for correction of the violation consistent with the variance, or deny the request. C. Violations of this Section are punishable as provided in section 1-7. D. In addition to the penalties provided for violations in section 1-7, adult use establishments not in conformance with the requirements of this section shall be subject to the appropriate civil action, including injunctive relief, in the court of appropriate jurisdiction for their abatement. Except as provided in subsections A and B, each day that any violation is committed shall constitute a separate offense. E. It is the responsibility of the licensee, owner, employee or operator of an adult use establishment to ensure compliance with this section, notwithstanding the issuance of an occupational license, building permit, or any other governmental permit. 7 EFFECTIVE DATE