[HISTORY: Adopted by the City Council of the City of Galax 9-12-2005.
Amendments noted where applicable]
The following words, terms and phrases, when used in this chapter shall
have the meaning ascribed to them in this section, except where the context
clearly indicates a different meaning:
Any place to which the public is permitted or invited wherein coin-operated,
slug-operated, or for any form of consideration, electronically, electrically,
or mechanically controlled still or motion-picture machines, projectors, video
or laser disc players, 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.
An establishment having as a substantial or significant portion of
its stock-in-trade books, magazines, other periodicals, videotapes, computer
disks, CD-ROMs, DVD-ROMs, virtual reality devices or similar media that are
distinguished or characterized by their emphasis on matter depicting, describing
or relating to specified sexual activities or specified anatomical areas.
A nightclub, bar, restaurant, or similar commercial establishment
which regularly features:
Persons who appear in a state of nudity or seminude;
Live performances which are characterized by the exposure of specific
anatomical areas or by specified sexual activities; or
Films, motion pictures, videocassettes, slides or other photographic
reproductions which are characterized by the depiction or description of specified
sexual activities or specified anatomical areas.
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any form of consideration; provides
patrons with closed-circuit television transmissions, films, motion pictures,
videocassettes, slides, or other photographic reproductions which are characterized
by the depiction or description of specified sexual activities or specified
anatomical areas; and has a sign visible from the public right-of-way which
advertises the availability of this adult type of photographic reproductions;
Offers a sleeping room for rent for a period of time that is less than
10 hours; or
Allows a tenant or occupant of a sleeping room to subrent the room for
a period of time that is less than 10 hours.
A commercial establishment where, for any form of consideration,
films, motion pictures, videocassettes, slides or similar photographic reproductions
are regularly shown which are characterized by the depiction or description
of specified sexual activities or specified anatomical areas.
An establishment having as a significant portion of its stock-in-trade
instruments, devices, or paraphernalia which are designed for use in connection
with specified sexual activities.
A theater, concert hall, auditorium, or similar commercial establishments
which regularly features persons who appear in a state of nudity or seminude,
or live performances which are characterized by the exposure of specified
anatomical areas or by specified sexual activities.
A person who performs any service on the premises of a sexually oriented
business or, a full-time, part-time or contract basis, whether or not the
person is denominated an employee, independent contractor, agent or otherwise
and whether or not said person is paid a salary, wage or other compensation
by the operator of said business. "Employee" does not include a person exclusively
on the premises for repair or maintenance of the premises or equipment on
the premises, or for the delivery of goods to the premises.
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.
A person or business association who furnishes, offers to furnish,
or advertises to furnish escorts as one of its primary business purposes for
a fee, tip, or other consideration.
Includes any of the following:
The opening or commencement of any sexually oriented business as new
business;
The conversion of an existing business, whether or not a sexually oriented
business, to any sexually oriented business;
The additions of any sexually oriented business to any other existing
sexually oriented business; or
The relocation of any sexually oriented business.
Any place where a person who appears seminude, in a state of nudity,
or who displays specified anatomical areas and is provided to be observed,
sketched, drawn, painted, sculptured, photographed, or similarly depicted
by other persons who pay money or any form of consideration. "Nude model studio"
shall not include a proprietary school licensed by the State of Virginia or
a college, junior college or university supported entirely or in part by public
taxation; a private college or university which maintains and operates educational
program in which credits are transferable to a college, junior college, or
university supported entirely or partly by taxation; or in a structure:
That has no sign visible from the exterior of the structure and no other
advertising that indicates a nude or seminude person is available for viewing;
Where in order to participate in a class a student must enroll at least
three days in advance of the class; and
Where no more than one nude or seminude model is on the premises at
any one time.
The showing of the human male or female genitals, pubic area, vulva,
anus, anal cleft or cleavage with less than a fully opaque covering, the showing
of the female breast with less than a fully opaque covering of any part of
the nipple, or the showing of the covered male genitals in a discernibly turgid
state.
A person in whose name or permit to operate a sexually oriented business
has been issued, as well as the individual instead as an applicant on the
application for a license; and in the case of an employee, a person in whose
name a license has been issued authorizing employment in a sexually oriented
business.
An individual, proprietorship, partnership, corporation, association,
or other legal entity.
The showing of the female breast below a horizontal line across the
top of the areola at its highest point or the showing of the male or female
buttocks. 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, skirt, leotard, bathing suit,
or other wearing apparel provided the areola is not exposed in whole or in
part.
A business or commercial enterprise that, as one of its principal
business purposes, offers for any form of consideration:
An adult arcade, adult bookstore, adult novelty store, adult video
store, adult live entertainment, adult motel, adult movie theater, adult theater,
escort agency, nude model studio, or sexual encounter center.
Less than completely and opaquely covered human genitals, pubic region,
buttock, or female breast below a point immediately above the top of the areola;
or human male genitals in a discernibly turgid state, even if completely and
opaquely covered.
Human genitals in a state of sexual stimulation or arousal; sexual
intercourse or sodomy; or fondling or other erotic touching of human genitals,
pubic region, buttock or female breast, including masturbation.
The increase in floor areas occupied by the business by the business
by 25% or more, as the floor areas exist as of the effective date of this
chapter.
A.
Application; issuance; duration; renewal.
(1)
Every person either operating or desiring to operate a sexually oriented business, in addition to obtaining a business license from the Commissioner of the Revenue and proof from the Department of Planning and Zoning that the location requirements set forth in § 119-4 below are satisfied, shall apply to the Chief of Police, or his designee, for a permit to operate the sexually oriented business. Each such application shall be accompanied by a fee in the amount of $200.
(2)
Information required on and with the permit application
shall include, but not be limited to, the following:
(a)
The applicant's full name, age, sex, race, weight,
height, hair and eye color, address, telephone number, date and place of birth
and social security number.
(b)
Names and addresses of references.
(c)
Whether the applicant has been convicted of any felony
or misdemeanor and, if so, the nature of the offense, when and where convicted
and the penalty or punishment assessed.
(d)
Whether the applicant has been denied a permit or has
had a permit revoked under any statute or ordinance requiring a permit to
operate sexually oriented business and, if so, when and where the denial or
revocation occurred.
(e)
Photograph and fingerprints of applicant.
(f)
Name and address of the business for which a permit is
sought.
(g)
A criminal records check of the applicant shall be provided
by the applicant with the application, along with the applicant's written
authorization to investigate whether the information provided by the applicant
is true.
(h)
A criminal records check for each initial employee or
proposed employee must be provided by the applicant with the application,
along with the employee or proposed employee's written authorization
to investigate whether the information provided by the applicant is true.
For each new employee or a proposed employee the applicant/permittee must
submit a criminal records check for that individual along with that person's
written authorization to conduct further investigation.
(i)
The location of the proposed sexually oriented business,
including a legal description of the property, street address and telephone
number(s), if any.
(j)
A sketch or diagram showing the configuration of the
premises, including a statement of total floor space occupied by the business.
The sketch or diagram need not be professionally prepared, but it must be
drawn to a designated scale or drawn with marked dimension of the interior
of the premises to an accuracy of plus or minus six inches.
(k)
A current certificate and straight-line drawing prepared
within 30 days prior to application by a registered land surveyor depicting
the property lines and the structures containing any existing sexually oriented
businesses within 1,500 feet of the property to be certified; the property
lines of any established religious institution/synagogue, school, or public
park or recreation area within 2,500 feet of the property to be certified.
For purposes of this section, a use shall be considered existing or established
if it is in existence at the time an application is submitted.
(l)
If an applicant wishes to operate a sexually oriented business, other than an adult motel, which shall exhibit on the premises, in a viewing room or booth of less than 150 square feet of floor space, films, videocassettes, other video reproductions, or live entertainment which depict specified sexual activities or specified anatomical areas, then the applicant shall comply with the application requirements set forth in § 119-5.
(m)
Written declaration, dated and signed by the applicant,
certifying that the information contained in the application is true and correct.
(3)
For a corporation, partnership or other legal entity,
"applicant" includes each officer, director, shareholder, partner or principal
of the entity and the manager of the store.
(4)
The Chief of Police or his designee shall act on the
application within 60 days of the filing of an application containing all
the information required by this section.
(5)
The applicant shall be issued a permit unless the City's
investigation or the information furnished by the applicant shows any of the
following:
(a)
The applicant has been convicted of a felony within the
past five years;
(b)
The applicant has been convicted of a crime of moral
turpitude or a crime involving the obscenity laws within the past three years;
(c)
The applicant has been denied a permit or has had a permit
revoked within the past 12 months under any statute or ordinance requiring
a permit to operate an adult bookstore or adult video store; or
(6)
The permit shall be valid for 12 months from the date
thereof and may be renewed in the same manner as it was initially obtained.
The application fee for a renewal permit shall be $100. No permit shall be
transferable.
(7)
Any changes in the ownership or principals of the business
entity to which the permit is issued will automatically make the permit void.
Such changes shall be reported to the Chief of Police or his designee, and
a new application may be submitted for review.
B.
Revocation of permit.
(1)
The Chief of Police or his designee may revoke any permit
issued pursuant to this chapter for fraud, misrepresentation or any false
statement contained in the application; upon conviction of the applicant for
any felony, crime involving moral turpitude, or crime involving the obscenity
laws after the permit is issued; for failure to comply with the provisions
of this chapter; or if the applicant's business fails to comply with
applicable City or state laws or regulations, including this chapter.
(2)
If the Chief of Police or his designee revokes a permit,
he shall notify the permittee in writing of such action, the reasons for the
revocation, and the permittee's right to request a hearing. To receive
a hearing, the permittee must make a written hearing request which must be
received by the Chief of Police, or his designee, within 10 days of the date
of the revocation notice. If a timely hearing request is not received by the
Chief of Police, or his designee, the decision shall be final. If a hearing
is properly requested, it shall be held within 10 days from receipt of the
hearing request. The hearing shall be presided over by the Chief of Police
or his designee. The permittee shall have the right to present evidence and
argument or to have counsel do so. Within a reasonable time after the hearing,
the Chief of Police, or his designee, shall render his decision which shall
be final. The permittee must discontinue operation of its business when the
decision to revoke the permit becomes final.
(3)
When protection of public health, safety or general welfare requires such action, the Chief of Police, or his designee, may immediately revoke a permit issued under this chapter by so stating in a written notice to the permittee. When action is taken pursuant to this subsection, the permittee shall immediately discontinue operation of its business, but shall have the right to a hearing as stated in Subsection B(2).
C.
Availability of prompt judicial review. After denial
of an initial or renewal application or after revocation of a permit by the
Chief of Police or his designee, the applicant or permittee may seek prompt
judicial review of such administrative action in the circuit court of the
County. Any such request for judicial review shall be filed within 30 days
of when the administrative action becomes final.
An applicant or licensee shall permit representatives of the Chief of
Police, Health Department, Fire Department, Zoning Department, or other City
departments or agencies to inspect the premises of a sexually oriented business
for the purpose of ensuring compliance with the law, at any time it is occupied
or open for business.
A.
Permitted zoning districts. No sexually oriented business
may be operated in any zoning district except those districts designated B2.
B.
Setback requirements. No sexually oriented business may
be operated within 1,000 feet of the following:
(1)
A church, synagogue, mosque, temple or building which
is used primarily for religious worship and related religious activities.
(2)
A public or private educational facility including but
not limited to child day-care facilities, nursery schools, preschools, kindergartens,
elementary schools, private schools, intermediate schools, junior high schools,
middle schools, high schools, vocational schools, secondary schools, continuation
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;
(4)
A public park or recreational area which has been designated
for park or recreational activities including but not limited to a park, playground,
nature trails, swimming pool, reservoir, athletic field, basketball or tennis
courts, pedestrian/bicycle paths, wilderness areas, or other similar public
land within the City which is under the control, operation, or management
of the City park and recreation authorities.
(6)
An entertainment business which is oriented primarily
towards children or family entertainment;
(7)
A licensed premises, licensed pursuant to the alcoholic
beverage control regulations of the state;
(8)
Any motel, hotel, or travel lodge; or
(9)
Any truck stop or truck rest area.
C.
Other requirements. No sexually oriented business may
be operated on any primary road or thoroughfare.
A person who operates or causes to be operated a sexually oriented business,
other than an adult motel, which exhibits on the premises in a viewing room
of less than 150 square feet of floor space, a film, videocassette, live entertainment,
or other video reproduction which depicts specified sexual activities or specified
anatomical area, shall comply with the following requirements:
A.
Upon application for a sexually oriented business permit,
the application shall be accompanied by a diagram of the premises showing
a plan thereof specifying the location of one or more managers stations and
the location of all overhead lighting fixtures and designating any portion
of the premises in which patrons will not be permitted. A manager's station
may not exceed 32 square feet of floor area. The diagram shall also designate
the place at which the permit will be conspicuously posted, if granted. A
professionally prepared diagram in the nature of an engineer's or architect's
blueprint shall not be required; however, each diagram should be oriented
to the north or to some designated street or object and should be drawn to
a designated scale or with marked dimensions sufficient to show the various
internal dimension of tall areas of the interior of the premises to an accuracy
of plus or minus six inches. The City may waive the foregoing diagram for
renewal applications if the applicant adopts a diagram that was previously
submitted and certified that the configuration of the premises has not been
altered since it was prepared.
B.
The application shall be sworn to be true and correct
by the applicant.
C.
No alteration in the configuration or location of a manger's
station may be made without the prior approval of the City.
D.
It is the duty of the permittee of the premises to ensure
that at least one permitted employee is on duty and situated in each manager's
station at all times that any patron is present inside the premises.
E.
The interior of the premises shall be configured in such
a manner that there is an unobstructed view from a manager's station
of every area of the premises to which any patron is permitted access for
any purpose, excluding rest rooms. Rest rooms may not contain video reproduction
equipment. If the premises has two or more manager's stations designated,
then the interior of the premises shall be configured in such a manner that
there is an unobstructed view of each area of the premises to which any patron
is permitted access for any purpose from at least one of the manager's
stations. The view required in this subsection must be by direct line of sight
from the manager's station.
F.
It shall be the duty of the permittee to ensure that the view area specified in Subsection E remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times, to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection A of this section.
G.
No viewing room may be occupied by more than one person
at any time.
H.
The premises shall be equipped with overhead lighting
fixtures of sufficient intensity to illuminate every place to which patrons
are permitted access at an illumination of not less than five-foot-candles
as measured at the floor level.
I.
It shall be the duty of the permittee to ensure that
the illumination described above is maintained at all times that any patron
is present in the premises.
J.
No permittee shall allow openings of any kind to exist
between viewing rooms or booths.
K.
There shall be no opening of any kind between viewing
booths or rooms.
L.
The permittee shall, during each business day, regularly
inspect the walls between the viewing booths to determine if any opening or
holes exist.
M.
The permittee shall cause all floor coverings in viewing
booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting.
N.
The permittee shall cause all wall surfaces and ceiling
surfaces in viewing booths to be constructed of, or permanently covered by,
nonporous, easily cleanable material. No wood, plywood composition board or
other porous material shall be used within 48 inches of the floor.
A.
Operators of sexually oriented businesses shall not allow
persons to appear in a state of nudity or depict specified sexual activities.
B.
Operators of sexually oriented businesses shall not allow
persons to appear in a seminude condition unless the person is an employee
who, while seminude, shall be at least 10 feet from any patron or customer
and on a stage at least two feet from the floor.
C.
Operators of sexually oriented businesses shall not allow
employees to solicit any pay or gratuity from any patron or customer or for
any patron or customer to pay or give any gratuity to any employee, while
said employee is seminude in a sexually oriented business.
D.
Operators of sexually oriented businesses shall not allow
employees, while seminude, to touch a customer or the clothing of a customer.
Persons under the age of 18 years are not allowed on the premises of
a sexually oriented business.
No sexually oriented business, except for an adult motel, may remain
open at any time between the hours of 1:00 a.m. and 8:00 a.m. on weekdays
and Saturdays, and 1:00 a.m. and 12:00 noon on Sundays.
It is a defense to prosecution under § 119-8 that a person appearing in a state of nudity did so in a modeling class operated:
A.
By a proprietary school, licensed by the State of Virginia:
a college, junior college, or university supported entirely or partly by taxation;
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;
(1)
Which has no sign visible from the exterior of the structure
and no other advertising that indicates a nude person is available for viewing;
(2)
Where, in order to participate in a class a student must
enroll at least three days in advance of the class; and
(3)
Where no more than one nude model is on the premises
at any one time.
A person who operates or causes to be operated a sexually oriented business
without a valid permit or in violation of this chapter is subject to a suit
for injunction as well as prosecution for criminal violations. Such violations
shall be punishable by a fine of $2,500 or imprisonment for a term not to
exceed 12 months or both. Each day a sexually oriented business so operates
shall constitute a separate offense or violation.
If any section, subsection, or clause of this chapter shall be deemed
to be unconstitutional or otherwise invalid, the validity of the remaining
sections, subsections, and clauses shall not be affected.
This chapter is effective immediately.
