Windsor Municipal Code Art. 2 Definitions

The definitions contained in this section shall govern the construction of this chapter.

a. Adult arcade means any commercial establishment 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 any other image-producing devices are maintained to show images to five (5) or fewer persons per machine at any one (1) time, and where the images so displayed are distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas.

b. Adult bookstore, adult novelty store or adult video store means a commercial establishment which, as a regular and substantial course of conduct, offers for sale or rental for any form of consideration any one (1) or more of the following:

1. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, any material in digital format (including, but not limited to, compact disc (CD) or digital video disc (DVD)), slides, or other visual representations which are distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas; or

2. Instruments, devices, or paraphernalia, except for clothing, which are designed for use in connection with specified sexual activities.

The phrase "regular and substantial course of conduct" shall be construed with reference to all relevant factors, including but not limited to any one (1) or more of the following:

3. The business devotes more than twenty-five (25%) percent of its retail inventory (not measured by the number of items but rather by the cost to the business owner of the inventory) to merchandise distinguished or characterized by an emphasis upon specified sexual activities or specified anatomical areas.

4. The business devotes more than twenty-five (25%) percent of the retail floor area to merchandise that is distinguished or characterized by an emphasis upon specified sexual activities and specified anatomical areas.

5. The retail value of merchandise that is distinguished or characterized by an emphasis upon specified sexual activities and specified anatomical areas exceeds twenty-five (25%) percent of the total retail value of inventory offered in each of the following categories: (a) books, (b) magazines, (c) video tapes or any material in digital format (including, but not limited to, compact disc (CD) or digital video disc (DVD)), for sale or rental, (d) novelties and devices, and (e) on-premises viewing of images, films, and or videos.

6. Gross revenue derived from merchandise in any category set forth in subsection b.5 above exceeds twenty-five (25%) percent of the total gross revenue for the category.

There is a rebuttable presumption that a business constitutes an adult bookstore, adult novelty store or adult video store where the business: (a) offers or advertises merchandise that is distinguished or characterized by an emphasis upon specified sexual activities or specified anatomical areas, and (b) fails to make revenue and inventory-related business records available to the Town upon seventy-two (72) hours' notice.

c. Adult cabaret means a nightclub, bar, restaurant, or similar commercial establishment which, as a regular and substantial course or conduct, features:

1. Persons who appear in a state of nudity or semi-nude condition; or

2. Live performances which are distinguished or characterized by an emphasis upon the exposure of specified anatomical areas or by specified sexual activities; or

3. Films, motion pictures, video cassettes, any material in digital format (including, but not limited to, compact disc (CD) or digital video disc (DVD)), slides or other photographic reproductions which are distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas.

The phrase "regular and substantial course of conduct" shall be construed with reference to all relevant factors, including but not limited to the following:

4. The proportion of the business' performances or services that is distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation specified sexual activities or specified anatomical areas.

5. The proportion of the business' revenue that is attributable to performances or services that are distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation specified sexual activities or specified anatomical areas.

d. Adult motels means 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, video cassettes, any materials in digital format (including, but not limited to, compact disc (CD) or digital video disc (DVD)), slides, or other photographic reproductions which are distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas; and has any of the following characteristics:

1. A sign visible from the public right-of-way which advertises the availability of the above-described photographic reproductions; or

2. Offers a sleeping room for rent for a period of time that is less than ten (10) hours; or

3. Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than ten (10) hours.

e. Adult motion picture theater means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, any materials in digital format (including, but not limited to, compact disc (CD) or digital video disc (DVD)), slides, or similar photographic reproductions are regularly shown which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas, for observation by five (5) or more patrons at any one (1) time.

The phrase "regularly shown" shall be construed with reference to all relevant factors, including but not limited to the following:

1. The proportion of the theater's photographic reproductions that are distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas.

2. The number of photographic reproductions shown at the theater each month that are distinguished or characterized by an emphasis upon depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas.

3. The proportion of the business' revenue that is attributable to entertainment that is distinguished or characterized by an emphasis upon the display or depiction of specified sexual activities or specified anatomical areas.

f. Adult-oriented businesses means any of the following commercial establishments where patrons are permitted or invited: an adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, nude model studio, or sexual encounter center.

g. Adult theater means a theater, concert hall, auditorium, or similar commercial establishment which as a regular and substantial course of conduct features persons who appear in a state of nudity or semi-nude condition and/or features live performances which are distinguished or characterized by an emphasis upon the exposure of specified anatomical areas or by specified sexual activities.

The phrase "regular and substantial course of conduct" shall be construed with reference to all relevant factors, including but not limited to the following:

1. The proportion of the business' performances or services that is distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation specified sexual activities or specified anatomical areas.

2. The proportion of the business' revenue that is attributable to entertainment that is distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation specified sexual activities or specified anatomical areas.

h. Distinguished or characterized by an emphasis upon means the dominant or essential theme of the object described by such phrase. For instance, when the phrase refers to films "which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas," the films so described are those whose dominant or predominant character and theme are the depiction, description, showing, or simulation of the enumerated sexual activities or anatomical areas.

i. Employee means a person who performs any service on the premises of an adult-oriented business on 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 of the adult-oriented business to render only repair or maintenance services or to deliver equipment or goods to the adult-oriented business as long as such persons are not in a state of nudity or in a semi-nude condition.

j. Establishment of an adult-oriented business means and includes any of the following:

1. The opening or commencement of any adult-oriented business as a new business;

2. The conversion of an existing business, whether or not an adult-oriented business, to any other adult-oriented business;

3. The addition of any adult-oriented business to any other existing adult-oriented business; or

4. The relocation of any adult-oriented business.

k. Fabric means cloth made by weaving or knitting natural or synthetic fibers and filaments.

l. Hotel means a building where lodging and possibly meals, entertainment and other various personal services are provided to the public for some form of consideration.

m. Licensee means: (i) a person in whose name a license to operate an adult-oriented business has been issued, as well as the person listed as an applicant on the application for a license; and (ii) in the case of an employee, a person in whose name a license has been issued authorizing employment in an adult-oriented business.

n. Motel means a hotel in which the rooms are accessible from the business parking areas.

o. Nude model studio means any place where a person: (a) appears semi-nude, in a state of nudity, or displays specified anatomical areas; and (b) 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 California 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 programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or in a structure:

1. That has no sign visible from the exterior of the structure and no other advertising that indicates a person is a state of nudity or a semi-nude condition is available for viewing;

2. Where, in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and

3. Where no more than one (1) nude or semi-nude model is on the premises at any one (1) time.

p. Nudity or a state of nudity means the showing of the human male or female genitals, pubic area, anus, or buttocks with less than a fully opaque fabric covering, the showing of the female breast with less than a fully opaque fabric covering of any part of the areola, or the showing of completely or opaquely covered male genitals in a discernibly turgid state.

q. Person means an individual, proprietorship, partnership, corporation, association, or other legal entity.

r. Police Chief or Chief of Police means the Chief of Police of Town of Windsor or the authorized representatives thereof.

s. Semi-nude or in a semi-nude condition means a state of dress in which clothing covers no more than the genitals, pubic region, and areola of the female breast. 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.

t. Sexual encounter center means a business or commercial enterprise that, as one of its principal purposes, offers for any form of consideration physical contact in the form of wrestling or tumbling between persons of the opposite sex, when one (1) or more of the persons is in a state of nudity or semi-nude condition.

u. Specified anatomical areas means and includes the following:

1. Less than completely and opaquely covered by fabric: (a) human genitals or pubic region; (b) human buttocks; (c) human anus; or (d) the female breast below a point immediately above the top of the areola;

2. Human male genitals in a discernibly turgid state, even if completely or opaquely covered by fabric; and

3. Any device, costume, or covering that simulates any of the body parts included in subdivision 1 or 2 above.

v. Specified criminal activity means:

1. Any of the following offenses: (a) prostitution or promotion or pimping of prostitution; (b) dissemination of obscenity; (c) sale, distribution or display of harmful material to a minor; sexual performance involving a child; (d) possession or distribution of child pornography; (e) public lewdness; (f) indecent exposure; (g) indecency with a child; (h) engaging in organized criminal activity; (i) sexual assault; (j) molestation of a child; (k) gambling; (l) distribution of a controlled substance; or (m) any similar offenses to those described above under the criminal or penal code of other states or counties;

2. For which:

(a) Less than two (2) years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is for a misdemeanor offense;

(b) Less than five (5) years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or,

(c) Less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two (2) or more misdemeanor offenses or combination of misdemeanor offenses occurring within any twenty-four (24) month period.

3. The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.

w. Specified sexual activities means and includes any of the following, whether performed directly or indirectly through clothing, fabric, or other covering:

1. The fondling or other erotic touching of human genitals, pubic area, buttocks, anus, or female breast;

2. Sex acts, actual or simulated, including but not limited to, masturbation, intercourse, oral copulation, sodomy, or bestiality;

3. Masturbation, actual or simulated;

4. Excretory functions as part of or in connection with any of the other activities described in subdivisions 1 through 3 above.

x. Transfer of ownership or control of adult-oriented business means and includes any of the following:

1. The sale, lease, or sublease of the adult-oriented business;

2. The transfer of securities which constitute a controlling interest in the adult-oriented business, whether by sale, exchange, or similar means; or

3. The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the adult-oriented business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.

(Ord. No. 2007-220 § 4 (part))