Chapter 0227 - 472R - S Ver of HB2490

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 13-1422, Arizona Revised Statutes, is amended to read:

START_STATUTE13-1422. Adult oriented businesses; location; hours of operation; injunction; classification; definitions

A. An adult oriented business shall not be located within one-fourth mile of a child care facility, a private, public or charter school, a public playground, a public recreational facility, a residence or a place of worship. For the purposes of this subsection, measurements shall be made in a straight line in all directions, without regard to intervening structures or objects, from the nearest point on the property line of a parcel containing an adult oriented business to the nearest point on the property line of a parcel containing a child care facility, a private, public or charter school, a public playground, a public recreational facility, a residence or a place of worship. An adult oriented business lawfully operating in conformity with this section does not violate this section if a child care facility, a private, public or charter school, a public playground, a public recreational facility, a residence or a place of worship subsequently locates within one-fourth mile of the adult oriented business.

A. B. An adult arcade, adult bookstore or video store, adult cabaret, adult motion picture theater, adult theater, escort agency or nude model studio shall not remain open at any time between the hours of 1:00 a.m. and 8:00 a.m. on Monday through Saturday and between the hours of 1:00 a.m. and 12:00 noon on Sunday.

B. A violation of this section is a class 1 misdemeanor.

C. Subsection A of this section does not prohibit counties or municipalities from enacting and enforcing ordinances that regulate the location of adult oriented businesses.

D. Subsection B of this section does not prohibit counties or municipalities from enacting and enforcing ordinances that regulate sexually oriented businesses an adult arcade, adult bookstore or video store, adult cabaret, adult motion picture theater, adult theater, escort agency or nude model studio in a manner that is at least as restrictive as subsection A B of this section.

E. If there is reason to believe that a violation of subsection A of this section is being committed in any county or city, the county attorney of the county shall, or a citizen of this state who resides in the county or city in the citizen's own name may, maintain an action to abate and prevent the violation and to enjoin perpetually any person who is committing the violation and the owner, lessee or agent of the building or place in or on which the violation is occurring from directly or indirectly committing or permitting the violation.

F. A violation of subsection A or B of this section is a class 1 misdemeanor. Each day of violation constitutes a separate offense.

D. G. For the purposes of this section:

1. "Adult arcade" has the same meaning prescribed in section 11‑821.

2. "Adult bookstore or video store" has the same meaning prescribed in section 11‑821.

3. "Adult cabaret" excludes any establishment licensed under title 4 and includes any nightclub, bar, restaurant or other similar commercial establishment that regularly features:

(a) Persons who appear in a state of nudity or who are seminude.

(b) Live performances that are characterized by the exposure of specific anatomical areas or specific sexual activities.

(c) Films, motion pictures, videocassettes, slides or other photographic reproductions that are characterized by the depiction or description of specific sexual activities or specific anatomical areas.

4. "Adult motion picture theater" has the same meaning prescribed in section 11‑821.

5. "Adult oriented business" has the same meaning prescribed in section 11-821.

5. 6. "Adult theater" has the same meaning prescribed in section 11‑821.

6. 7. "Escort" means 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.

7. 8. "Escort agency" means a person or business association that furnishes, offers to furnish or advertises the furnishing of escorts as one of its primary business purposes for any fee, tip or other consideration.

8. 9. "Nude model studio" has the same meaning prescribed in section 11‑821.

9. 10. "Nude", "nudity" or "state of nudity" has the same meaning prescribed in section 11‑821.

11. "Place of worship" means a structure where persons regularly assemble for worship, ceremonies, rituals and education relating to a particular form of religious belief and which a reasonable person would conclude is a place of worship by reason of design, signs or architectural or other features.

12. "Residence" means a permanent dwelling place.

10. 13. "Seminude" has the same meaning prescribed in section 11‑821.

11. 14. "Specific anatomical areas" has the same meaning prescribed in section 11‑821.

12. 15. "Specific sexual activities" has the same meaning prescribed in section 11‑821. END_STATUTE

Sec. 2. Legislative findings

Based on evidence of the adverse secondary effects of adult oriented businesses presented in hearings and in reports made available to the legislature and on findings discussed in cases, including City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), PAP's A.M. v. City of Erie, 529 U.S. 277 (2002), City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), California v. Larue, 409 U.S. 109 (1972), Gammoh v. City of La Habra, 395 F. 3d 1114 (9^th cir. 2005), World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9^th cir. 2004), Center For Fair Public Policy v. Maricopa County, 336 F. 3d 1153 (9^th cir. 2003), the legislature finds that:

1. Adult oriented businesses, as a category of commercial land uses, are associated with a wide variety of adverse secondary effects, including negative impacts on surrounding properties, personal and property crimes, illicit drug use and trafficking, lewdness, prostitution, potential spread of disease and sexual assault.

2. Adult oriented businesses should be separated from the sensitive land uses that are identified in section 13-1422, subsection A, Arizona Revised Statutes, as amended by this act, to minimize the impact of their secondary effects on these uses.

3. There is a substantial government interest in preventing each of the forgoing negative secondary effects. This substantial government interest exists independent of any comparative analysis between adult oriented businesses and nonadult oriented businesses.

Sec. 3. Applicability

Section 13-1422, subsection A, Arizona Revised Statutes, as amended by this act, does not apply to preexisting adult oriented businesses that are established and operating in compliance with all state laws and local ordinances relating to the location of adult oriented businesses on the effective date of this act.

Sec. 4. Severability

If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of the act are severable.

Sec. 5. Emergency

This act is an emergency measure that is necessary to preserve the public peace, health or safety and is operative immediately as provided by law.