§ 19-376. Definitions.

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

Adult business means any business:

(1)

That has a substantial or significant purpose the sale or rental of merchandise that is intended for use in connection with specified sexual activities, or that emphasizes matters depicting, describing or relating to specified sexual activities or specified anatomical areas; or

(2)

That has as one of its regular and substantial business purposes:

a.

The providing of entertainment where the emphasis is on performances, live or otherwise, that depict, portray, exhibit or display specified anatomical areas or specified sexual activities; or

b.

The providing of services that are intended to provide sexual arousal or excitement or that allow observation of specified sexual activities or specified anatomical areas ancillary to other pursuits, or allow participation in specified sexual activities ancillary to other pursuits.

The term "adult business" also includes, but is not limited to, any and all of the following specific adult businesses: adult bookstore, adult video store or adult retail establishment; adult motion picture theater; adult live entertainment business; adult modeling studio; adult motel; bathhouse; body painting studio; massage establishment or massage parlor. The term "adult business" does not include, and this article shall not apply to, a theater, concert hall, art center, museum, or similar establishment which is primarily devoted to the arts or theatrical performances and in which any of the circumstances covered by the definition of "adult business" were permitted or allowed as part of such art exhibits or performances.

Adult bookstore, adult video store, or adult news rack.

(1)

The term "adult bookstore," "adult video store" or "adult newsrack" means any establishment that devotes a substantial portion of their business to the display, barter, rental, or sale of the following:

a.

Books, magazines, periodicals, pictures, photographs, motion pictures, films, records, audiotapes, videotapes, slides, or other forms of visual or audio representations or other printed matter, if such establishment is not open to the public generally but only to one or more classes of the public, excluding any minor by reason of age, or if a substantial or significant portion of such items are distinguished or characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas.

b.

Sexually oriented toys or novelties.

(2)

For purposes of this definition, it shall be presumed that a substantial or significant portion of a business is devoted to the display, barter, rental or sale of such items if:

a.

Twenty-five percent or more of the exchanges, rentals or sales, measured in dollars over any consecutive 90-day period, is derived from such items;

b.

Twenty-five percent or more of the number of transactions, measured over any consecutive 90-day period, relate to such items;

c.

Twenty-five percent or more of the dollar value of all merchandise displayed at any time is attributable to such items;

d.

Twenty-five percent or more of all inventory consists of such items at any time;

e.

Twenty-five percent or more of the merchandise displayed for sale consists of such items at any time;

f.

Twenty-five percent or more of the floor area of the business (not including storerooms, stock areas, restrooms, basements or any portion of the business not open to the public) is devoted to such items at any time.

This presumption shall be rebuttable.

Adult live entertainment business means:

(1)

An establishment where a regular and substantial portion of its business is providing live adult entertainment that:

a.

Is intended to provide sexual stimulation or sexual gratification to the entertainer, an employee or any patrons of the business; or

b.

Is distinguished by or characterized by an emphasis on matter simulating, describing or relating to specified anatomical areas or the simulation of specified sexual activities; or

(2)

An establishment which regularly features entertainment of an erotic nature including exotic dancers, strippers, or similar entertainers appearing semi-nude.

Adult model studio or modeling studio means any establishment open to the public which for any form of consideration or gratuity paid to or received by either the proprietor or model features, provides, or permits models who appear nude or partially nude or who display specified anatomical areas to be observed, sketched, drawn, painted, sculptured, or photographed. This definition shall not apply to any school of arts which is operated by an individual, firm, association, partnership, corporation, or institution and which is licensed by the state and complies with all regulations and laws of the state for such schools and is authorized thereunder to issue and confer a diploma.

Adult motel means any motel or similar establishment offering public accommodations for any form of consideration which provides patrons with closed circuit television transmissions, films, motion pictures, videocassettes, slides, or other photographic reproductions which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas or a motel permitting room rentals for less than ten hours.

Adult motion picture theater means an enclosed building with a screen or projection areas, where a regular and substantial portion of its business is the exhibition to patrons of motion picture films, videocassettes, DVDs, cable television, or any other such visual media, which is distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

Bathhouse means a facility which maintains and operates for compensation any services of baths of all kinds, including all forms and methods of hydrotherapy except such establishments which operate by or under the supervision of a medical practitioner licensed by the state, a hospital, clinic, nursing home, or in connection with a physical therapist licensed by the state.

Body painting studios means a facility maintaining, operating, and offering any services for compensation of applying paint or other substance, whether transparent or nontransparent, to or on the human body by any means of application, technique, or process when such body is wholly or partially nude or displays specified anatomical areas.

Contagious and communicable diseases means any disease which is set out in state department of health and environment regulations, K.A.R. 28-1-6 and amendments thereto, and acquired immune deficiency syndrome.

Crime against public morals or offense of moral turpitude means any charges involving prostitution, pimping, lewd and lascivious behavior, gambling, possession or sale of narcotics, marijuana, or any controlled substances as that term is defined in K.S.A. 65-4101 et seq., indecent exposure, incest, and sex or moral crime involving, against, or with minors.

Distances means specified herein shall be measured in a straight line from the nearest point on the building or structure housing the adult business to the nearest point on any property of any business, activity, or zoning district identified herein.

Employee means any and all persons, including caterers, guards, doormen, waiters, waitresses, dancers, managers, assistant managers, operators, independent contractors and licensees, who work in or at or render any services directly related to the operation of an adult business.

Entertainer means any person who provides entertainment within an adult entertainment business as defined in this article whether or not a fee is charged or accepted for entertainment and whether or not entertainment is provided as an employee or an independent contractor.

Entertainment means any exhibition, performance, display, or dance of any type, removal of articles of clothing, pantomime, modeling, or any other personal service offered for amusement.

Establishing an adult business includes any of the following:

(1)

The opening or commencement of any such business as a new business;

(2)

The conversion of an existing business, whether or not an adult business, to any of the adult entertainment businesses as defined in this article;

(3)

The addition of any of the adult businesses defined herein to any other existing adult business; or

(4)

The relocation of any such business.

Governing body means the unified government board of commissioners.

Massage means any method of pressure on or friction against, stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external soft part of the body with the hands or with the aid of any mechanical or electrical apparatus or appliance with or without such supplementary aids as rubbing alcohol, liniments, antiseptics, oils, powder, creams, lotions, ointments, or other similar preparations commonly used in this practice.

Massage establishment or massage parlor means any establishment having a place of business where any person, firm, partnership, association, or corporation engages in or carries on or permits to be engaged in or carried on any of the activities mentioned in the definition of "massage" for compensation. This shall not include an establishment operated and supervised by a medical practitioner, physical therapist, hospital, or clinic licensed by the state.

Masseur or masseuse means any person who engages in the practice of massage in a massage establishment or any services of baths of any kind including all forms and methods of hydrotherapy in a bathhouse, whether or not a fee is charged or accepted.

Offense of moral turpitude. See Crime against public morals.

Operator means any person, partnership, or corporation operating, conducting, maintaining, or in charge of operating an adult business.

Patron means any person who utilizes or receives the services of any adult business subject to the provision of this article and under such circumstances that it is reasonably expected that he will pay money or give any other consideration therefor.

Premises means the premises of such licensed establishment and such other areas under the control of the licensee that are in such close proximity to the licensed premises that activities and conduct of employees, entertainers, masseurs, or masseuses within such other areas may be viewed by persons on or within the licensed premises.

Public morals. See Crime against public morals.

Recognized school means any school or institution of learning which has for its purpose the teaching of theory, method, profession, or work of massage, which school requires a resident course of study not less than 70 hours to be given in not more than three calendar months before the student shall be furnished with a diploma or certificate of graduation from such school or institution of learning following the successful completion of such course of study or learning.

Semi-nude means a state of dress in which clothing or other material completely or opaquely covers no more than any human genitals, pubic region, any buttock, or any portion of the areola of the female breast.

Specified anatomical areas means any one of the following: less than completely and opaquely covered human genitals, pubic region, pubic hair, buttocks, anus, any portion of the areola of the female breast, or human male genitals in a discernibly turgid state even if completely or opaquely covered.

Specified sexual activities means any one of the following:

(1)

Human genitals in a state of sexual stimulation or arousal;

(2)

Acts or representations of acts of human masturbation, sexual intercourse, sodomy, bestiality, oral copulation, or flagellation;

(3)

Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast; or

(4)

Excretory functions as a part of or in connection with any activities set forth in subsections (1) through (3) of this definition.

Specified criminal act means entrance into a diversion program or a conviction, plea of nolo contendere or no contest to:

(1)

A criminal violation of this article;

(2)

Any of the offenses defined in K.S.A. ch. 21, art. 35;

(3)

Incest as defined in K.S.A. ch. 21, art. 36;

(4)

Aggravated incest as defined in K.S.A. ch. 21, art. 36;

(5)

Promoting obscenity as defined in K.S.A. ch. 21, art. 43;

(6)

Promoting obscenity to minors as defined in K.S.A. ch. 21, art. 43;

(7)

Promotion to minors of obscenity harmful to minors as defined in K.S.A. ch. 21, art. 43;

(8)

Criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses; or

(9)

Any of the foregoing offenses under an analogous regulation or statute of the United States Code Annotated or of a state other than Kansas or under an analogous ordinance of another county, city, or similar jurisdiction other than the city or the county.

If necessary, the chief counsel shall issue an interpretive ruling determining whether a crime from another state or jurisdiction is analogous to a crime under state law or ordinances of the city or the county.

Sexually oriented toys or novelties means instruments, devices or paraphernalia which either depict representations of specified anatomical areas or are designed or marketed for use in connection with specified sexual activities. In determining whether an item is designed or marketed for use in connection with specified sexual activities, the following guidelines may be considered:

(1)

Expert testimony as to the principle use of the item;

(2)

Evidence concerning the total business of a person or business establishment and the type of merchandise involved in the business;

(3)

National and local advertising concerning the use of the item;

(4)

Evidence of advertising concerning the nature of the business establishment;

(5)

Instructions, graphics or other material contained on the item itself or on the packaging materials for the item;

(6)

The physical or structural characteristics of the item;

(7)

The manner in which the item is displayed, including its proximity to other regulated merchandise or signage relating to items in a display area.

Any person may request an interpretive ruling from the chief of police, in the case of a business to be located within the city, or the county sheriff, in the case of a business to be located outside the city limits, as to whether a particular item is considered by the city to be designed or marketed for use in connection with specified sexual activities. An application for an interpretive ruling shall be made in writing on a form provided by the chief of police or the sheriff, and shall be accompanied by such other information as may reasonably be requested under the circumstances pertaining to the specific item about which a ruling is requested. The chief of police or the sheriff shall issue a written interpretive ruling within ten business days following submission of a completed application. Any person aggrieved by the interpretive ruling of the chief of police or the sheriff may seek judicial review of the interpretive ruling pursuant to K.S.A. 60-2101(d), or amendments thereto.

Transfer of ownership or control means any of the following:

(1)

The sale, lease, or sublease of an adult business;

(2)

The transfer of securities which constitute a controlling interest in such 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 such business, except for transfer by bequest or other operation of law upon the death of the person possessing such ownership or control.

(Ord. No. O-01-07(Res. No. R-01-07), § 1(2.5-2), 1-4-2007)