68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 3139

                         House Bill 3323

Sponsored by Representative WYLIE; Representatives CARTER,
  FEDERICI, MILNE, SNODGRASS


                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Allows city or county to adopt zoning ordinance regulating
sexually oriented business. Establishes procedures for
conditional use permit.
  Takes effect on effective date of House Joint Resolution 63
(1995).

                        A BILL FOR AN ACT
Relating to zoning; and prescribing an effective date.
  Whereas the preservation of the quality of life for Oregon's
citizens in all cities and counties of the state is a desirable
and necessary goal; and
  Whereas research conducted by cities in other states indicates
that sexually oriented businesses create secondary effects within
communities that are capable of eroding the quality of life; and
  Whereas these secondary effects have been specifically
identified, studied and documented; and
  Whereas the documented secondary effects of sexually oriented
businesses include increases in the occurrences of sex crimes,
increases in the frequency of other crimes and general decreases
in the real estate market value of surrounding property; and
  Whereas it is desirable and necessary to preserve the quality
of life through attempts to prevent crime, maintain property
values and protect commercial businesses; and
  Whereas it is possible to minimize the secondary effects of
sexually oriented businesses by imposing reasonable time, place
and manner restrictions upon the location and operation of those
businesses; and
  Whereas it is the intent of this legislation to impose such
reasonable time, place and manner restrictions upon sexually
oriented businesses to protect the quality of life in Oregon's
communities; and
  Whereas it is not the intent of this legislation to interfere
with the First Amendment rights of the owners of sexually
oriented businesses or the public in general; now, therefore,
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Section 2 of this Act is added to and made a
part of ORS chapter 227. + }
  SECTION 2.  { + (1) A city may adopt a zoning ordinance that
regulates the location of a sexually oriented business within
that city.
  (2) Any ordinance adopted by a city to regulate the location of
a sexually oriented business shall prohibit the location of a
sexually oriented business within 1,000 feet of another such
business, a school or an area that is zoned primarily for
residential uses.
  (3) The governing body of a city that adopts a zoning ordinance
regulating the location of a sexually oriented business shall, in
addition to other remedies available at law, institute injunction
or other appropriate proceedings to prevent, temporarily or
permanently enjoin or remove the unlawful location, construction,
maintenance, repair or alteration of such a business.
  (4) When a governing body of a city adopts a zoning ordinance
regulating the location of a sexually oriented business, the
1,000-foot distance shall be measured in a straight line, without
regard to intervening structures or objects, from the nearest
portion of the building or structure used as a part of the
premises where a sexually oriented business is conducted, to the
nearest property line of the premises of another sexually
oriented business, a school or to the nearest boundary of an area
that is zoned primarily for residential uses.
  (5)(a) When a governing body of a city adopts an ordinance
regulating the location of a sexually oriented business and the
configuration of the community is such that the 1,000-foot
distance requirement described in subsection (2) of this section
removes all siting possibilities, the local governing body shall
allow an opportunity to apply for a conditional use permit as
described in this subsection for the operation of the business.
Subject to notice, opportunity for hearing and the approval of
the governing body or designee, and upon a finding that the use
will not force a significant change in accepted commercial
business practices on surrounding land and will not significantly
increase the cost of accepted commercial business practices on
surrounding land devoted to commercial business use, a local
governing body shall establish in any area zoned for commercial
use a conditional use for a sexually oriented business, including
an adult arcade, adult bookstore or adult video store, adult
cabaret, adult motel, adult motion picture theater or adult
theater, as those terms are defined in subsection (6) of this
section.
  (b) In addition to other requirements of law, the governing
body may require that an applicant seeking a conditional use
permit for a sexually oriented business do all of the following:
  (A) Complete and submit an application form provided by the
local government.
  (B) Include a diagram or plan showing the configuration of the
premises. The diagram or plan need not be professionally
prepared. However, the diagram or plan must be drawn to scale and
depict all structures, the interior floor plan and the property
boundaries. The diagram or plan shall provide sufficient detail
to allow decision makers to assess compliance with the local
government regulations.
  (C) Consent to an initial inspection by local building, fire
and health officials to determine compliance with state and local
building, fire and health regulations. If a local governing body
requires such an inspection, the building, fire or health
official shall certify to the local governing body, within 45
days of the date that the application was initially submitted to
the local governing body, that the applicant does or does not
comply with applicable state and local regulations. A governing
body may charge the applicant an inspection fee and the amount of
any fee charged shall not exceed the actual and necessary costs
incurred in carrying out the inspection.
  (D) Agree to comply with standards prescribed by the governing
body relative to hours of business operation, structure design,
landscaping, parking configuration, type of lighting and sign
placement.
  (E) Agree to minimize the impact of motor vehicle traffic flow
as a result of the business, to the extent permissible by law.
  (F) Sign the application as follows:
  (i) When an applicant for a permit is an individual, the
applicant must sign the permit application as applicant. In
addition, an individual who exercises control over the sexually
oriented business shall sign as applicant.
  (ii) When an applicant is a person listed in ORS 174.100 (4)
other than an individual, each person having an ownership
interest in the sexually oriented business must sign the permit
application as an applicant.
  (c) Subject to notice and the opportunity for a hearing, the
local governing body may suspend a conditional use permit for a
sexually oriented business for a period of time not to exceed 30
days if the local governing body determines that a permittee or
an employee of a permittee has refused to allow a periodic
building, health or fire prevention inspection required by state
or local law.
  (d) The local governing body may suspend or revoke a
conditional use permit for a sexually oriented business, or take
other action allowed by law, subject to notice and the
opportunity for a hearing if a permittee violates any provision
of this 1995 Act. A revocation shall be for one year after the
effective date of the revocation. However, the governing body may
reinstate the permit after 90 days have elapsed following the
revocation date, if the permittee demonstrates to the governing
body's satisfaction that the situation that was the basis for the
revocation has been remedied. In addition, the governing body may
suspend or revoke a permit, subject to notice and the opportunity
for a hearing, if the governing body determines that:
  (A) A permittee gave false information in the permit
application or in any materials required to be submitted with the
application;
  (B) A permittee or an employee of a permittee has knowingly
allowed a minor on the premises;
  (C) A permittee or an employee of a permittee has knowingly
allowed the unlawful possession, use, sale, delivery or
manufacture of drugs or controlled substances on the premises;
  (D) A permittee or an employee of a permittee has knowingly
allowed prostitution on the premises;
  (E) A permittee or an employee of a permittee has knowingly
operated the sexually oriented business during a period of time
when the permittee's permit was suspended; or
  (F) A permittee or an employee of a permittee knowingly allowed
any illegal act to occur in or on the premises.
  (e) A governing body may require that a conditional use permit
issued for the operation of a sexually oriented business be
nontransferable.
  (f) Any sexually oriented business lawfully operating on the
effective date of this 1995 Act, but not in compliance with the
distance or conditional use permit requirements of subsections
(2) and (5) of this section, shall be deemed a nonconforming use
and shall be permitted to otherwise lawfully operate for a period
not exceeding two years from the effective date of this 1995 Act.
A use that is nonconforming on the effective date of this 1995
Act shall not be increased, enlarged, extended or altered.
However, a nonconforming use may be transformed into a conforming
use.
  (g) If two or more sexually oriented businesses are within
1,000 feet of each other, but both are otherwise in a permissible
location and lawfully operating on the effective date of this
1995 Act, the sexually oriented business which was first
established and continuously operating at a particular location
shall be the conforming use and the last-in-time established
business shall be nonconforming.

  (h) A sexually oriented business lawfully operating as a
conforming use is not rendered a nonconforming use when,
subsequent to a grant of a new conditional use permit or renewal
of an existing permit, another sexually oriented business, a
school or a use zoned primarily as residential moves to a site
that is within 1,000 feet of the sexually oriented business.
However, a conforming use is rendered nonconforming when a
conditional use permit of a sexually oriented business has either
expired or been revoked and another sexually oriented business, a
school or use zoned primarily as residential moves to a site that
is within 1,000 feet of the sexually oriented business.
  (i) Any approval standards, special conditions and procedures
for approval adopted by a local governing body shall be clear and
objective and shall be consistent with the Oregon Constitution
and the requirements of this 1995 Act.
  (6) As used in this section:
  (a) 'Adult arcade' means any place to which the public is
permitted or invited where coin-operated or slug-operated 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.
  (b) 'Adult bookstore' or 'adult video store' means a commercial
business where a substantial or significant portion of the
stock-in-trade of the business is devoted to sexual materials,
and the business offers for sale or rental for any form of
consideration, the following:
  (A) Books, magazines, periodicals or other printed matter or
photographs, films, motion pictures, videocassettes or video
reproductions, slides or other visual representations that depict
or describe specified sexual activities or specified anatomical
areas; or
  (B) Instruments, devices or paraphernalia that are designed for
use in connection with specified sexual activities. A commercial
establishment may have other business purposes that do not
involve the offering for sale or rental of material depicting or
describing specified sexual activities or specified anatomical
areas and still be categorized as an adult bookstore or adult
video store. Such other business purposes will not serve to
exempt such commercial establishment from being categorized as an
adult bookstore or adult video store if a substantial or
significant portion of the stock-in-trade of the business is
devoted to sexual materials and the business offers for sale or
rental for consideration the materials described in this
paragraph.
  (c) 'Adult cabaret' means a nightclub, bar, restaurant or
similar commercial establishment that regularly features:
  (A) Persons who appear in a state of nudity;
  (B) Live performances that are characterized by the exposure of
specified anatomical areas or by specified sexual activities; or
  (C) Films, motion pictures, videocassettes, slides or other
photographic reproductions that are characterized by the
depiction or description of specified sexual activities or
specified anatomical areas.
  (d) 'Adult motel' means a hotel, motel or similar commercial
establishment that:
  (A) 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 that are characterized by the
depicting or describing of specified sexual activities or
specified anatomical areas and has a sign visible from the public
right of way that advertises the availability of the type of
photographic reproductions described in this subparagraph;
  (B) Offers a sleeping room for rent for a period of time that
is less than 10 hours; or
  (C) Allows a tenant or occupant of a sleeping room to rent the
room to another person for a period of time that is less than 10
hours.
  (e) 'Adult motion picture theater' means a commercial
establishment where, for any form of consideration, films, motion
pictures, videocassettes, slides or similar photographic
reproductions are regularly shown that are characterized by the
depicting or describing of specified sexual activities or
specified anatomical areas.
  (f) 'Adult theater' means a theater, concert hall, auditorium
or similar commercial establishment that regularly features
persons who appear in a state of nudity or live performances that
are characterized by the exposure of specified anatomical areas
or by specified sexual activities.
  (g) 'Day care facility' means any facility described in ORS
657A.250 (5) that is not operated out of a residence.
  (h) 'Nudity' or 'state of nudity' means the appearance of a
human bare buttock, anus, male genitals, female genitals or
female breast.
  (i) 'School' means a public, private or parochial school that
is also either:
  (A) An elementary or secondary school; or
  (B) A children's day care facility.
  (j) 'Sexually oriented business' means an adult arcade, adult
bookstore or adult video store, adult cabaret, adult motel, adult
motion picture theater or adult theater.
  (k) 'Specified anatomical areas' means the male genitals in a
state of sexual arousal or the vulva or more intimate parts of
the female genitals, or both.
  (L) 'Specified sexual activities' means any of the following:
  (A) The fondling or other erotic touching of human genitals,
pubic region, buttocks, anus or female breasts;
  (B) Sex acts, actual or simulated, including sexual intercourse
or sodomy;
  (C) Masturbation, actual or simulated; or
  (D) Excretory functions as part of or in connection with any of
the activities set forth in subparagraphs (A) to (C) of this
paragraph. + }
  SECTION 3.  { + Section 4 of this Act is added to and made a
 + }  { +  part of ORS chapter 215. + }
  SECTION 4.  { + (1) A county may adopt a zoning ordinance that
regulates the location of a sexually oriented business within
that county.
  (2) Any ordinance adopted by a county to regulate the location
of a sexually oriented business shall prohibit the location of a
sexually oriented business within 1,000 feet of another such
business, a school or an area that is zoned primarily for
residential uses.
  (3) The governing body of a county that adopts a zoning
ordinance regulating the location of a sexually oriented business
shall, in addition to other remedies available at law, institute
injunction or other appropriate proceedings to prevent,
temporarily or permanently enjoin or remove the unlawful
location, construction, maintenance, repair or alteration of such
a business.
  (4) When a governing body of a county adopts a zoning ordinance
regulating the location of a sexually oriented business, the
1,000-foot distance shall be measured in a straight line, without
regard to intervening structures or objects, from the nearest
portion of the building or structure used as a part of the
premises where a sexually oriented business is conducted, to the
nearest property line of the premises of another sexually
oriented business, a school or to the nearest boundary of an area
that is zoned primarily for residential uses.
  (5)(a) When a governing body of a county adopts an ordinance
regulating the location of a sexually oriented business and the
configuration of the community is such that the 1,000-foot
distance requirement described in subsection (2) of this section
removes all siting possibilities, the local governing body shall
allow an opportunity to apply for a conditional use permit as
described in this subsection for the operation of the business.
Subject to notice, opportunity for hearing and the approval of
the governing body or designee, and upon a finding that the use
will not force a significant change in accepted commercial
business practices on surrounding land and will not significantly
increase the cost of accepted commercial business practices on
surrounding land devoted to commercial business use, a local
governing body shall establish in any area zoned for commercial
use, a conditional use for a sexually oriented business,
including an adult arcade, adult bookstore or adult video store,
adult cabaret, adult motel, adult motion picture theater or adult
theater, as those terms are defined in subsection (6) of this
section.
  (b) In addition to other requirements of law, the governing
body may require that an applicant seeking a conditional use
permit for a sexually oriented business do all of the following:
  (A) Complete and submit an application form provided by the
local government.
  (B) Include a diagram or plan showing the configuration of the
premises. The diagram or plan need not be professionally
prepared. However, the diagram or plan must be drawn to scale and
depict all structures, the interior floor plan and the property
boundaries. The diagram or plan shall provide sufficient detail
to allow decision makers to assess compliance with the local
government regulations.
  (C) Consent to an initial inspection by local building, fire
and health officials to determine compliance with state and local
building, fire and health regulations. If a local governing body
requires such an inspection, the building, fire or health
official shall certify to the local governing body, within 45
days of the date that the application was initially submitted to
the local governing body, that the applicant does or does not
comply with applicable state and local regulations. A governing
body may charge the applicant an inspection fee and the amount of
any fee charged shall not exceed the actual and necessary costs
incurred in carrying out the inspection.
  (D) Agree to comply with standards prescribed by the governing
body relative to hours of business operation, structure design,
landscaping, parking configuration, type of lighting and sign
placement.
  (E) Agree to minimize the impact of motor vehicle traffic flow
as a result of the business, to the extent permissible by law.
  (F) Sign the application as follows:
  (i) When an applicant for a permit is an individual, the
applicant must sign the permit application as applicant. In
addition, an individual who exercises control over the sexually
oriented business shall sign as applicant.
  (ii) When an applicant is a person listed in ORS 174.100 (4)
other than an individual, each person having an ownership
interest in the sexually oriented business must sign the permit
application as an applicant.
  (c) Subject to notice and the opportunity for a hearing, the
local governing body may suspend a conditional use permit for a
sexually oriented business for a period of time not to exceed 30
days if the local governing body determines that a permittee or
an employee of a permittee has refused to allow a periodic
building, health or fire prevention inspection required by state
or local law.
  (d) The local governing body may suspend or revoke a
conditional use permit for a sexually oriented business, or take
other action allowed by law, subject to notice and the
opportunity for a hearing if a permittee violates any provision
of this 1995 Act. A revocation shall be for one year after the
effective date of the revocation. However, the governing body may
reinstate the permit after 90 days has elapsed following the
revocation date, if the permittee demonstrates to the governing
body's satisfaction that the situation that was the basis for the
revocation has been remedied. In addition, the governing body may
suspend or revoke a permit, subject to notice and the opportunity
for a hearing, if the governing body determines that:
  (A) A permittee gave false information in the permit
application or in any materials required to be submitted with the
application;
  (B) A permittee or an employee of a permittee has knowingly
allowed a minor on the premises;
  (C) A permittee or an employee of a permittee has knowingly
allowed the unlawful possession, use, sale, delivery or
manufacture of drugs or controlled substances on the premises;
  (D) A permittee or an employee of a permittee has knowingly
allowed prostitution on the premises;
  (E) A permittee or an employee of a permittee has knowingly
operated the sexually oriented business during a period of time
when the permittee's permit was suspended; or
  (F) A permittee or an employee of a permittee knowingly allowed
any illegal act to occur in or on the premises.
  (e) A governing body may require that a conditional use permit
issued for the operation of a sexually oriented business be
nontransferable.
  (f) Any sexually oriented business lawfully operating on the
effective date of this 1995 Act, but not in compliance with the
distance or conditional use permit requirements of subsections
(2) and (5) of this section, shall be deemed a nonconforming use
and shall be permitted to otherwise lawfully operate for a period
not exceeding two years from the effective date of this 1995 Act.
A use that is nonconforming on the effective date of this 1995
Act shall not be increased, enlarged, extended or altered.
However, a nonconforming use may be transformed into a conforming
use.
  (g) If two or more sexually oriented businesses are within
1,000 feet of each other, but both are otherwise in a permissible
location and lawfully operating on the effective date of this
1995 Act, the sexually oriented business which was first
established and continuously operating at a particular location
shall be the conforming use and the last-in-time established
business shall be nonconforming.
  (h) A sexually oriented business lawfully operating as a
conforming use is not rendered a nonconforming use when,
subsequent to a grant of a new conditional use permit or renewal
of an existing permit, another sexually oriented business, a
school or a use zoned primarily as residential moves to a site
that is within 1,000 feet of the sexually oriented business.
However, a conforming use is rendered nonconforming when a
conditional use permit of a sexually oriented business has either
expired or been revoked and another sexually oriented business, a
school or use zoned primarily as residential moves to a site that
is within 1,000 feet of the sexually oriented business.
  (i) Any approval standards, special conditions and procedures
for approval adopted by a local governing body shall be clear and
objective and shall be consistent with the Oregon Constitution
and the requirements of this 1995 Act.
  (6) As used in this section:
  (a) 'Adult arcade' means any place to which the public is
permitted or invited where coin-operated or slug-operated 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.
  (b) 'Adult bookstore' or 'adult video store' means a commercial
business where a substantial or significant portion of the
stock-in-trade of the business is devoted to sexual materials,
and the business offers for sale or rental for any form of
consideration, the following:
  (A) Books, magazines, periodicals or other printed matter or
photographs, films, motion pictures, videocassettes or video
reproductions, slides or other visual representations that depict
or describe specified sexual activities or specified anatomical
areas; and
  (B) Instruments, devices or paraphernalia that are designed for
use in connection with specified sexual activities. A commercial
establishment may have other business purposes that do not
involve the offering for sale or rental of material depicting or
describing specified sexual activities or specified anatomical
areas and still be categorized as an adult bookstore or adult
video store. Such other business purposes will not serve to
exempt such commercial establishment from being categorized as an
adult bookstore or adult video store if a substantial or
significant portion of the stock-in-trade of the business is
devoted to sexual materials and the business offers for sale or
rental for consideration the materials described in this
paragraph.
  (c) 'Adult cabaret' means a nightclub, bar, restaurant or
similar commercial establishment that regularly features:
  (A) Persons who appear in a state of nudity;
  (B) Live performances that are characterized by the exposure of
specified anatomical areas or by specified sexual activities; or
  (C) Films, motion pictures, videocassettes, slides or other
photographic reproductions that are characterized by the
depiction or description of specified sexual activities or
specified anatomical areas.
  (d) 'Adult motel' means a hotel, motel or similar commercial
establishment that:
  (A) 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 that are characterized by the
depicting or describing of specified sexual activities or
specified anatomical areas and has a sign visible from the public
right of way that advertises the availability of the type of
photographic reproductions described in this subparagraph;
  (B) Offers a sleeping room for rent for a period of time that
is less than 10 hours; or
  (C) Allows a tenant or occupant of a sleeping room to rent the
room to another person for a period of time that is less than 10
hours.
  (e) 'Adult motion picture theater' means a commercial
establishment where, for any form of consideration, films, motion
pictures, videocassettes, slides or similar photographic
reproductions are regularly shown that are characterized by the
depicting or describing of specified sexual activities or
specified anatomical areas.
  (f) 'Adult theater' means a theater, concert hall, auditorium
or similar commercial establishment that regularly features
persons who appear in a state of nudity or live performances that
are characterized by the exposure of specified anatomical areas
or by specified sexual activities.
  (g) 'Day care facility' means any facility described in ORS
657A.250 (5) that is not operated out of a residence.
  (h) 'Nudity' or 'state of nudity' means the appearance of a
human bare buttock, anus, male genitals, female genitals or
female breast.
  (i) 'School' means a public, private or parochial school that
is also either:
  (A) An elementary or secondary school; or
  (B) A children's day care facility.
  (j) 'Sexually oriented business' means an adult arcade, adult
bookstore or adult video store, adult cabaret, adult motel, adult
motion picture theater or adult theater.
  (k) 'Specified anatomical areas' means the male genitals in a
state of sexual arousal or the vulva or more intimate parts of
the female genitals, or both.
  (L) 'Specified sexual activities' means any of the following:
  (A) The fondling or other erotic touching of human genitals,
pubic region, buttocks, anus or female breasts;
  (B) Sex acts, actual or simulated, including sexual intercourse
or sodomy;
  (C) Masturbation, actual or simulated; or
  (D) Excretory functions as part of or in connection with any of
the activities set forth in subparagraphs (A) to (C) of this
paragraph. + }
  SECTION 5.  { + This Act does not become effective unless the
Oregon Constitution is amended by vote of the people at the
regular general election in 1996 so as to amend section 8,
Article I of the Oregon Constitution as proposed by House Joint
Resolution 63 (1995). If House Joint Resolution 63 (1995) is so
approved by vote of the people, this Act shall become effective
on the effective date of the joint resolution. + }
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