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RESOLUTION NO. 2007-62
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, DECLARING AS A PUBLIC RECORD THAT
CERTAIN DOCUMENT FILED WITH THE TOWN CLERK AND ENTITLED
THE "TOWN OF FOUNTAIN HILLS ADULT BUSINESS LICENSE
REGULATIONS," DATED OCTOBER 18, 2007.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION 1. That certain document entitled the "Town of Fountain Hills Adult Business
License Regulations," dated October 18, 2007, of which three copies each are on file in the
office of the Town Clerk and open for public inspection during normal business hours, is hereby
declared to be public record, and said copies are ordered to remain on file with the Town Clerk.
PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills,
Arizona, October 18, 2007.
FOR THE TOWN F FOUNTAIN HILLS: ATTESTED TO:
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W. J. Nich s, ayor Bevelyn J. Bende o Clerk
REVIEWED BY: APPROVED AS TO FORM:
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Timothy G. Pickering, Town Manager Andrew J. McGuire, Town Attorney
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ORDINANCE NO. 07-09
thiw AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, AMENDING THE TOWN OF FOUNTAIN
HILLS TOWN CODE, CHAPTER 8, BUSINESS REGULATIONS, BY
CREATING A NEW ARTICLE 8-5, ADULT BUSINESSES, RELATING TO
THE REGULATION OF ADULT OR SEXUALLY ORIENTED BUSINESSES.
WHEREAS, adult or sexually oriented business ("Adult Businesses") require special
supervision from the public safety agencies of the Town of Fountain Hills (the "Town") in order
to protect and preserve the health, safety, morals and welfare of the patrons of such businesses as
well as the citizens of the Town; and
WHEREAS, the Mayor and Council of the Town of Fountain Hills (the "Town
Council") finds that Adult Businesses are frequently used for unlawful sexual activities,
including prostitution and sexual liaisons of a casual nature; and
WHEREAS, the concern over sexually transmitted diseases is a legitimate health
concern of the Town which demands reasonable regulation of Adult Businesses in order to
protect the health and well-being of the citizens; and
WHEREAS, there is convincing documented evidence that Adult Businesses, because of
their very nature, have a deleterious effect on both the existing businesses around them and the
surrounding residential areas adjacent to them, causing increased crime and the downgrading of
property values; and
WHEREAS, it is recognized that Adult Businesses, due to their nature, have serious
objectionable operational characteristics, particularly when they are located in close proximity to
each other, thereby contributing to urban blight and downgrading the quality of life in the
adjacent area; and
WHEREAS, the Town Council desires to minimize and control these adverse effects and
thereby protect the health, safety, and welfare of the citizenry, to protect the citizens from
increased crime, to preserve the quality of life, to preserve the property values and character of
surrounding neighborhoods and to deter the spread of urban blight; and
WHEREAS, it is not the intent of this Ordinance to suppress any speech or expression
activities protected by the First Amendment, but to enact a content neutral ordinance which
addresses the negative secondary effects of Adult Businesses; and
WHEREAS, it is not the intent of the Town Council to condone or legitimize the
distribution of obscene material, and the Town Council recognizes that state and federal law
prohibits the distribution of obscene materials and expects and encourages state law enforcement
officials to enforce state obscenity statutes against any such illegal activities within the corporate
limits of the Town; and
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WHEREAS, the Town Council desires to amend the Town of Fountain Hills Town
Code, Chapter 8, Business Regulations, by adding a new Article 8-5, Adult Business, relating to
the regulation of adult or sexually oriented businesses.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF
THE TOWN OF FOUNTAIN HILLS as follows:
SECTION 1. It is the purpose of this Ordinance to regulate adult or sexually oriented
businesses in order to promote the health, safety, morals, and general welfare of the citizens of
the Town, and to establish reasonable and uniform regulations to prevent the deleterious location
and concentration of Adult Businesses within the Town. The provisions of this Ordinance have
neither the purpose nor effect of imposing a limitation or restriction on the content of any
communicative materials, including sexually oriented materials. Similarly, it is not the intent nor
effect of this Ordinance to restrict or deny access by adults to sexually oriented materials
protected by the First Amendment, or to deny access by the distributors and exhibitors of
sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this
Ordinance to condone or legitimize the distribution of obscene material.
SECTION 2. Based on evidence concerning the adverse secondary effects of adult uses
on the community presented in hearings and in reports made available to the Town Council, and
on findings incorporated in the cases of City of Renton v. Playtime Theatres, Inc., 475 U.S.
41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991), City of Erie v. Pap's A.M., TDA "Kandyland", 529 U.S. 277 (2000), City
of Los Angeles v. Alameda Books, Inc., 121 S. Ct. 1223 (2001), Gammoh v. City of La Habra,
395 F.3d 1114 (9th Cir. 2005), Worldwide Video of Washington, Inc. v. City of Spokane, 368
F.3d 1186 (9th Cir. 2004), and Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153
(9th Cir. 2003) and on studies in other communities including, but not limited to, Phoenix,
Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas;
Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle,
Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and also on
findings from the Report of the Attorney General's Working Group On The Regulation Of
Sexually Oriented Businesses, (June 6, 1989, State of Minnesota), the Town Council finds:
1. Adult businesses lend themselves to ancillary unlawful and unhealthy activities
that are uncontrolled by the operators of the establishments. Further, there is presently no
mechanism to make the owners of these establishments responsible for the activities that occur
on their premises.
2. Certain employees of adult businesses defined in this Ordinance as adult theatres
and cabarets engage in higher incidence of certain types of illicit sexual behavior than employees
of other establishments.
3. Sexual acts, including intercourse, masturbation, and oral and anal sex, occur at
sexually oriented businesses, especially those which provide private or semi-private booths or
cubicles for viewing films, videos, or live sex shows.
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4. Offering and providing such space encourages such activities, which creates
unhealthy conditions.
5. Persons frequent certain adult theatres, adult arcades, and other adult businesses
for the purpose of engaging in sex within the premises of such sexually oriented businesses.
6. At least 50 communicable diseases may be spread by activities occurring in adult
businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus
infection (HIV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella
infections and shigella infections.
7. From 1981 to the present, there has been an increasing cumulative number of
reported cases of AIDS caused by the human immunodeficiency virus (HIV) in the United States
-- 600 in 1982, 2,200 in 1983, 4,600 in 1984, 8,555 in 1985 and 956,019 through 2005.
8. From 1981 through March 2006, there have been 19,179 confirmed cases of HIV
infection reported to the Arizona Department of Health Services (March 2006 HIV/AIDS Annual
Report).
9. The number of reported cases of primary and secondary syphilis in the United
States has risen to 8,724 in 2005, after seeing declines in the 1990's. (CDC STD Surveillance
Report 2005).
10. The number of cases of gonorrhea in the United States reported annually remains
at a high level, increasing from 2004 to 2005 with over 339,593 cases being reported in 2005.
(CDC STD Surveillance Report 2005).
11. The Centers for Disease Control and Prevention, National Center for HIV, STD,
and TB Prevention of the United States has advised the American public that AIDS and HIV
infection may be transmitted through sexual contact with an infected person, by sharing needles
and/or syringes with someone who is infected, exposure to infected blood and blood
components, and from an infected mother to her newborn.
12. According to the best scientific evidence, AIDS and HIV infection, as well as
syphilis and gonorrhea, are principally transmitted by sexual acts.
13. Sanitary conditions in some adult businesses are unhealthy, in part, because the
activities conducted there are unhealthy, and, in part, because of the unregulated nature of the
activities and the failure of the owners and the operators of the facilities to self-regulate those
activities and maintain those facilities.
14. Numerous studies and reports have determined that semen is found in the areas of
adult businesses where persons view "adult" oriented films.
15. The findings noted in paragraphs number 1 through 14 above raise substantial
governmental concerns.
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16. Adult businesses have operational characteristics which should be reasonably
regulated in order to protect those substantial governmental concerns.
17. A reasonable licensing procedure is an appropriate mechanism to place the burden
of that reasonable regulation on the owners and the operators of the adult businesses. Further,
such licensing procedure will place a heretofore nonexistent incentive on the operators to see that
the adult business is run in a manner consistent with the health, safety and welfare of its patrons
and employees, as well as the citizens of the Town. It is appropriate to require reasonable
assurances that the licensee is the actual operator of the adult business, fully in possession and
control of the premises and activities occurring therein.
18. Prohibition of adult booths and requiring sufficient lighting in adult uses advances
a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring
in adult uses.
19. Requiring licensees of adult businesses to keep and provide information regarding
current employees and certain past employees will help reduce the incidence of certain types of
criminal behavior by facilitating the identification of potential witnesses or suspects and by
preventing minors from working in such establishments.
20. The disclosure of certain information by those persons ultimately responsible for
the day-to-day operation and maintenance of the adult business, where such information is
substantially related to the significant governmental interest in the operation of such uses, will
aid in preventing the spread of sexually transmitted diseases.
21. It is desirable in the prevention of the spread of communicable diseases to obtain
a limited amount of information regarding certain employees who may engage in the conduct
which this Ordinance is designed to prevent or who are likely to be witnesses to such activity.
22. The fact that an applicant for an adult use license has been convicted of a sexually
related crime leads to the rational assumption that the applicant may engage in that conduct in
contravention of this Ordinance.
23. The barring of such individuals from the management of adult uses for a period of
years serves as a deterrent to and prevents conduct which leads to the transmission of sexually
transmitted diseases.
24. The experience of other communities, and the studies conducted by those
communities, supports the conclusion that dispersion of adult uses via licensing requirements is
an effective method of mitigating the potential negative secondary effects from adult uses and
better protecting the health, safety and welfare of the citizenry of the Town.
25. The general welfare, health, morals and safety of the citizens of the Town will be
promoted by the enactment of this Ordinance.
SECTION 3. That certain document known as "Town of Fountain Hills Adult Business
License Regulations," dated October 18, 2007, three copies of which are on file in the office of
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the Town Clerk of the Town of Fountain Hills, which document was made a public record by
Resolution No. 2007-62 of the Town of Fountain Hills, is hereby referred to, adopted and made a
part hereof as if fully set out in this Ordinance.
SECTION 4. That certain document known as "Town of Fountain Hills Adult Business
License Regulations" dated October 18, 2007 shall be inserted into the Town of Fountain Hills
Town Code, Chapter 8, Business Regulations, as a new Article 8-5, Adult Businesses.
SECTION 5. That if any provision or any portion of any provision of this Ordinance or
of the Town of Fountain Hills Adult Business License Regulations is for any reason held to be
unconstitutional or otherwise unenforceable by a court of competent jurisdiction, such provision
or portion thereof shall be deemed separate, distinct and independent of the remaining provisions
of this Ordinance and shall be severed therefrom without affecting the validity of the remaining
portions of this Ordinance.
PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills,
Arizona, October 18, 2007.
FOR THE TOWN OF UNTAIN HILLS: ATTESTED TO:
W. J. Nichols, a r Bevelyn J. Ben , T n Clerk
REVIEWED BY: APPROVED AS TO FORM:
Timothy G. Pickering, Town Manager Andrew J. McGuire, Town Attorney
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