Reference Title: adult oriented businesses; counties

AN ACT
AMENDING SECTIONS 4-112 AND 11-821, ARIZONA REVISED STATUTES; AMENDING TITLE 11, CHAPTER 6, ARTICLE 2, ARIZONA REVISED STATUTES, BY ADDING SECTION 11-821.02; AMENDING TITLE 13, CHAPTER 14, ARIZONA REVISED STATUTES, BY ADDING SECTION 13-1421; RELATING TO ADULT ORIENTED BUSINESSES.

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

Section 1. Section 4-112, Arizona Revised Statutes, is amended to read:

4-112 . Powers and duties of board and director of department of liquor licenses and control; investigations; county and municipal regulation

A. The board shall:

1. Grant and deny applications in accordance with the provisions of this title.

2. Adopt rules in order to carry out the provisions of this section.

3. Hear appeals and hold hearings as provided in this section.

B. Except as provided in subsection A of this section, the director shall administer the provisions of this title, including:

1. Adopting rules:

(a) For carrying out the provisions of this title.

(b) For the proper conduct of the business to be carried on under each specific type of spirituous liquor license.

(c) To enable and assist state officials and political subdivisions to collect taxes levied or imposed in connection with spirituous liquors.

(d) For the issuance and revocation of certificates of registration of retail agents, including provisions governing the shipping, storage and delivery of spirituous liquors by registered retail agents, the keeping of records and the filing of reports by registered retail agents.

(e) To establish requirements for licensees under section 4-209, subsection B, paragraph 12.

2. Employing necessary personnel and fixing their compensation.

3. Keeping an index record which shall be a public record open to public inspection and shall contain the name and address of each licensee and the name and address of any person having an interest, either legal or equitable, in such license as shown by any written document, which document shall be placed on file in the office of the board.

4. Providing the board with such supplies and personnel as may be directed by the board.

5. Responding in writing to any law enforcement agency that submits an investigative report to the department relating to a violation of this title, setting forth what action, if any, the department has taken or intends to take on the report and, if the report lacks sufficient information or is otherwise defective for use by the department, what the agency must do to remedy the report.

6. Taking such steps as are necessary to maintain effective liaison with the department of public safety and all local law enforcement agencies in the enforcement of this title including the laws of this state against the consumption of spirituous liquor by persons under the legal drinking age.

7. Providing training to law enforcement agencies in the proper investigation and reporting of violations of this title.

C. The director shall establish within the department a separate investigations unit which has as its sole responsibility the investigation of compliance with this title including the investigation of licensees alleged to have sold or distributed spirituous liquor in any form to persons under the legal drinking age.

D. All employees of the department of liquor licenses and control, except members of the state liquor board and the director of the department, shall be employed by the department in the manner prescribed by the department of administration.

E. The director may enter into a contract or agreement with any public agency for any joint or cooperative action as provided for by title 11, chapter 7, article 3.

F. The board or the director may take evidence, administer oaths or affirmations, issue subpoenas requiring attendance and testimony of witnesses, cause depositions to be taken and require by subpoena duces tecum the production of books, papers and other documents which are necessary for the enforcement of this title. Proceedings held during the course of a confidential investigation are exempt from title 38, chapter 3, article 3.1. If a person refuses to obey a subpoena or fails to answer questions as provided by this subsection, the board or the director may apply to the superior court in the manner provided in section 12-2212. The board or director may serve subpoenas by personal service or certified mail, return receipt requested.

G. The director may:

1. Examine books, records and papers of a licensee.

2. Require applicants, licensees, employees who serve, sell or furnish spirituous liquors to retail customers, managers and managing agents to take training courses approved by the director in spirituous liquor handling and spirituous liquor laws and rules. The director shall adopt rules that set standards for approving training courses.

3. Delegate to employees of the department authority to exercise powers of the director in order to administer the department.

4. Regulate signs that advertise a spirituous liquor product at licensed retail premises.

5. Cause to be removed from the marketplace spirituous liquor that may be contaminated.

6. Regulate the age and conduct of erotic entertainers at licensed premises. The age limitation governing these erotic entertainers may be different from other employees of the licensee.

7. Issue and enforce cease and desist orders against any person or entity that sells beer, wine or spirituous liquor without an appropriate license or permit.

8. Confiscate wines carrying a label including a reference to Arizona or any Arizona city, town or place unless at least seventy-five per cent by volume of the grapes used in making the wine were grown in this state.

H. A COUNTY OR municipality may enact and enforce ordinances regulating the age and conduct of erotic entertainers at licensed premises in a manner at least as restrictive as rules adopted by the director.

Sec. 2. Section 11-821, Arizona Revised Statutes, is amended to read:

11-821 . County plan; definitions

A. The commission shall formulate and adopt a comprehensive long-term county plan for the development of the area of jurisdiction. The county plan, with the accompanying maps, plats, charts and descriptive matter, shall show the commission's recommendations for the development of the area of jurisdiction together with the general zoning regulations. The county plan shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted and harmonious development of the area of jurisdiction. In the preparation of the county plan the commission shall make surveys and studies of the present conditions and prospective future growth of the area of the jurisdiction.

B. The county plan shall provide for zoning, shall show the zoning districts designated as appropriate for various classes of residential, business and industrial uses and shall provide for the establishment of setback lines and other plans providing for adequate light, air and parking facilities, and for expediting traffic within the districts. The plan may establish the percentage of a lot or parcel which may be covered by buildings, and the size of yards, courts and other open spaces. The plan shall consider access to incident solar energy. The plan may provide for retirement community zoning districts. The plan may provide for the REGULATION AND use of business licenses , ADULT ORIENTED BUSINESS MANAGER PERMITS AND ADULT SERVICE PROVIDER PERMITS in conjunction with the establishment OR OPERATION of adult oriented BUSINESSES AND facilities, including adult arcades, adult bookstores or video stores, CABARETS, adult live entertainment establishments, adult motion picture theaters, adult theaters, massage establishments and nude model studios. WITH RESPECT TO CABARETS, THE PLAN SHALL NOT CONFLICT WITH SPECIFIC STATUTORY OR VALID REGULATORY REQUIREMENTS APPLICABLE TO PERSONS LICENSED TO DISPENSE ALCOHOLIC BEVERAGES, BUT THE PLAN MAY INCLUDE REGULATION OF THE AGE AND CONDUCT OF EROTIC ENTERTAINERS IN A MANNER AT LEAST AS RESTRICTIVE AS RULES ADOPTED UNDER TITLE 4.

C. To carry out the purposes of this article, the board may adopt overlay zoning districts and regulations applicable to particular buildings, structures and land within individual zones. For the purposes of this subsection, "overlay zoning district" means a special zoning district that includes regulations which modify regulations in another zoning district with which the overlay zoning district is combined. Overlay zoning districts and regulations shall be adopted pursuant to section 11-829. The provisions of overlay zoning shall apply retroactively to authorize overlay zoning districts and regulations adopted before April 20, 1993.

D. For the purposes of this section:

1. "Adult arcade" means any place to which the public is permitted or invited and in which 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 involving specific sexual activities or specific anatomical areas to persons in booths or viewing rooms.

2. "Adult bookstore or video store" means a commercial establishment that offers for sale or rent any of the following as one of its principal business purposes:

(a) Books, magazines, periodicals or other printed matter, photographs, films, motion pictures, videocassettes or reproductions or slides or other visual representations that depict or describe specific sexual activities or specific anatomical areas.

(b) Instruments, devices or paraphernalia that are designed for use in connection with specific sexual activities.

3. "Adult live entertainment establishment" means an establishment that features either:

(a) Persons who appear in a state of nudity.

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

4. "Adult motion picture theater" means a commercial establishment in which for any form of consideration films, motion pictures, videocassettes, slides or other similar photographic reproductions that are characterized by the depiction or description of specific sexual activities or specific anatomical areas are predominantly shown.

5. "ADULT ORIENTED BUSINESS" MEANS ADULT ARCADES, ADULT BOOK STORES OR ADULT VIDEO STORES, CABARETS, ADULT LIVE ENTERTAINMENT ESTABLISHMENTS, ADULT MOTION PICTURE THEATERS, ADULT THEATERS, MASSAGE ESTABLISHMENTS THAT OFFER ADULT SERVICE OR NUDE MODEL STUDIOS.

6. "ADULT ORIENTED BUSINESS MANAGER" MEANS A PERSON ON THE PREMISES OF AN ADULT ORIENTED BUSINESS WHO IS AUTHORIZED TO EXERCISE OVERALL OPERATIONAL CONTROL OF THE BUSINESS.

7. "ADULT SERVICE" MEANS DANCING, SERVING FOOD OR BEVERAGES, MODELING, POSING, WRESTLING, SINGING, READING, TALKING, LISTENING OR OTHER PERFORMANCES OR ACTIVITIES CONDUCTED FOR ANY CONSIDERATION IN AN ADULT ORIENTED BUSINESS BY A PERSON WHO IS NUDE OR SEMINUDE DURING ALL OR PART OF THE TIME THAT THE PERSON IS PROVIDING THE SERVICE.

8. "ADULT SERVICE PROVIDER" OR "EROTIC ENTERTAINER" MEANS ANY NATURAL PERSON WHO PROVIDES AN ADULT SERVICE.

5. 9. "Adult theater" means a theater, concert hall, auditorium or similar commercial establishment that predominantly features persons who appear in a state of nudity or who engage in live performances that are characterized by the exposure of specific anatomical areas or specific sexual activities.

10. "CABARET" MEANS AN ADULT ORIENTED BUSINESS LICENSED TO PROVIDE ALCOHOLIC BEVERAGES PURSUANT TO TITLE 4, CHAPTER 2, ARTICLE 1.

11. "DISCERNIBLY TURGID STATE" MEANS THE STATE OF BEING VISIBLY SWOLLEN, BLOATED, INFLATED OR DISTENDED.

6. 12. "Massage establishment" means an establishment in which a person, firm, association or corporation engages in or permits massage activities, including any method of pressure on, friction against, stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating of external soft parts of the body with the hands or with the aid of any mechanical apparatus or electrical apparatus or appliance. This paragraph does not apply to:

(a) Physicians licensed pursuant to title 32, chapter 7, 8, 13, 14 or 17.

(b) Registered nurses, licensed practical nurses or technicians who are acting under the supervision of a physician licensed pursuant to title 32, chapter 13 or 17.

(c) Persons who are employed or acting as trainees TRAINERS for a bona fide amateur, semiprofessional or professional athlete or athletic team.

(d) Persons who are licensed pursuant to title 32, chapter 3 or 5 if the activity is limited to the head, face or neck.

7. 13. "Nude model studio" means a place in which a person who appears in a state of nudity or who displays specific anatomical areas is observed, sketched, drawn, painted, sculptured, photographed or otherwise depicted by other persons who pay money or other consideration. Nude model studio does not include a proprietary school that is licensed by this state, a college, community college or university that is supported entirely or in part by taxation, a private college or university that maintains and operates educational programs in which credits are transferable to a college, community college or university that is supported entirely or in part by taxation or a structure to which the following apply:

(a) A sign is not visible from the exterior of the structure and no other advertising appears indicating that a nude person is available for viewing.

(b) A student must enroll at least three days in advance of a class in order to participate.

(c) No more than one nude or seminude model is on the premises at any time.

8. 14. "NUDE", "nudity" or "state of nudity" means ANY OF THE FOLLOWING :

(a) The appearance of a human anus, genitals or female breast BELOW A POINT IMMEDIATELY ABOVE THE TOP OF THE AREOLA .

(b) A state of dress that fails to opaquely cover a human anus, genitals or areola of the female breast BELOW A POINT IMMEDIATELY ABOVE THE TOP OF THE AREOLA .

15. "PRINCIPAL BUSINESS PURPOSES" MEANS THAT A COMMERCIAL ESTABLISHMENT DERIVES FIFTY PER CENT OR MORE OF ITS GROSS INCOME FROM THE SALE OR RENTAL OF ITEMS LISTED IN PARAGRAPH 2.

9. 16. "Seminude" means a state of dress in which clothing covers no more than the genitals, pubic region and areola of the female breast BELOW A POINT IMMEDIATELY ABOVE THE TOP OF THE AREOLA , as well as portions of the body that are covered by supporting straps or devices.

10. 17. "Specific anatomical areas" means ANY OF THE FOLLOWING: the male genitals in a state of sexual arousal or the vulva or more intimate parts of the female genitals. Specific anatomical areas may include:

(a) Human A HUMAN ANUS, genitals, pubic region or A FEMALE breast below a point immediately above the top of the areola that is less than completely and opaquely covered.

(b) Male genitals in a discernibly turgid state even if completely and opaquely covered.

11. 18. "Specific sexual activities" means any of the following:

(a) Human genitals in a state of sexual stimulation or arousal.

(b) Sex acts, normal or perverted, actual or simulated, including acts of human masturbation, sexual intercourse, oral copulation or sodomy.

(c) Fondling or other erotic touching of the human genitals, pubic region, buttocks, anus or female breast.

(d) Excretory functions as part of or in connection with any of the activities under subdivision (a), (b) or (c) of this paragraph.

Sec. 3. Title 11, chapter 6, article 2, Arizona Revised Statutes, is amended by adding section 11-821.02, to read:

11-821.02 . Operating requirements for businesses and facilities

NOTWITHSTANDING SECTION 11-830, A COUNTY IN REGULATING OR LICENSING BUSINESSES AND FACILITIES PURSUANT TO SECTION 11-821, MAY IMPOSE REASONABLE OPERATING REQUIREMENTS THAT AFFECT THE EXISTING USES OF BUSINESSES AND FACILITIES.

Sec. 4. Title 13, chapter 14, Arizona Revised Statutes, is amended by adding section 13-1421, to read:

13-1421 . Sexually oriented businesses; hours of operation; classification; definitions

A. 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. THIS SECTION DOES NOT PROHIBIT COUNTIES OR MUNICIPALITIES FROM ENACTING AND ENFORCING ORDINANCES THAT REGULATE SEXUALLY ORIENTED BUSINESSES IN A MANNER THAT IS AT LEAST AS RESTRICTIVE AS SUBSECTION A OF THIS SECTION.

D. 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 THEATER" HAS THE SAME MEANING PRESCRIBED IN SECTION 11-821.

6. "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. "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. "NUDE MODEL STUDIO" HAS THE SAME MEANING PRESCRIBED IN SECTION 11-821.

9. "NUDE", "NUDITY" OR "STATE OF NUDITY" HAS THE SAME MEANING PRESCRIBED IN SECTION 11-821.

10. "SEMINUDE" HAS THE SAME MEANING PRESCRIBED IN SECTION 11-821.

11. "SPECIFIC ANATOMICAL AREAS" HAS THE SAME MEANING PRESCRIBED IN SECTION 11-821.

12. "SPECIFIC SEXUAL ACTIVITIES" HAS THE SAME MEANING PRESCRIBED IN SECTION 11-821.

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.