§ 10.2. M-1 Light Industrial District.

10.2.1.

M-1 District Scope and Intent. Regulations in this Section are the M-1 District regulations. Article XIX should be consulted to determine uses and minimum standards for uses allowed by Administrative Permits or Use Permits. The M-1 District is intended to provide locations which meet the needs of processing, manufacturing, fabricating and warehousing, research and office uses, and related uses.

10.2.2.

Use Regulations. Within the M-1 District, land and structures shall be used in accordance with standards herein. Any use not specifically designated as prohibited or allowed with approval of a Use Permit shall be permitted.

Structures and land may be used for manufacturing, processing, warehousing, distribution, research, office and similar uses except as enumerated below or in Article XIX.

A.

Prohibited Use:

1.

Blast Furnace

2.

Boiler Works

3.

Bone Distillation

4.

Dwelling

5.

Fat Rendering

6.

Incinerator

7.

Manufacturing of:

Acetylene Gas

Acid

Ammonia

Asphalt

Bleaching Powder

Brick

Chlorine Gas

Cement

Coal Tar Explosives

Fertilizer

Glue

Gypsum Board

Linoleum

Oil

Oilcloth

Mineral dye

Paint

Paper

Paper Pulp

Patent Leather

Petroleum Products

Plaster of Paris

Pottery

Shellac

Terra cotta

Tile

Turpentine

Varnish

Yeast

8.

Mineral Extraction

9.

Ore Reduction

10.

Rolling mill

11.

Slaughter House

12.

Smelting

13.

Stockyard

14.

Storage of Explosives

15.

Animal Hides

16.

Tanning

17.

Tar Distillation

18.

Truck Terminal

19.

Landfill, Solid Waste Disposal

B.

Accessory Uses: Structures and land may be used for uses customarily incidental to any permitted use. Sexually oriented businesses are hereby established as permitted uses within the M-1 and M-1A Districts only, and said M-1 and M-1A District regulations are hereby amended to add the following subsection "C" to the regulations for each of said M-1 and M-1A Districts:

"(C) Permitted Uses: Sexually Oriented Businesses."

"Sexually oriented businesses are permitted uses within the M-1 and M-1A Districts, only. Such uses are prohibited as uses in any and all other zoning districts."

Sexually Oriented Businesses.

(a)

Preamble.

WHEREAS, sexually oriented businesses require special supervision from the public safety agencies of the City in order to protect and preserve the health, safety, and welfare of the patrons of such businesses as well as the citizens of the City; and

WHEREAS, the City Council finds that sexually oriented businesses, as a category of establishments, are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature; and

WHEREAS, there is convincing documented evidence that sexually oriented businesses, as a category of establishments, have deleterious secondary effects and are often associated with crime and adverse effects on surrounding properties; and

WHEREAS, the City Council desires to minimize and control these adverse effects and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from crime; preserve the quality life; preserve the character of surrounding neighborhoods and deter the spread of urban blight; and

WHEREAS, there is documented evidence of sexually oriented businesses, including adult bookstores and adult video stores, manipulating their inventory and/or business practices to avoid regulation while retaining their essentially "adult" nature. See, e.g. City of New York v. Hommes, 94 N.Y.2d 267: 724 N.E.2 ^nd 368 (N.Y. 1999): For the People Theatres of N.Y., Inc. v. City of New York, 793 N.Y. S.2d 356; 2005 N.Y. App. Div. LEXIS 3743 (April 12, 2005): Z.J. Gifts D-4, L.L.C. v. City of Littleton, Civil Action No. 99-N-166. Memorandum Decision and Order (D. Colo. March 31, 2001) (finding "plaintiff's argument that it is not an adult entertainment establishment frivolous as best"): Taylor v. State, 202 Tex. App. LEXIS 5381 (Tex. App. 2002) (noting that "the nonadult video selections appeared old and several of its display cases were covered with cobwebs"): Illinois v. Lions' Den, Inc., June 10, 2005, Circuit Court of Fourth Judicial Circuit. Effingham County, Ill., Case 04-CH-26 (noting that "the accuracy and credibility" of the evidence on inventory in a Lion's Den was suspect, and that testimony was "less than candid" and "suggested an intention to obscure the actual amount of sexually explicit material sold");

WHEREAS, the City intends to regulate such businesses as sexually oriented businesses through a narrowly tailored ordinance designed to serve the substantial government interest in preventing the negative secondary effects of sexually oriented businesses;

WHEREAS, the City's regulations shall be narrowly construed to accomplish this end;

WHEREAS, with the passage of any Ordinance, the City and the City Council accept as binding the applicability of general principles of criminal and civil law and procedure and the rights and obligations under the United States and Georgia Constitutions, Georgia Code, and the Georgia Rules of Civil and Criminal Procedure; and

WHEREAS, it is not the intent of the City to suppress any speech activities protected by the U.S. Constitution or the Georgia Constitution, but to enact legislation to further the content-neutral governmental interest of the City, to wit, the controlling of secondary effects of sexually oriented businesses.

(b)

Purpose. It is the purpose of the Johns Creek zoning ordinance to regulate land use by sexually oriented businesses in order to promote the health, safety, moral, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the City. The provisions of this ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor effect of this ordinance to restrict or 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.

(c)

Rationale and Findings. Based on evidence of the adverse secondary effects of adult uses presented in hearings and in reports made available to the City Council, and on findings, interpretations, and narrowing constructions incorporated in the cases of City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002): City of Erie v. Pap's A.M., 529 U.S. 277 (2000): City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 427 U.S. 50 (1976), Barnes v. Glen Theatre, Inc., U.S. 560 (1991): California v. LaRue, 409 U.S. 109 (1972); and Artistic Entertainment, Inc. v. City of Warner Robins, 331 F.3d 1196 (11th Cir. 2003): Artistic Entertainment, Inc. v. City of Warner Robins, 223 F.3d 1306 (11th Cir. 2000); Williams v. Pryor, 240 F.3d 944 (11th Cir. 2001); Williams v. A.G. of Alabama, 378 F.3d 1232 (11th Cir. 2004); Gary v. City of Warner Rosins, 311 F.3d 1334 (11th Cir. 2002); Ward v. County of Orange, 217 F.3d 1350 (11th Cir. 2002); Boss Capital, Inc. v. City of Casselberry, 187 F3d 1251 (11th Cir. 1999); David Vincent, Inc. v. Broward County, 200 F.3d 1325 (11th Cir. 200); Sammy's of Mobile, Ltd. V. City of Mobile, 140 F.3d 993 (11th Cir. 1998); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999): This That And The Other Gift and Tobacco, Inc. v. Cobb County, 285 F.3d 1319 (11th Cir. 2002): DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir. 1982); International Food & Beverage Systems v. Ft. Lauderdale, 794 F.2d 1520 (11th Cir. 1986); Gammon v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005); World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004): Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); and Fairfax MKI, Inc. v. City of Clarkston, 274 Ga. 520 (2001); Morrison v. State, 272 Ga. 129 (2000); Sewell v. Georgia, 233 S.E.2d 187 (Ga. 1977), dismissed for want of a substantial federal question, 435 U.S. 982 (1978) (sexual devices); Flippen Alliance for Community Empowerment, Inc. v. Brannan, 601 S.E.2d 106 (Ga. Ct. App. 2004); Oasis Goodtime Emporium I, Inc. v. DeKalb County, 272 Ga. 887 (2000); Chamblee Visuals, LLC v. City of Chamblee, 270 Ga. 33 (1998): World Famous Dudley's Food & Spirits, Inc. v. City of College Park, 265 Ga. 618 (1995); Airport Bookstore, Inc. v. Jackson, 214 (1978); And based upon reports concerning secondary effects occurring in and around sexually oriented businesses, including, but not limited to, Austin, Texas - 1986: Indianapolis, Indiana - 1984; Garden Grove, California - 1991; Houston, Texas - 1983, 1997: Phoenix, Arizona - 1979, 1995-98; Chattanooga, Tennessee - 1999-2003; Los Angeles, California - 1977; Whittier, California - 1978; Spokane, Washington - 2001; St. Cloud, Minnesota - 1994; Littleton, Colorado - 2004; Oklahoma City, Oklahoma - 1986; Dallas, Texas - 1997; Montrose, Illinois - 2005; Kennedale, Texas - 2005; American Planning Association - 2001; Greensboro, North Carolina - 2003; Amarillo, Texas - 1977; New York, New York Times Square - 1994; and the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota).

The City Council finds:

(1)

Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban blight, litter, and sexual assault and exploitation.

(2)

Sexually oriented businesses should be separated from sensitive land uses to minimized the impact of their secondary effects upon such uses, and should be separated from other sexually oriented businesses, to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of sexually oriented businesses in one area.

(3)

Each of the foregoing negative secondary effects constitutes a harm which the City has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the City's rationale for this ordinance exists independent of any comparative analysis between sexually oriented and non-sexually oriented businesses. Additionally, the City's interest in regulating sexually oriented businesses extends to preventing future secondary effects of either current or future sexually oriented businesses that may locate in the City. The City finds that the cases and documentation relied on in this ordinance are reasonably believed to be relevant to said secondary effects.

(d)

Definitions and Standards. Sexually oriented businesses are subject to the following definitions, standards and additional standards.

A.

"Sexually Oriented Business" means an "adult bookstore or adult video store," an "adult cabaret," an "adult motion picture theatre," a "semi-nude model studio," a "sexual device shop," or a "sexual encounter center."

B.

"Adult Bookstore or Adult Video Store" means a commercial establishment which, as one of its substantial business activities, offers for sale or rental for any form of consideration any one or more of the following items: books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the display of "specialized sexual activities" or "specified anatomical areas." A "substantial business activity" exits where the commercial establishment meets any one or more of the following criteria:

(1)

At least 25% of the establishment's displayed merchandise consists of the foregoing items, or

(2)

At least 25% of the wholesale value of the establishment's displayed merchandise consists of the foregoing items, or

(3)

At least 25% of the retail value of the establishment's displayed merchandise consists of the foregoing items, or

(4)

At least 25% of the establishment's revenues derive from the sale or rental, for any form of consideration, of the foregoing items, or

(5)

The establishment devotes at least 25% of its interior business space or, if less than 25%, devotes at least five hundred square feet (500 sq. ft.) of its interior business space, to the display, sale, and/or rental of the foregoing items (aisles and walkways used to access said items shall be included in "interior business space"), or

(6)

The establishment regularly offers for sale or rental at least one thousand (1000) of the foregoing items and limits access to the premises or to the portion of the premises occupied by said items to adults only; or

(7)

The establishment regularly advertises itself or holds itself out, using "adult," "XXX," "sex," "erotic," or substantially similar language, as an establishment that caters to adult sexual interests.

(8)

Maintains an "adult arcade," which means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are regularly maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are characterized by their emphasis upon matter exhibiting "specified sexual activities" or specified "anatomical areas."

C.

"Adult Cabaret" means a nightclub, bar, juice bar, restaurant, bottle club, or other commercial establishment, whether or not alcoholic beverages are served, which regularly feature persons who appear semi-nude.

D.

"Adult Motion Picture Theater" means a commercial establishment where films, motion pictures, videocassettes, slides, or similar photographic reproductions which are characterized by their emphasis upon the display of "specified sexual activities" or "specified anatomical areas" are regularly shown to more than five persons for any form of consideration.

E.

"Semi-Nude Model Studio" means a place where persons regularly appear in a state of semi-nudity for money or any form of consideration in order to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons.

This definition does not apply to any place where persons appearing in a state of semi-nudity did so in a modeling class operated:

a.

By a college, junior college, or university supported entirely or partly by taxation;

b.

By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or

c.

In a structure:

1.

Which has no sign visible from the exterior of the structure and no other advertising that indicates a semi-nude person is available for viewing; and

2.

Where, in order to participate in a class a student must enroll at least three days in advance of the class.

F.

"Semi-Nude or State of Semi-Nudity" means the showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or the showing of the male or female buttocks. This definition shall include the lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a bikini, dress, blouse, shirts, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part.

G.

Nudity or a State of Nudity" means the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft, or cleavage with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola.

H.

"Sexual Device Shop" means a commercial establishment that regularly features sexual devices. Nothing in this definition shall be construed to include any pharmacy, drug store, medical clinic, or any establishment primarily dedicated to providing medical or healthcare products or services, nor shall this definition be construed to include commercial establishments which do not restrict access to their premises by reason of age.

I.

"Sexual Device" means any three (3) dimensional object designed and marketed or stimulation of the male or female human genitals, anus, female breast, or for sadomasochistic use or abuse of oneself or others and shall include devices such as dildos, vibrators, penis pumps, and physical representations of the human genital organs. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy.

J.

"Sexual Encounter Center" shall mean a business or commercial enterprise that, as one of its principal business purposes, purports to offer for any form of consideration, physical contact in the form of wrestling, or tumbling between persons of the opposite sex when one or more of the persons is semi-nude.

K.

"Characterized by" means describing the essential character or quality of an item. As applied in this ordinance, no use shall be classified as a sexually oriented business by virtue of showing, selling, or renting materials rated NC-17 or R by the Motion Picture Association of America.

L.

"City" means the City of Johns Creek, Georgia.

M.

"Operate or Cause to Operate" shall mean to cause to function or to put or keep in a state of doing business. "Operator" means any person on the premises of a sexually oriented business who causes the business to function or who puts or keeps in operation the business or who is authorized to manage the business or exercise overall operational control of the business premises. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is an owner, part owner, or licensee of the business.

N.

"Person" shall mean individual, proprietorship, partnership, corporation, association, or other legal entity.

O.

"Premises" means the real property upon which the sexually oriented business is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the sexually oriented business, the grounds, private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control, or supervision of the licensee, as described in the application for a sexually oriented business license.

P.

"Regularly" means and refers to the consistent and repeated doing of the act so described.

Q.

"Specified Anatomical Areas" means and includes:

Less than completely and opaquely covered: human genitals, pubic region, buttock; and female breast below a point immediately above the top of the areola; and

Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

R.

"Specified Criminal Activity" means:

(1)

Any of the following specified offenses for which less than five years elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date:

a.

Rape, child molestation, sexual assault, sexual battery, aggravated sexual assault, aggravated sexual battery, or public indecency;

b.

Prostitution, keeping a place of prostitution, pimping, or pandering;

c.

Obscenity, disseminating or displaying matter harmful to a minor, or use of child in sexual performance;

d.

Any offense related to any sexually-oriented business, including controlled substance offenses, tax violations, racketeering, crimes involving sex, crimes involving prostitution, or crimes involving obscenity; or

(2)

Any attempt, solicitation, or conspiracy to commit one of the foregoing offenses.

S.

"Specified Sexual Activity" means any of the following:

(a)

Intercourse, oral copulation, masturbation or sodomy; or

(b)

Excretory functions as a part of or in connection with any of the activities described in (1) above.

T.

"Viewing Room" shall mean the room, booth, or area where a patron of a sexually oriented business would ordinarily be positioned while watching a film, videocassette, digital video disc, or other video production.

U.

Additional Standards for Sexually Oriented Businesses.

1.

All boundary lines of the property on which any sexually oriented business is or proposes to be located, (hereinafter the "Property," "Subject Property," or "Site") must be located at least 1,000 feet from the properties listed below:

i.

The property line of R-1, R-2, R-2A, R-3, R-3A, R-4A, R-4, R-5, R-5A, R-6, NUP, CUP, TR, A, A-L, AG-1 zoned property or property conditioned or used for residential purposes.

ii.

The property line of any public recreational facilities, public or private institutional uses, including but not limited to churches, schools, universities, colleges, trade schools, libraries, day care centers and other training facilities where minors are the primary patrons.

2.

All property lines of the sexually oriented business property must be located at least 1,500 feet from any property line of any other Sexually Oriented Business.

3.

All sexually oriented businesses shall submit with the application for a building or occupancy permit, a certified boundary survey by a licensed surveyor of the site and the property lines of surrounding properties identifying the use of properties at or within 1,000 feet of the boundary lines of the subject property, and any and all sexually oriented businesses within 1,500 feet of the boundary line of the subject property.

4.

If the actual or proposed sexually oriented business is to be located in an existing structure where a land disturbance permit is not required, an existing building permit review application must be filed and determined by the environment and community development department to be in compliance with the terms of this ordinance prior to any occupancy.

5.

Permitted curb cut access shall only be directly from a major thoroughfare.

6.

No actual or depicted specified anatomical areas or specified sexual activities shall be visible from outside the structure or on signage outside the structure.

7.

The minimum landscape areas required for the O-I zoning district as specified in section 4.23 shall be required. Where buffers are required, the underlying zoning district buffer standards shall apply.

8.

No final land disturbance permit, building permit, certificate of occupancy, or building permit review certificate may be issued until the approved Sexually Oriented Business License for the business is filed with the Director of the Environment and Community Development Department.

9.

All parts of the Building housing the Sexually Oriented Business shall be located a minimum of 50 feet from all property lines.

10.

Parking spaces at a ratio of ten per 1,000 gross square feet of floor space shall be provided.

11.

Any untrue or misleading statements or representations made on any application or document submitted to the City of Johns Creek in connection with an actual or proposed use of land for a Sexually Oriented Business shall be grounds for the refusal or revocation of any permit or certificate of occupancy relating to said land use, under such procedures as may now or hereafter be provided by law for the refusal or revocation of such permit or certificate.

10.2.3.

Development Standards.

A.

Height Regulations: Whenever uses or structures permitted in the M-1 District adjoin a Dwelling District, structures shall be set back at least 12 additional feet for each foot of height in excess of 50 feet.

Otherwise, no structure shall exceed the higher of 8 stories or 100 feet in height.

B.

Minimum Front Yard: 40 feet

C.

Minimum Side Yard: None. See Section 4.23 for buffer and landscape requirements.

D.

Minimum Rear Yard: None. See Section 4.23 for buffer and landscape requirements.

E.

Minimum Lot Area: None

F.

Minimum Accessory Structure Requirements: Accessory structures shall not be located within the minimum front yard.

G.

Minimum Lot Frontage: 35 feet adjoining a street

10.2.4.

Other Regulations. All other applicable regulations must be satisfied prior to development under this zoning district.

10.2.5.

Environmental Impact Report. In accordance with Section 28.4.3.2, submit an Environmental Impact Report as required.