Text of AZ SB 1030 (2023)

PREFILED JAN 06 2023 REFERENCE TITLE: drag performers; drag shows; regulation State of Arizona Senate Fifty-sixth Legislature First Regular Session 2023 SB 1030 Introduced by Senator Kern An Act amending sections 11-811, 12-741, 13-1422 and 13-1425, Arizona Revised Statutes; relating to adult oriented businesses. (TEXT OF BILL BEGINS ON NEXT PAGE) Be it enacted by the Legislature of the State of Arizona: Section 1. Section 11-811, Arizona Revised Statutes, is amended to read: START_STATUTE11-811. Zoning ordinance; zoning districts; definitions A. Pursuant to this article, the board of supervisors may shall adopt a zoning ordinance in order to conserve and promote the public health, safety, convenience and general welfare. The zoning ordinance and all rezonings and zoning regulations amendments adopted under this article shall be consistent with and conform to the adopted comprehensive plan. In addition to the other matters that are required or authorized under this section and article 1 of this chapter, the zoning ordinance: 1. 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. 2. May establish the percentage of a lot or parcel that may be covered by buildings and the size of yards, courts and other open spaces. 3. Shall consider access to incident solar energy. 4. May provide for retirement community zoning districts. 5. May Shall provide for the regulation and use of business licenses, adult oriented business manager permits, and adult service provider permits, drag show permits and drag performer 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, establishments that conduct drag shows and nude model studios. With respect to cabarets, the ordinance shall not conflict with specific statutory or valid regulatory requirements applicable to persons licensed to dispense alcoholic beverages, but the ordinance may shall include regulation of the age and conduct of erotic entertainers in a manner at least as restrictive as rules adopted under title 4. Notwithstanding section 11-812, a county in regulating or licensing businesses and facilities pursuant to this paragraph may impose reasonable operating requirements that affect the existing uses of businesses and facilities. 6. Shall designate and zone appropriate areas of reasonable size in which there may be established with reasonable permanency canneries, fertilizer plants, refineries, commercial feedlots, meat packing plants, tallow works and other like businesses. A dairy operation, including areas designated for the raising of replacement heifers or bulls owned by the same dairy operation, is not subject to this paragraph, and is a general agricultural purpose under subsection D, paragraph 2 of this section and section 11-812, subsection A, paragraph 2. A replacement heifer or bull raising operation of a dairy that is not on contiguous property of the dairy is subject to this paragraph unless the operation begins within one-quarter mile of the dairy. B. 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 that 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 11-813. The provisions of overlay zoning shall apply retroactively to authorize overlay zoning districts and regulations adopted before April 20, 1993. C. In accordance with article II, sections 1 and 2, Constitution of Arizona, the board shall consider the individual property rights and personal liberties of the residents of the county before adopting any zoning ordinance. D. This section does not authorize: 1. The imposition of dedications, exactions, fees or other requirements that are not otherwise authorized by law. 2. The regulation or restriction of the use or occupation of land or improvements for railroad, mining, metallurgical, grazing or general agricultural purposes, if the tract concerned is five or more contiguous commercial acres. For the purposes of this paragraph, general agricultural purposes do not include the cultivation of cannabis as defined in section 13-3401 or marijuana as defined in section 13-3401 or 36-2801. E. For the purposes of this section: 1. "Adult arcade" means any place to which the public is permitted allowed 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 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 bookstores or video stores, cabarets, adult live entertainment establishments, adult motion picture theaters, adult theaters, massage establishments that offer adult service, establishments that conduct drag shows, drag performers 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. 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. 12. "Drag performer" means a person who dresses in clothing and uses makeup and other physical markers opposite of the person's gender at birth to exaggerate gender signifiers and roles and engages in singing, dancing or a monologue or skit in order to entertain an audience. 13. "Drag show" means a show or performance for entertainment at which a single performer or group of performers dress in clothing and use makeup and other physical markers opposite of the performer's or group of performers' gender at birth to exaggerate gender signifiers and roles and engage in singing, dancing or a monologue or skit in order to entertain an audience of two or more people. 12. 14. "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) Persons who are 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 who is licensed pursuant to title 32, chapter 13 or 17. (c) Registered nurse practitioners who are licensed pursuant to title 32, chapter 15. (d) Persons who are employed or acting as trainers for a bona fide amateur, semiprofessional or professional athlete or athletic team. (e) Persons who are licensed pursuant to title 32, chapter 3 or 5 if the activity is limited to the head, face or neck. 13. 15. "Nude model studio": (a) 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 (b) 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) (i) 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) (ii) A student must enroll at least three days in advance of a class in order to participate. (c) (iii) No more than one nude or seminude model is on the premises at any time. 14. 16. "Nude", "nudity" or "state of nudity" means any of the following: (a) The appearance of a human anus, genitals or a 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 a female breast below a point immediately above the top of the areola. 15. 17. "Principal business purposes" means that a commercial establishment derives fifty percent or more of its gross income from the sale or rental of items listed in paragraph 2 of this subsection. 16. 18. "Seminude" means a state of dress in which clothing covers no more than the genitals, pubic region and 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. 17. 19. "Specific anatomical areas" means any of the following: (a) A human anus, genitals, the 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. 18. 20. "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. END_STATUTE Sec. 2. Section 12-741, Arizona Revised Statutes, is amended to read: START_STATUTE12-741. Unauthorized disclosure of intimate images; civil action; exceptions; confidential information form; remedies; statute of limitations; definitions A. A person is liable in a civil action for intentionally disclosing or threatening to disclose an intimate image of another individual if the depicted individual suffers harm from the disclosure or threatened disclosure and the person knew or should have known all of the following: 1. The depicted individual did not consent to the disclosure. 2. The intimate image was private. 3. The depicted individual was identifiable from the image itself or from information that is displayed in connection with the image. B. Evidence that the depicted individual consented to the creation of the image or that the depicted individual previously consented to the disclosure of the image does not by itself establish that the depicted individual consented to the disclosure of the intimate image or that the depicted individual lacked a reasonable expectation of privacy. C. A depicted individual who does not consent to the specific sexual activities or state of nudity depicted in an intimate image of the individual retains a reasonable expectation of privacy even if the image was created when the depicted individual was in a public place. D. Notwithstanding subsection A of this section, a person is not liable under this section if the person proves that disclosing or threatening to disclose the intimate image was any of the following: 1. Made in good faith in any of the following: (a) Law enforcement. (b) A legal proceeding. (c) Medical education or treatment. 2. Made in good faith in reporting or investigating any of the following: (a) Unlawful conduct. (b) Unsolicited and unwelcome conduct. 3. Related to a matter of public concern or public interest. 4. Reasonably intended to assist the depicted individual. 5. Made by a parent, legal guardian or individual with legal custody of a child and the depicted individual is the child unless the image is disclosed with the intent to harm the depicted individual. E. Subsection D of this section does not apply if the plaintiff proves the disclosure was prohibited by law or made for the purpose of sexual arousal, sexual gratification, humiliation, degradation or monetary or commercial gain. F. Disclosing or threatening to disclose an intimate image is not a matter of public concern or public interest solely because the depicted individual is a public figure. G. If the plaintiff files with the court and serves on the defendant a confidential information form that includes the excluded or redacted plaintiff's name and other identifying characteristics, the court may exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the plaintiff. The court may make further orders as necessary to protect the identity and privacy of a plaintiff. H. The prevailing plaintiff may recover: 1. The greater of: (a) Economic and noneconomic damages that are proximately caused by the defendant's disclosure or threatened disclosure, including damages for emotional distress whether or not accompanied by other damages. (b) Statutory damages of not more than $10,000 against each defendant found liable under this section for all of the defendant's disclosures and threatened disclosures that the plaintiff knew or reasonably should have known when filing the action or that became known during the pendency of the action. In determining the amount of statutory damages under this subdivision, consideration must be given to the age of the parties at the time of the disclosure or threatened disclosure, the number of disclosures or threatened disclosures made by the defendant, the breadth of distribution of the image by the defendant and other exacerbating or mitigating factors. 2. An amount equal to any monetary gain made by the defendant from disclosing or threatening to disclose the intimate image. 3. Punitive damages. 4. Reasonable attorney fees and costs. 5. Additional relief, including injunctive relief. I. A civil action for an unauthorized disclosure may not be brought later than four years after the date that the disclosure was discovered or should have been discovered with the exercise of reasonable diligence except that a threat to disclose may not be brought later than four years after the date of the threat to disclose. J. In a civil action brought by a depicted individual who was a minor on the date of the disclosure or threat to disclose, the time specified in subsection I of this section does not begin to run until the depicted individual attains the age of majority. K. For the purposes of this section: 1. "Consent" means affirmative, conscious and voluntary authorization by an individual with legal capacity to give authorization. 2. "Depicted individual" means an individual whose body is shown in whole or in part in an intimate image. 3. "Disclose" or "disclosure" means to display, distribute, publish, advertise or offer. 4. "Harm" includes physical harm, economic harm and emotional distress whether or not accompanied by physical or economic harm. 5. "Intimate image" means a photograph, film, videotape, digital recording or other similar medium that shows a state of nudity or specific sexual activities. 6. "Private" means either of the following: (a) Created or obtained under circumstances in which a depicted individual had a reasonable expectation of privacy. (b) Made accessible through theft, bribery, extortion, fraud, false pretenses, voyeurism or exceeding authorized access to an account, message, file, device, resource or property. 7. "Specific sexual activities" has the same meaning prescribed in section 11-811. 8. "State of nudity" has the same meaning prescribed in section 11-811, subsection E, paragraph 14 16, subdivision (a). END_STATUTE Sec. 3. Section 13-1422, Arizona Revised Statutes, is amended to read: START_STATUTE13-1422. Adult oriented businesses; location; hours of operation; injunction; classification; definitions A. An adult oriented business shall not be located within one-fourth mile of a child care facility, a private, public or charter school, a public playground, a public recreational facility, a residence or a place of worship. For the purposes of this subsection, measurements shall be made in a straight line in all directions, without regard to intervening structures or objects, from the nearest point on the property line of a parcel containing an adult oriented business to the nearest point on the property line of a parcel containing a child care facility, a private, public or charter school, a public playground, a public recreational facility, a residence or a place of worship. An adult oriented business lawfully operating in conformity with this section does not violate this section if a child care facility, a private, public or charter school, a public playground, a public recreational facility, a residence or a place of worship subsequently locates within one-fourth mile of the adult oriented business. B. 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. A drag show shall not be conducted 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. C. Subsection A of this section does not prohibit counties or municipalities from enacting and enforcing ordinances that regulate the location of adult oriented businesses. D. Subsection B of this section does not prohibit counties or municipalities from enacting and enforcing ordinances that regulate an adult arcade, adult bookstore or video store, adult cabaret, adult motion picture theater, adult theater, escort agency, or nude model studio or drag show in a manner that is at least as restrictive as subsection B of this section. E. If there is reason to believe that a violation of subsection A of this section is being committed in any county or city, the county attorney of the county shall, or a citizen of this state who resides in the county or city in the citizen's own name may, maintain an action to abate and prevent the violation and to enjoin perpetually any person who is committing the violation and the owner, lessee or agent of the building or place in or on which the violation is occurring from directly or indirectly committing or permitting allowing the violation. F. A violation of subsection A or B of this section is a class 1 misdemeanor. Each day of violation constitutes a separate offense. G. For the purposes of this section: 1. "Adult arcade" has the same meaning prescribed in section 11-811. 2. "Adult bookstore or video store" has the same meaning prescribed in section 11-811. 3. "Adult cabaret": excludes (a) Does not include any establishment licensed under title 4. and (b) Includes any nightclub, bar, restaurant or other similar commercial establishment that regularly features: (a) (i) Persons who appear in a state of nudity or who are seminude. (b) (ii) Live performances that are characterized by the exposure of specific anatomical areas or specific sexual activities. (c) (iii) 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 11-811. 5. "Adult oriented business" has the same meaning prescribed in section 11-811. 6. "Adult theater" has the same meaning prescribed in section 11-811. 7. "Drag show" means a show or performance for entertainment at which a single performer or group of performers dress in clothing and use makeup and other physical markers opposite of the performer's or group of performers' gender at birth to exaggerate gender signifiers and roles and engage in singing, dancing or a monologue or skit in order to entertain an audience of two or more people. 7. 8. "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. 8. 9. "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. 9. 10. "Nude model studio" has the same meaning prescribed in section 11-811. 10. 11. "Nude", "nudity" or "state of nudity" has the same meaning prescribed in section 11-811. 11. 12. "Place of worship" means a structure where persons regularly assemble for worship, ceremonies, rituals and education relating to a particular form of religious belief and which a reasonable person would conclude is a place of worship by reason of design, signs or architectural or other features. 12. 13. "Residence" means a permanent dwelling place. 13. 14. "Seminude" has the same meaning prescribed in section 11-811. 14. 15. "Specific anatomical areas" has the same meaning prescribed in section 11-811. 15. 16. "Specific sexual activities" has the same meaning prescribed in section 11-811. END_STATUTE Sec. 4. Section 13-1425, Arizona Revised Statutes, is amended to read: START_STATUTE13-1425. Unlawful disclosure of images depicting states of nudity or specific sexual activities; classification; definitions A. It is unlawful for a person to intentionally disclose an image of another person who is identifiable from the image itself or from information displayed in connection with the image if all of the following apply: 1. The person in the image is depicted in a state of nudity or is engaged in specific sexual activities. 2. The depicted person has a reasonable expectation of privacy. Evidence that a person has sent an image to another person using an electronic device does not, on its own, remove the person's reasonable expectation of privacy for that image. 3. The image is disclosed with the intent to harm, harass, intimidate, threaten or coerce the depicted person. B. This section does not apply to any of the following: 1. The reporting of unlawful conduct. 2. Lawful and common practices of law enforcement, criminal reporting, legal proceedings or medical treatment. 3. Images involving voluntary exposure in a public or commercial setting. 4. An interactive computer service, as defined in 47 United States Code section 230(f)(2), or an information service, as defined in 47 United States Code section 153, with regard to content wholly provided by another party. 5. Any disclosure that is made with the consent of the person who is depicted in the image. C. A violation of this section is a class 5 felony, except that a violation of this section is a: 1. Class 4 felony if the image is disclosed by electronic means. 2. Class 1 misdemeanor if a person threatens to disclose but does not disclose an image that if disclosed would be a violation of this section. D. For the purposes of this section: 1. "Disclose" means display, distribute, publish, advertise or offer. 2. "Disclosed by electronic means" means delivery to an email address, mobile device, tablet or other electronic device and includes disclosure on a website. 3. "Harm" means physical injury, financial injury or serious emotional distress. 4. "Image" means a photograph, videotape, film or digital recording. 5. "Reasonable expectation of privacy" means the person exhibits an actual expectation of privacy and the expectation is reasonable. 6. "Specific sexual activities" has the same meaning prescribed in section 11-811, subsection E, paragraph 18 20, subdivisions (a) and (b). 7. "State of nudity" has the same meaning prescribed in section 11-811, subsection E, paragraph 14 16, subdivision (a). END_STATUTE