ORDINANCE
NO. _____________
AN
ORDINANCE AMENDING THE ZONING ORDINANCE BY DISPERSING SEXUALLY ORIENTED
BUSINESSES AND LIMITING THEM TO A SPECIFIED ZONING DISTRICT; PRESCRIBING
DEFINITIONS OF SEXUALLY ORIENTED BUSINESSES; PROVIDING FOR LICENSING AND
REGULATION OF SEXUALLY ORIENTED BUSINESSES AND EMPLOYEES; AND PROVIDING FOR
ADDITIONAL MISCELLANEOUS REGULATIONS FOR SEXUALLY ORIENTED BUSINESSES.
WHEREAS,
sexually oriented businesses require special supervision from the public safety
agencies of the City 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 City; and
WHEREAS, the City Council finds
that sexually oriented 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 City which demands reasonable regulation of sexually oriented businesses
in order to protect the health and well-being of the citizens; and
WHEREAS,
licensing is a legitimate and reasonable means of accountability to ensure that
operators of sexually oriented businesses comply with reasonable regulations
and to ensure that operators do not knowingly allow their establishments to be
used as places of illegal sexual activity or solicitation; and
WHEREAS,
there is convincing documented evidence that sexually oriented 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 sexually oriented 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 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 increased crime; preserve the quality of life; preserve the
property values and character of surrounding neighborhoods and deter the spread
of urban blight; and
WHEREAS,
the City Council has determined that locational criteria alone do not
adequately protect the health, safety, and general welfare of the people of
this City; and
WHEREAS, it is not the intent of
this ordinance to suppress any speech activities protected by the First
Amendment, but to enact a content neutral ordinance which addresses the
secondary effects of sexually oriented businesses; and
WHEREAS,
it is not the intent of the City Council to condone or legitimize the
distribution of obscene material, and the 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 in the City.
Pursuant to the authority granted by the Constitution and the legislature of the State of
, BE IT ENACTED BY THE CITY COUNCIL OF
__________________________,_________________________COUNTY,
_________________ :
SECTION I. PURPOSE
AND FINDINGS.
(A) Purpose. It is the purpose of this ordinance to regulate
sexually oriented businesses in order to promote the health, safety, morals,
and general welfare of the citizens of the City, and to establish reasonable
and uniform regulations to prevent the deleterious location and concentration
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
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.
(B) Findings. Based on evidence concerning the adverse
secondary effects of adult uses on the community presented in hearings and in
reports made available to the 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), and City
of Los Angeles v. Alameda Books, Inc. 121 S. Ct. 1223 (2001) 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 Council finds:
(1) Sexually oriented businesses lend
themselves to ancillary unlawful and unhealthy activities that are presently 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 sexually oriented
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 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.
(4) Offering and providing such space
encourages such activities, which creates unhealthy conditions.
(5) Persons frequent certain adult theatres,
adult arcades, and other sexually oriented 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 sexually oriented 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) Since 1981 and 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 253,448 through December 31, 1992.
(8) As of
_________________, 200_, there have been
reported cases of AIDS in the State of .
(9) Since 1981 and to the present, there
have been an increasing cumulative number of persons testing positive for the
HIV antibody test in
, .
(10) The number of cases of early (less than
one year) syphilis in the
(11) The number of cases of gonorrhea in the
(12) The surgeon general of the
(13) According to the best scientific evidence,
AIDS and HIV infection, as well as syphilis and gonorrhea, are principally
transmitted by sexual acts.
(14) Sanitary conditions in some sexually
oriented 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.
(15) Numerous studies and reports have
determined that semen is found in the areas of sexually oriented businesses
where persons view "adult" oriented films.
(16) The findings noted in paragraphs number 1
through 15 raise substantial governmental concerns.
(17) Sexually oriented businesses have
operational characteristics which should be reasonably regulated in order to
protect those substantial governmental concerns.
(18) A reasonable licensing procedure is an
appropriate mechanism to place the burden of that reasonable regulation on the
owners and the operators of the sexually oriented businesses. Further, such a licensing procedure will
place a heretofore nonexistent incentive on the operators to see that the sexually
oriented 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 City. It is appropriate to require reasonable
assurances that the licensee is the actual operator of the sexually oriented
business, fully in possession and control of the premises and activities
occurring therein.
(19) Removal of doors on adult booths and
requiring sufficient lighting on premises with adult booths advances a
substantial governmental interest in curbing the illegal and unsanitary sexual
activity occurring in adult theatres.
(20) Requiring licensees of sexually oriented
businesses to keep 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.
(21) The disclosure of certain information by
those persons ultimately responsible for the day-to-day operation and maintenance
of the sexually oriented 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.
(22) 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.
(23) 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.
(24) 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.
(25) The general welfare, health, morals and
safety of the citizens of the City will be promoted by the enactment of this
ordinance.
SECTION II.
DEFINITIONS.
(1) ADULT ARCADE means any place to
which the public is permitted or invited wherein coin-operated, slug-operated,
or for any form of consideration, or electronically, electrically, or
mechanically controlled still or motion picture machines, projectors, video or
laser disc players, 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."
(2) ADULT BOOKSTORE, ADULT NOVELTY STORE
OR ADULT VIDEO STORE means a commercial establishment which, as one of its
principal purposes, offers for sale or rental for any form of consideration any
one or more of the following:
(a) books, magazines, periodicals or other
printed matter, or photographs, films, motion pictures, video cassettes or
video reproductions, slides, or other visual representations which are
characterized by the depiction or description of "specified sexual
activities" or "specified anatomical areas"; or
(b) instruments, devices, or paraphernalia
which are designed for use in connection with "specified sexual
activities."
A
commercial establishment may have other principal 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 ADULT BOOKSTORE, ADULT NOVELTY STORE,
or ADULT VIDEO STORE. Such other
business purposes will not serve to exempt such commercial establishments from
being categorized as an ADULT BOOKSTORE, ADULT NOVELTY STORE, or ADULT VIDEO
STORE so long as one of its principal business purposes is the offering for
sale or rental for consideration the specified materials which are
characterized by the depiction or description of "specified sexual
activities" or "specified anatomical areas."
(3) ADULT CABARET means a nightclub,
bar, restaurant, or similar commercial establishment which regularly features:
(a) persons who appear in a state of nudity
or semi-nude; or
(b) live performances which are
characterized by the exposure of "specified anatomical areas" or by
"specified sexual activities"; or
(c) films, motion pictures, video cassettes,
slides or other photographic reproductions which are characterized by the
depiction or description of "specified sexual activities" or
"specified anatomical areas."
(4) ADULT MOTEL means a hotel, motel
or similar commercial establishment which:
(a) offers accommodations to the public for
any form of consideration; provides patrons with closed-circuit television
transmissions, films, motion pictures, video cassettes, slides, or other
photographic reproductions which are characterized by the depiction or
description of "specified sexual activities" or "specified
anatomical areas"; and has a sign visible from the public right of way
which advertises the availability of this adult type of photographic
reproductions; or
(b) offers a sleeping room for rent for a
period of time that is less than ten (10) hours; or
(c) allows a tenant or occupant of a
sleeping room to subrent the room for a period of time that is less than ten
(10) hours.
(5) ADULT MOTION PICTURE THEATER
means a commercial establishment where, for any form of consideration, films,
motion pictures, video cassettes, slides, or similar photographic reproductions
are regularly shown which are characterized by the depiction or description of
"specified sexual activities" or "specified anatomical
areas."
(6) ADULT THEATER means a theater,
concert hall, auditorium, or similar commercial establishment which regularly
features persons who appear in a state of nudity or semi-nude, or live
performances which are characterized by the exposure of "specified
anatomical areas" or by "specified sexual activities."
(7) EMPLOYEE means a person who
performs any service on the premises of a sexually oriented business on a
full-time, part-time or contract basis, whether or not the person is
denominated an employee, independent contractor, agent or otherwise and whether
or not said person is paid a salary, wage or other compensation by the operator
of said business. Employee does not
include a person exclusively on the premises for repair or maintenance of the
premises or equipment on the premises, or for the delivery of goods to the
premises.
(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.
(9) ESCORT AGENCY means a person or
business association who furnishes, offers to furnish, or advertises to furnish
escorts as one of its primary business purposes for a fee, tip, or other
consideration.
(10) ESTABLISHMENT means and includes
any of the following:
(a) the opening or commencement of any
sexually oriented business as a new business;
(b) the conversion of an existing business,
whether or not a sexually oriented business, to any sexually oriented business;
(c) the additions of any sexually oriented
business to any other existing sexually oriented business; or
(d) the relocation of any sexually oriented
business.
(11) LICENSEE means a person in whose
name a license to operate a sexually oriented business has been issued, as well
as the individual listed as an applicant on the application for a license; and
in the case of an employee, a person in whose name a license has been issued
authorizing employment in a sexually oriented business.
(12) NUDE MODEL STUDIO means any place
where a person who appears semi-nude, in a state of nudity, or who displays
"specified anatomical areas"
and is provided to be observed, sketched, drawn, painted, sculptured,
photographed, or similarly depicted by other persons who pay money or any form
of consideration. Nude Model Studio
shall not include a proprietary school licensed by the State of or a college, junior college or university
supported entirely or in part by public taxation; 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 in a structure:
(a) that has no sign visible from the
exterior of the structure and no other advertising that indicates a nude or
semi-nude person is available for viewing; and
(b) where in order to participate in a class
a student must enroll at least three days in advance of the class; and
(c) where no more than one nude or semi-nude
model is on the premises at any one time.
(13) 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, the
showing of the female breast with less than a fully opaque covering of any part
of the nipple, or the showing of the covered male genitals in a discernibly
turgid state.
(14) PERSON means an individual,
proprietorship, partnership, corporation, association, or other legal entity.
(15) SEMI-NUDE or in a SEMI-NUDE
CONDITION means the showing of the female breast below a horizontal line
across the top of the areola at its highest point or the showing of the male or
female buttocks. This definition shall
include the entire lower portion of the human female breast, but shall not include
any portion of the cleavage of the human female breast, exhibited by a dress,
blouse, skirt, leotard, bathing suit, or other wearing apparel provided the
areola is not exposed in whole or in part.
(16) SEXUAL ENCOUNTER CENTER means a
business or commercial enterprise that, as one of its principal business
purposes, offers for any form of consideration:
(a) physical contact in the form of
wrestling or tumbling between persons of the opposite sex; or
(b) activities between male and female
persons and/or persons of the same sex when one or more of the persons is in a
state of nudity or semi-nude.
(17) SEXUALLY ORIENTED BUSINESS means an
adult arcade, adult bookstore, adult novelty store, adult video store, adult
cabaret, adult motel, adult motion picture theater, adult theater, escort
agency, nude model studio, or sexual encounter center.
(18) SPECIFIED ANATOMICAL AREAS means:
(a) the human male genitals in a discernibly
turgid state, even if completely and opaquely covered; or
(b) less than completely and opaquely
covered human genitals, pubic region, buttocks or a female breast below a point
immediately above the top of the areola.
(19) SPECIFIED CRIMINAL ACTIVITY means
any of the following offenses:
(a) prostitution or promotion of
prostitution; dissemination of obscenity; sale, distribution or display of
harmful material to a minor; sexual performance by a child; possession or
distribution of child pornography; public lewdness; indecent exposure;
indecency with a child; engaging in organized criminal activity; sexual
assault; molestation of a child; gambling; or distribution of a controlled
substance; or any similar offenses to those described above under the criminal
or penal code of other states or countries;
(b) for which:
(1) less than two years have elapsed since
the date of conviction or the date of release from confinement imposed for the
conviction, whichever is the later date, if the conviction is of a misdemeanor
offense;
(2) less than five years have elapsed since
the date of conviction or the date of release from confinement for the
conviction, whichever is the later date, if the conviction is of a felony
offense; or
(3) less than five years have elapsed since
the date of the last conviction or the date of release from confinement for the
last conviction, whichever is the later date, if the convictions are of two or
more misdemeanor offenses or combination of misdemeanor offenses occurring
within any 24-month period.
(c) The fact that a conviction is being
appealed shall have no effect on the disqualification of the applicant or a
person residing with the applicant.
(20) 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, normal or perverted, actual or
simulated, including intercourse, oral copulation, masturbation, or sodomy; or
(c) excretory functions as part of or in
connection with any of the activities set forth in (a) through (b) above.
(21) SUBSTANTIAL ENLARGEMENT of a
sexually oriented business means the increase in floor areas occupied by the
business by more than twenty-five percent (25%), as the floor areas exist on
the date this ordinance takes effect.
(22) TRANSFER OF OWNERSHIP OR CONTROL of
a sexually oriented business means and includes any of the following:
(a) the sale, lease, or sublease of the
business;
(b) the transfer of securities which
constitute a controlling interest in the business, whether by sale, exchange,
or similar means; or
(c) the establishment of a trust, gift, or
other similar legal device which transfers the ownership or control of the
business, except for transfer by bequest or other operation of law upon the death
of the person possessing the ownership or control.
SECTION III.
CLASSIFICATION.
Sexually
oriented businesses are classified as follows:
(1) adult arcades;
(2) adult bookstores, adult novelty stores,
or adult video stores;
(3) adult cabarets;
(4) adult motels;
(5) adult motion picture theaters;
(6) adult theaters;
(7) escort agencies;
(8) nude model studios; and
(9) sexual encounter centers.
SECTION IV. LICENSE
REQUIRED.
(A) It is unlawful:
(1). For any person to operate a sexually
oriented business without a valid sexually oriented business license issued by
the City pursuant to this ordinance.
(2). For any person who operates a sexually
oriented business to employ a person to work for the sexually oriented business
who is not licensed as a sexually oriented business employee by the City
pursuant to this ordinance.
(3). For any person to obtain employment with
a sexually oriented business without having secured a sexually oriented
business employee license pursuant to this ordinance.
(B) An application for a license must be made
on a form provided by the City.
(C) All applicants must be qualified
according to the provisions of this ordinance.
The application may request and the applicant shall provide such
information (including fingerprints) as to enable the City to determine whether
the applicant meets the qualifications established in this ordinance.
(D)
A person, who wishes to operate a sexually oriented business, must sign
the application for a license as an applicant. If a person other than an
individual wishes to operate a sexually oriented business, all persons legally
responsible for the operations of the sexually oriented business or who have
power to control or direct its operations must sign the application for a
license as applicant. Such persons include, but are not limited to, general
partners, corporate officers, corporate directors, and controlling
shareholder(s). Each application must be qualified under the following section
and each applicant shall be considered a licensee if a license is granted.
(E) The completed application for a sexually
oriented business license shall contain the following information and shall be
accompanied by the following documents:
(1) If the applicant is:
(a) an individual, the individual shall
state his/her legal name and any aliases and submit proof that he/she is 18
years of age;
(b) a partnership, the partnership shall
state its complete name, and the names of all partners, whether the partnership
is general or limited, and a copy of the partnership agreement, if any;
(c) a corporation, the corporation shall
state its complete name, the date of its incorporation, evidence that the
corporation is in good standing under the laws of its state of incorporation,
the names and capacity of all officers, directors and controlling stockholders,
and the name of the registered corporate agent and the address of the
registered office for service of process.
(2) If the applicant intends to operate the
sexually oriented business under a name other than that of the applicant; he or
she must state 1) the sexually oriented business's fictitious name and 2)
submit the required registration documents.
(3) Whether the applicant, or a person
residing with the applicant, has been convicted of a specified criminal
activity as defined in this ordinance, and, if so, the specified criminal
activity involved, the date, place, and jurisdiction of each.
(4) Whether the applicant, or a person
residing with the applicant, has had a previous license under this ordinance or
other similar sexually oriented business ordinances from another city or county
denied, suspended or revoked, including the name and location of the sexually
oriented business for which the permit was denied, suspended or revoked, as
well as the date of the denial, suspension or revocation, and whether the
applicant or a person residing with the applicant has been a partner in a
partnership or an officer, director or principal stockholder of a corporation
that is licensed under this ordinance whose license has previously been denied,
suspended or revoked, including the name and location of the sexually oriented
business for which the permit was denied, suspended or revoked as well as the
date of denial, suspension or revocation.
(5) Whether the applicant or a person
residing with the applicant holds any other licenses under this ordinance or
other similar sexually oriented business ordinance from another city or county
and, if so, the names and locations of such other licensed businesses.
(6) The single classification of license for
which the applicant is filing.
(7) The location of the proposed sexually
oriented business, including a legal description of the property, street
address, and telephone number(s), if any.
(8) The applicant's mailing address and
residential address.
(9) A recent photograph of the applicant(s).
(10) The applicant's driver's license number,
(11) A sketch or diagram showing the
configuration of the premises, including a statement of total floor space
occupied by the business. The sketch or
diagram need not be professionally prepared, but it must be drawn to a
designated scale or drawn with marked dimensions of the interior of the premises
to an accuracy of plus or minus six (6) inches.
(12) A current certificate and straight-line
drawing prepared within thirty (30) days prior to application by a registered
land surveyor depicting the property lines and the structures containing any
existing sexually oriented businesses within
feet of the property to be certified; the
property lines of any established religious institution/synagogue, school, or
public park or recreation area within feet of the property to be certified. For purposes of this Section, a use shall be
considered existing or established if it is in existence at the time an
application is submitted.
(13) If an applicant wishes to operate a
sexually oriented business, other than an adult motel, which shall exhibit on
the premises, in a viewing room or booth of less than one hundred fifty (150)
square feet of floor space, films, video cassettes, other video reproductions,
or live entertainment which depict specified sexual activities or specified
anatomical areas, then the applicant shall comply with the application
requirements set forth in Section XIV.
(F) Before
any applicant may be issued a sexually oriented business employee license, the
applicant shall submit on a form to be provided by the City the following
information:
(1) The applicant's name or any other name
(including "stage" names) or aliases used by the individual;
(2) Age, date, and place of birth;
(3) Height, weight, hair and eye color;
(4) Present residence address and telephone
number;
(5) Present business address and telephone
number;
(6) Date, issuing state and number of
driver's permit or other identification card information; and
(7) Proof that the individual is at least
eighteen (18) years of age.
(G) Attached to the application form for a
sexually oriented business employee license as provided above, shall be the
following:
(1) A color photograph of the applicant
clearly showing the applicant's face, and the applicant's fingerprints on a
form provided by the police department.
Any fees for the photographs and fingerprints shall be paid by the
applicant.
(2) A statement detailing the license
history of the applicant for the five (5) years immediately preceding the date
of the filing of the application, including whether such applicant previously
operated or is seeking to operate, in this or any other county, city, state, or
country has ever had a license, permit, or authorization to do business denied,
revoked, or suspended, or had any professional or vocational license or permit
denied, revoked, or suspended. In the
event of any such denial, revocation, or suspension, state the name, the name
of the issuing or denying jurisdiction, and describe in full the reason for the
denial, revocation, or suspension. A
copy of any order of denial, revocation, or suspension shall be attached to the
application.
(3) A statement whether the applicant has
been convicted of a specified criminal activity as defined in this ordinance
and, if so, the specified criminal activity involved, the date, place and
jurisdiction of each.
SECTION V. ISSUANCE
OF LICENSE.
(A) Upon the filing of said application for a
sexually oriented business employee license, the city shall issue a temporary
license to said applicant. The
application shall then be referred to the appropriate city departments for an
investigation to be made on such information as is contained on the
application. The application process
shall be completed within thirty (30) days from the date the completed
application is filed. After the investigation,
the City shall issue a license, unless it is determined by a preponderance of
the evidence that one or more of the following findings is true:
(1) The applicant has failed to provide
information reasonable necessary for issuance of the license or has falsely
answered a question or request for information on the application form;
(2) The applicant is under the age of
eighteen (18) years;
(3) The applicant has been convicted of a
"specified criminal activity" as defined in this ordinance;
(4) The sexually oriented business employee
license is to be used for employment in a business prohibited by local or state
law, statute, rule or regulation, or prohibited by a particular provision of
this ordinance; or
(5) The applicant has had a sexually
oriented business employee license revoked by the City within two (2) years of
the date of the current application. If
the sexually oriented business employee license is denied, the temporary
license previously issued is immediately deemed null and void.
Denial, suspension, or revocation of a license issued pursuant to this
subsection shall be subject to appeal as set forth in Section X.
(B) A license granted pursuant to this
section shall be subject to annual renewal upon the written application of the
applicant and a finding by the City that
the applicant has not been convicted of any specified criminal activity as
defined in this ordinance or committed any act during the existence of the
previous license, which would be grounds to deny the initial license
application. The renewal of the license
shall be subject to the payment of the fee as set forth in Section VI.
(C) Within 30 days after receipt of a
completed sexually oriented business application, the City shall approve or
deny the issuance of a license to an applicant.
The City shall approve the issuance of a license to an applicant unless
it is determined by a preponderance of the evidence that one or more of the
following findings is true:
(1) An applicant is under eighteen (18) years
of age.
(2) An applicant or a person with whom
applicant is residing is overdue in payment to the City of taxes, fees, fines,
or penalties assessed against or imposed upon him/her in relation to any
business.
(3) An applicant has failed to provide
information reasonably necessary for issuance of the license or has falsely
answered a question or request for information on the application form.
(4) An applicant or a person with whom the
applicant is residing has been denied a license by the City to operate a
sexually oriented business within the preceding twelve (12) months or whose
license to operate a sexually oriented business has been revoked within the
preceding twelve (12) months.
(5) An applicant or a person with whom the
applicant is residing has been convicted of a specified criminal activity
defined in this ordinance.
(6) The premises to be used for the sexually
oriented business have not been approved by the health department, fire
department, and the building official as being in compliance with applicable
laws and ordinances.
(7) The license fee required by this
ordinance has not been paid.
(8) An applicant of the proposed establishment is in violation of or is not in
compliance with any of the provisions of this ordinance.
(D) The license,
if granted shall state on its face the name of the person or persons to whom it
is granted, the expiration date, the address of the sexually oriented business
and the classification for which the license is issued pursuant to Section III. All licenses shall be posted in a conspicuous
place at or near the entrance to the sexually oriented business so that they
may be easily read at any time.
(E) The health
department, fire department, and the building official shall complete their
certification that the premises is in compliance or not in compliance within
twenty (20) days of receipt of the application by the City.
(F) A sexually
oriented business license shall issue for only one classification as found in
Section III.
SECTION VI. FEES.
(A) Every
application for a sexually oriented business license (whether for a new license
or for renewal of an existing license) shall be accompanied by a $ non-refundable application and investigation
fee.
(B) In addition
to the application and investigation fee required above, every sexually
oriented business that is granted a license (new or renewal) shall pay to the
City an annual non-refundable license fee of $ within thirty (30) days of license issuance or
renewal.
(C) Every
application for a sexually oriented business employee license (whether for a
new license or for renewal of an existing license) shall be accompanied by an
annual $ _____non-refundable application, investigation, and license fee.
(D) All license
applications and fees shall be submitted to the________________of the City.
SECTION VII.
INSPECTION.
(A) An applicant
or licensee shall permit representatives of the Police Department, Health
Department, Fire Department, Zoning Department, or other City departments or
agencies to inspect the premises of a sexually oriented business for the
purpose of insuring compliance with the law, at any time it is occupied or open
for business.
(B) A person who
operates a sexually oriented business or his agent or employee commits a
misdemeanor if he refuses to permit such lawful inspection of the premises at
any time it is open for business.
SECTION VIII.
EXPIRATION OF LICENSE.
(A) Each license
shall expire one year from the date of issuance and may be renewed only by making
application as provided in Section IV.
Application for renewal shall be made at least thirty (30) days before
the expiration date, and when made less than thirty (30) days before the
expiration date, the expiration of the license will not be affected.
(B) When the
City denies renewal of a license, the applicant shall not be issued a license
for one year from the date of denial.
If, subsequent to denial, the City
finds that the basis for denial of the renewal license has been
corrected or abated, the applicant may be granted a license if at least ninety
(90) days have elapsed since the date denial became final.
SECTION IX.
SUSPENSION.
(A) The City
shall suspend a license for a period not to exceed thirty (30) days if it
determines that a licensee or an employee of a licensee has:
(1) violated or
is not in compliance with any section of this ordinance;
(2) refused to
allow an inspection of the sexually oriented business premises as authorized by
this chapter.
SECTION X.
REVOCATION.
(A) The City
shall revoke a license if a cause of suspension in Section IX occurs and the
license has been suspended within the preceding twelve (12) months.
(B) The City
shall revoke a license if it determines that:
(1) a licensee
gave false or misleading information in the material submitted during the
application process;
(2) a licensee has knowingly allowed
possession, use, or sale of controlled substances on the premises;
(3) a licensee has knowingly allowed
prostitution on the premises;
(4) a licensee knowingly operated the sexually
oriented business during a period of time when the licensee's license was
suspended;
(5) except in the case of an adult motel, a
licensee has knowingly allowed any act of sexual intercourse, sodomy, oral
copulation, masturbation, or other sex act to occur in or on the licensed
premises; or
(6) a licensee is delinquent in payment to the
City, County, or State for any taxes or fees past due.
(C) When the
City revokes a license, the revocation shall continue for one (1) year, and the
licensee shall not be issued a sexually oriented business license for one (1)
year from the date the revocation became effective. If, subsequent to revocation, the City finds
that the basis for the revocation has been corrected or abated, the applicant
may be granted a license if at least ninety (90) days have elapsed since the
date the revocation became effective.
(D) After denial
of an application, or denial of a renewal of an application, or suspension or
revocation of any license, the applicant or licensee may seek prompt judicial
review of such administrative action in any court of competent
jurisdiction. The administrative action
shall be promptly reviewed by the court.
SECTION XI. TRANSFER
OF LICENSE.
A licensee shall not transfer his/her license to another,
nor shall a licensee operate a sexually oriented business under the authority
of a license at any place other than the address designated in the application.
SECTION XII.
LOCATION OF SEXUALLY ORIENTED BUSINESSES.
(A) A person commits a misdemeanor if that
person operates or causes to be operated a sexually oriented business in any
zoning district other than ____________, as defined and described in the
_______________zoning code.
(B) A person
commits an offense if the person operates or causes to be operated a sexually
oriented business within feet of:
(1) A church,
synagogue, mosque, temple or building which is used primarily for religious
worship and related religious activities;
(2) A public or
private educational facility including but not limited to child day care
facilities, nursery schools, preschools, kindergartens, elementary schools,
private schools, intermediate schools, junior high schools, middle schools,
high schools, vocational schools, secondary schools, continuation schools,
special education schools, junior colleges, and universities; school includes
the school grounds, but does not include facilities used primarily for another
purpose and only incidentally as a school;
(3) A boundary
of a residential district as defined in the zoning code;
(4) A public
park or recreational area which has been designated for park or recreational
activities including but not limited to a park, playground, nature trails,
swimming pool, reservoir, athletic field, basketball or tennis courts,
pedestrian/bicycle paths, wilderness areas, or other similar public land within
the city which is under the control, operation, or management of the city park
and recreation authorities;
(5) The property line of a lot devoted to a residential use as defined in the
zoning code;
(6) An
entertainment business which is oriented primarily towards children or family
entertainment; or
(7) A licensed
premises, licensed pursuant to the alcoholic beverage control regulations of
the State.
(C) A person
commits a misdemeanor if that person causes or permits the operation,
establishment, substantial enlargement, or transfer of ownership or control of
a sexually oriented business within feet of another sexually oriented
business.
(D) A person
commits a misdemeanor if that person causes or permits the operation,
establishment, or maintenance of more than one sexually oriented business in
the same building, structure, or portion thereof, or the increase of floor area
of any sexually oriented business in any building, structure, or portion
thereof containing another sexually oriented business.
(E) For the
purpose of subsection B of this Section, measurement shall be made in a
straight line, without regard to the intervening structures or objects, from
the nearest portion of the building or structure used as the part of the
premises where a sexually oriented business is conducted, to the nearest
property line of the premises of a use listed in subsection B. Presence of a city, county or other political
subdivision boundary shall be irrelevant for purposes of calculating and
applying the distance requirements of this Section.
(F) For purposes
of subsection C of this Section, the distance between any two sexually oriented
businesses shall be measured in a straight line, without regard to the
intervening structures or objects or political boundaries, from the closest
exterior wall of the structure in which each business is located.
(G) Any sexually
oriented business lawfully operating on , 20 , that is in violation of subsection A
through F of this Section shall be deemed a nonconforming use. The nonconforming use will be permitted to
continue for a period not to exceed one year, unless sooner terminated for any
reason or voluntarily discontinued for a period of thirty (30) days or
more. Such nonconforming uses shall not
be increased, enlarged, extended, or altered except that the use may be changed
to a conforming use. If two or more
sexually oriented businesses are within feet of one another and otherwise in a
permissible location, the sexually oriented business which was first
established and continually operating at a particular location is the
conforming use and the later established business(es) is/are
nonconforming.
(H) A sexually
oriented business lawfully operating as a conforming use is not rendered a
nonconforming use by the location, subsequent to the grant or renewal of the
sexually oriented business license, of a use listed in subsection B of this
Section within feet of the sexually oriented business. This provision applies only to the renewal of
a valid license, and does not apply when an application for a license is
submitted after a license has expired or been revoked.
SECTION XIII.
ADDITIONAL REGULATIONS FOR ADULT MOTELS.
(A) Evidence
that a sleeping room in a hotel, motel, or a similar commercial establishments
has been rented and vacated two or more times in a period of time that is less
than ten (10) hours creates a rebuttable presumption that the establishment is
an adult motel as that term is defined in this ordinance.
(B) A person
commits a misdemeanor if, as the person in control of a sleeping room in a
hotel, motel, or similar commercial establishment that does not have a sexually
oriented license, he rents or subrents a sleeping room to a person and, within
ten (10) hours from the time the room is rented, he rents or subrents the same
sleeping room again.
(C) For purposes
of subsection (B) of this section, the terms "rent" or
"subrent" mean the act of permitting a room to be occupied for any
form of consideration.
SECTION XIV. REGULATIONS
PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS, VIDEOS OR LIVE
ENTERTAINMENT IN VIEWING ROOMS.
(A) A person who
operates or causes to be operated a sexually oriented business, other than an
adult motel, which exhibits on the premises in a viewing room of less than one
hundred fifty (150) square feet of floor space, a film, video cassette, live
entertainment, or other video reproduction which depicts specified sexual
activities or specified anatomical areas, shall comply with the following
requirements:
(1) Upon
application for a sexually oriented license, the application shall be accompanied
by a diagram of the premises showing a plan thereof specifying the location of
one or more manager's stations and the location of all overhead lighting
fixtures and designating any portion of the premises in which patrons will not
be permitted. A manager's station may
not exceed thirty-two (32) square feet of floor area. The diagram shall also designate the place at
which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the
nature of an engineer's or architect's blueprint shall not be required;
however, each diagram should be oriented to the north or to some designated
street or object and should be drawn to a designated scale or with marked
dimensions sufficient to show the various internal dimensions of all areas of
the interior of the premises to an accuracy of plus or minus six (6")
inches. The City may waive the foregoing
diagram for renewal applications if the applicant adopts a diagram that was
previously submitted and certifies that the configuration of the premises has
not been altered since it was prepared.
(2) The
application shall be sworn to be true and correct by the applicant.
(3) No
alteration in the configuration or location of a manager's station may be made
without the prior approval of the City.
(4) It is the
duty of the licensee of the premises to ensure that at least one licensed
employee is on duty and situated in each manager's station at all times that
any patron is present inside the premises.
(5) The
interior of the premises shall be configured in such a manner that there is an
unobstructed view from a manager's station of every area of the premises to
which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction
equipment. If the premises has two or
more manager's stations designated, then the interior of the premises shall be
configured in such a manner that there is an unobstructed view of each area of
the premises to which any patron is permitted access for any purpose from at
least one of the manager's stations. The
view required in this subsection must be by direct line of sight from the
manager's station.
(6) It shall be
the duty of the licensee to ensure that the view area specified in subsection
(5) remains unobstructed by any doors, curtains, partitions, walls,
merchandise, display racks or other materials and, at all times, to ensure that
no patron is permitted access to any area of the premises which has been
designated as an area in which patrons will not be permitted in the application
filed pursuant to subsection (1) of this Section.
(7) No viewing
room may be occupied by more than one person at any time.
(8) The
premises shall be equipped with overhead lighting fixtures of sufficient
intensity to illuminate every place to which patrons are permitted access at an
illumination of not less than five (5.0) foot-candles as measured at the floor
level.
(9) It shall be
the duty of the licensee to ensure that the illumination described above is
maintained at all times that any patron is present in the premises.
(10) No licensee
shall allow openings of any kind to exist between viewing rooms or booths.
(11) No person
shall make or attempt to make an opening of any kind between viewing booths or
rooms.
(12) The licensee
shall, during each business day, regularly inspect the walls between the
viewing booths to determine if any openings or holes exist.
(13) The licensee
shall cause all floor coverings in viewing booths to be nonporous, easily
cleanable surfaces, with no rugs or carpeting.
(14) The licensee
shall cause all wall surfaces and ceiling surfaces in viewing booths to be
constructed of, or permanently covered by, nonporous, easily cleanable
material. No wood, plywood, composition
board or other porous material shall be used within forty eight (48")
inches of the floor.
(B) A person
having a duty under Subsection (1) through (14) of Subsection (A) above commits
a misdemeanor if he knowingly fails to fulfill that duty.
SECTION XV.
ADDITIONAL REGULATIONS FOR ESCORT AGENCIES.
(A) An escort
agency shall not employ any person under the age of 18 years.
(B) A person
commits an offense if the person acts as an escort or agrees to act as an
escort for any person under the age of 18 years.
SECTION XVI.
ADDITIONAL REGULATIONS FOR NUDE MODEL STUDIOS.
(A) A nude model
studio shall not employ any person under the age of 18 years.
(B) A person
under the age of 18 years commits an offense if the person appears semi-nude or
in a state of nudity in or on the premises of a nude model studio. It is a defense to prosecution under this
subsection if the person under 18 years was in a restroom not open to public
view or visible to any other person.
(C) A person
commits an offense if the person appears in a state of nudity, or knowingly
allows another to appear in a state of nudity in an area of a nude model studio
premises which can be viewed from the public right of way.
(D) A nude model
studio shall not place or permit a bed, sofa, or mattress in any room on the
premises, except that a sofa may be placed in a reception room open to the
public.
SECTION XVII.
ADDITIONAL REGULATIONS CONCERNING PUBLIC NUDITY.
(A) It shall be
a misdemeanor for a person who knowingly and intentionally, in a sexually
oriented business, appears in a state of nudity or depicts specified sexual
activities.
(B) It shall be
a misdemeanor for a person who knowingly or intentionally in a sexually
oriented business appears in a semi-nude condition unless the person is an
employee who, while semi-nude, shall be at least ten (10) feet from any patron
or customer and on a stage at least two feet from the floor.
(C) It shall be
a misdemeanor for an employee, while semi-nude in a sexually oriented business,
to solicit any pay or gratuity from any patron or customer or for any patron or
customer to pay or give any gratuity to any employee, while said employee is
semi-nude in a sexually oriented business.
(D) It shall be
a misdemeanor for an employee, while semi-nude, to touch a customer or the
clothing of a customer.
SECTION XVIII. PROHIBITION
AGAINST CHILDREN IN A SEXUALLY ORIENTED BUSINESS.
A person
commits a misdemeanor if the person knowingly allows a person under the age of
18 years on the premises of a sexually oriented business.
SECTION XIX. HOURS OF
OPERATION.
No sexually oriented business, except for an adult motel,
may remain open at any time between the hours of
SECTION XX.
EXEMPTIONS.
(A) It is a
defense to prosecution under Section XVII that a person appearing in a state of
nudity did so in a modeling class operated:
(1) by a
proprietary school, licensed by the State of ; a college, junior college, or university
supported entirely or partly by taxation;
(2) 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
(3) in a
structure:
(a) which has
no sign visible from the exterior of the structure and no other advertising
that indicates a nude person is available for viewing; and
(b) where, in
order to participate in a class a student must enroll at least three (3) days
in advance of the class; and
(c) where no
more than one nude model is on the premises at any one time.
SECTION XXI.
INJUNCTION.
A person
who operates or causes to be operated a sexually oriented business without a
valid license or in violation of Section XII of this ordinance is subject to a
suit for injunction as well as prosecution for criminal violations. Such violations shall be punishable by a fine
of $200.00 or thirty (30) days imprisonment.
Each day a sexually oriented business so operates is a separate offense
or violation.
SECTION XXII.
SEVERABILITY.
If any
section, subsection, or clause of this ordinance shall be deemed to be
unconstitutional or otherwise invalid, the validity of the remaining sections,
subsections, and clauses shall not be affected.
SECTION XXIII.
CONFLICTING ORDINANCES REPEALED.
All ordinances or parts of ordinances in conflict with the
provisions of this ordinance are hereby repealed.
SECTION XXIV.
EFFECTIVE DATE.
This ordinance shall be enforced from and after , 20__.