Borough of Seaside Heights, NJ
Ocean County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Borough Council of the Borough of Seaside Heights 2-19-1997 by Ord. No. 97-1. Amendments noted where applicable.]
GENERAL REFERENCES
Nude dancing — See Ch. 17, Art. VIII.
Consumption of alcoholic beverages by minors — See Ch. 17, Art. II.
Identification of employees — See Ch. 17, Art. IV.
Entertainment establishments — See Ch. 86.
Display of obscene material — See Ch. 137

§ 8-1 Purpose.

The Mayor and Council of the Borough of Seaside Heights recognize the rights inherent in the United States Constitution which guarantee freedom of expression, as well as the position of the courts in protecting that freedom by invalidating any attempt by local ordinance to restrict particular uses based upon their content. However, the Mayor and Council also recognize their duty to protect the health, safety, welfare and morals of the residents and the citizens of Seaside Heights and to establish reasonable and uniform regulations providing for the licensing of adult-oriented establishments, including, but not limited to, adult bookstores, adult minimotion-picture establishments, adult motion-picture theaters and adult cabarets. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually-oriented materials. Additionally, it is neither the intent nor effect of this chapter 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.

§ 8-2 Findings.

A. 
It has been demonstrated that the establishment of adult businesses in business districts which are immediately adjacent to and which serve residential neighborhoods has a deleterious effect on both the business and residential segments of the neighborhood, causing blight and a downgrading of property values. It has also been demonstrated that there is a statistically significant correlation between sex-oriented and alcohol-oriented adult entertainment businesses and high crime rates. The Borough Council is particularly persuaded and impressed by studies conducted in Minneapolis, St. Paul, Indianapolis, Phoenix and Los Angeles.
B. 
The Borough Council further deems it necessary to provide for licensing and regulations of adult-oriented businesses in light of the existing problems experienced by the residents and citizens within the Borough of Seaside Heights. More specifically, recent statistics compiled through the Uniform Crime Reporting System list Seaside Heights as having the fourth highest crime rate in the State of New Jersey for the year 1993. Particularly, Seaside Heights has experienced a noticeable increase in sex-related offenses.
C. 
The Borough Council further determines that it is well known that adult-oriented businesses have been and are being used by patrons of said establishments for engaging in sexual acts, including, but not limited to, intercourse, sodomy, oral copulation and masturbation, resulting in unsafe and unsanitary conditions. It is particularly well known that such conduct occurs in adult-oriented establishments which install booths with doors in which patrons can view adult-oriented movies or videotape or film or view other forms of adult entertainment.
D. 
The prevalence of such conduct by patrons of adult businesses is especially disconcerting when viewed in relation to the ever-increasing number of reported cases of Acquired Immune Deficiency Syndrome (AIDS). AIDS is a sexually-transmitted disease which destroys the body's immune system, is always fatal and has no known cure. The viral agents responsible for AIDS and other sexually-transmitted diseases have all been isolated at one time or another from semen.

§ 8-3 Definitions.

For the purpose of this chapter, the following words and phrases shall mean:
ADULT BOOKSTORE
An establishment having as a substantial or significant portion of its stock-in-trade, for sale, rent, lease, inspection or viewing, books, films, video cassettes, compact disks, magazines or other periodicals which are distinguished or characterized by their emphasis on matters depicting, describing or relating to specified sexual activities, sexual conduct or specified anatomical areas, as defined below, and in conjunction therewith, having facilities for the presentation of adult entertainment, as defined below, including adult-oriented films, movies or live performances, for observation.
ADULT CABARET
A nightclub, bar, restaurant or other commercial establishment, whether or not same is licensed to sell alcoholic beverages for on premises-consumption, which regularly features:
A. 
Persons who appear in a state of nudity; or
B. 
Live performances which are characterized by the exposure of specified anatomical areas or by sexual conduct or by specified sexual activities; or
C. 
Films, motion pictures, video cassettes, compact disks, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities, sexual conduct or specified anatomical areas.
ADULT ENTERTAINMENT
Any exhibition of any motion-picture, live performance, display or dance of any type which has as its dominant theme, or is distinguished or characterized by an emphasis on, any actual or simulated specified sexual activities, sexual conduct or specified anatomical areas, as defined below, or the removal of articles of clothing or appearing partially or totally nude. Adult entertainment is distinguished from conventional entertainment by the fact that access by minors to such entertainment is excluded by virtue of age under the pornography statutes of the State of New Jersey.
ADULT MINIMOTION-PICTURE THEATER
An enclosed building with a capacity of less than 50 persons used for presenting material having as its dominant theme, or distinguished or characterized by an emphasis on, matters depicting, describing or relating to specified sexual activities, sexual conduct or specified anatomical areas, as defined below, for observation by patrons therein.
ADULT MOTION-PICTURE THEATER
An enclosed building with a capacity of 50 or more persons used for presenting material having as its dominant theme, or distinguished or characterized by an emphasis on, matters depicting, describing or relating to specified sexual activities, sexual conduct or specified anatomical areas, as defined below, for observation by patrons therein.
ADULT-ORIENTED ESTABLISHMENT
Include, but is not limited to, adult bookstores, adult motion-picture theaters, adult minimotion-picture theaters or adult cabarets, and further means any premises to which public patrons or members are invited or admitted and which are physically arranged so as to provide booths, cubicles, rooms, compartments or stalls separate from the common areas of the premises for the purpose of viewing adult-oriented material, or wherein an entertainer provides adult entertainment to a member of the public, a patron or a member, whether or not such adult entertainment is held, conducted, operated or maintained for a profit, direct or indirect.
COUNCIL
The Borough Council of the Borough of Seaside Heights, New Jersey.
NUDITY or STATE OF NUDITY
The appearance, showing or exhibition of the male or female genitals or vulva, pubic area, buttocks, anus, anal cleft or cleavage or female breast below the top of the nipple.
OPERATOR
Any person, partnership or corporation operating, conducting, maintaining or owning any adult-oriented establishment.
PERSON
An individual, proprietorship, partnership, corporation, association or other legal entity.
SEMINUDE
A state of dress in which clothing or other devices or covering covers no more than the genitals, pubic region or nipples of the female breast, as well as portions of the body covered by supporting straps or devices.
SEXUAL CONDUCT
Human masturbation, sexual intercourse or any touching of the genitals, pubic areas or buttocks of the human male or female or the breasts of the human female whether alone or between members of the same or opposite sex or an act of apparent sexual stimulation or gratification.
A. 
Less than completely and opaquely covered human genitals, pubic region, buttocks or female breasts below the point immediately above the nipple; or
B. 
Human male genitals in a discernibly turgid state, even if opaquely or completely covered.
SPECIFIED SEXUAL ACTIVITIES
The simulated or actual:
A. 
Showing of human genitals in a state of sexual stimulation or arousal; or
B. 
Acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio or cunnilingus; or
C. 
Fondling or erotic touching of the human genitals, pubic regions, buttocks or female breasts.

§ 8-4 License required.

A. 
Except as provided in Subsection D below, from and after the effective date of this chapter, no adult-oriented establishment shall be operated or maintained in the Borough of Seaside Heights without first obtaining a license to operate issued by the Borough of Seaside Heights.
B. 
A license may be issued only for one adult-oriented establishment located at a fixed and certain place. Any person, partnership or corporation which desires to operate more than one adult-oriented establishment must have a license for each.
C. 
No license or interest in the license may be transferred to any person, partnership or corporation.
D. 
All adult-oriented establishments existing at the time of the passage of this chapter must submit an application for a license within 90 days of the passage of this chapter. If an application is not received within said ninety-day period, then such existing adult-oriented establishment shall cease operations.
E. 
An application for a license must be made on a form provided by the Borough Clerk. The application must be accompanied by 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 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 inches.
F. 
The applicant must be qualified according to the provision of this chapter, and the premises must be inspected and found to be in compliance with the law by the Health Department, Zoning Department, Fire Inspector and Building Official. The result of said inspections must be made available to the applicant no later than 30 days from the date of application for the license.
G. 
The applicant for a license shall include upon the form provided by the Borough Clerk the following information under oath:
(1) 
Name and address, including all aliases.
(2) 
Written proof that the applicant is at least 18 years of age.
(3) 
Whether the applicant has ever had an adult-oriented establishment license revoked or suspended, the reason therefor and the business entity or trade name under which the applicant operated that was subject to the suspension or revocation.
(4) 
Whether the applicant has been convicted of or pled guilty to a crime involving prostitution, promotion of prostitution, obscenity, sale, distribution or display of harmful material to minors, sexual performance by a child, possession of child pornography, indecency with a child, sexual assault, aggravated sexual assault, incest, solicitation of a child, public lewdness or indecent exposure, as provided and described in the New Jersey Criminal Code.
H. 
The fact that an applicant possesses a valid entertainment license pursuant to Chapter 86, Entertainment Establishments, of the Borough Code of the Borough of Seaside Heights does not exempt the applicant from the requirement of obtaining an adult business license as provided herein.

§ 8-5 Issuance of license.

A. 
The Borough Council shall approve the issuance of a license by the Borough Clerk to an applicant within 30 days after receipt of an application unless the Borough Council finds one or more of the following to be true:
(1) 
An applicant is under 18 years of age or is under a legal disability.
(2) 
The applicant or an applicant's spouse is overdue in the payment to the borough of taxes, fees, fines or penalties assessed against or imposed upon him in relation to a sexually-oriented business.
(3) 
An applicant has falsely answered a question or request for information on the application form.
(4) 
An applicant or an applicant's spouse has been convicted of a violation of a provision of this chapter, other than the offense of operating an adult-oriented establishment without a license, within five years immediately preceding this application. The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or applicant's spouse.
(5) 
An applicant is residing with a person who has been denied a license by the borough to operate an adult-oriented establishment within the preceding 12 months or residing with a person whose license to operate an adult-oriented establishment has been revoked within the preceding 12 months.
(6) 
The premises to be used for the adult-oriented business has been denied by the Health Department, Zoning Department, Fire Official or the Building Official as not being in compliance with applicable laws and ordinances, provided that the applicant was provided the results of said inspections no later than 30 days from the date of application for the license.
(7) 
The license fee required herein has not been paid.
(8) 
An applicant or an applicant's spouse has been convicted of a crime or misdemeanor involving prostitution; promotion of prostitution; obscenity; sale, distribution or display of harmful material to minors; sexual performance by a child; possession of child pornography; indecency with a child; sexual assault; aggravated sexual assault; incest; solicitation of a child; public lewdness or indecent exposure, as provided and described in the New Jersey Criminal Code.[1] The fact that the conviction is being appealed shall have no effect on the disqualification of the applicant or the applicant's spouse.
[1]
Editor's Note: See N.J.S.A. 2C:14-1 et seq., Sexual Offenses, and N.J.S.A. 2C:34-1 et seq, Public Indecency.
B. 
The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date and the address of the adult-oriented establishment. The license shall be posted in a conspicuous place at or near the entrance to the adult-oriented establishment so that it may be easily read at any time.

§ 8-6 Fees.

A. 
The annual fee for an adult-oriented establishment license shall be $1,000. The fee shall accompany the application for the license.
B. 
Every license issued pursuant to this chapter shall terminate at the expiration of one year from the date of issuance, unless sooner revoked, and must be renewed before operation is allowed in the following year. Any operator desiring to renew a license shall make application to the Borough Clerk upon a form provided by said Clerk and shall provide such information and data, given under oath or affirmation, as is required for an application for a new license.
C. 
A license renewal fee of $1,000 shall be submitted with the application for renewal.

§ 8-7 Inspections.

A. 
An applicant or licensee shall permit representatives of the Police Department, Health Department, Fire Inspection Department, Housing Department, Building Department, Code Enforcement Department and the governing body to inspect the premises of an adult-oriented establishment, for the purpose of ensuring compliance with the law, at any time it is occupied or open for business.
B. 
A person who operates an adult-oriented establishment or his agent or employee commits an offense if he or she refuses to permit a lawful inspection of the premises by any of the above representatives at any time it is occupied or open for business.

§ 8-8 License suspension.

The Borough Council shall suspend a license for a period not to exceed 30 days if it determines that a licensee or an employee of a licensee has violated the provisions of this chapter.

§ 8-9 License revocation.

A. 
The Borough Council shall revoke a license for any of the following reasons:
(1) 
A licensee provided false or misleading information on the initial or renewal application or material facts were omitted from said application during the application or renewal process.
(2) 
A licensee or an employee thereof has knowingly allowed possession, use or sale of controlled substances on the premises.
(3) 
A licensee or an employee thereof has knowingly allowed prostitution on the premises.
(4) 
A licensee or an employee thereof knowingly operated the adult-oriented establishment during a period of time when the licensee's license was suspended.
(5) 
Within the twelve-month license period, the licensee committed one or more of the offenses enumerated in § 8-5A(8) for which a conviction has been obtained.
(6) 
The licensee or an employee thereof has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or sexual contact to occur in or on the licensed premises.
(7) 
A licensee is delinquent in payment to the borough for taxes, fees, fines or penalties related to the adult-oriented establishment.
B. 
The operator or licensee whose license is revoked shall not be eligible to receive a license for one year from the date of revocation. No location or premises for which a license has been issued shall be used as an adult-oriented establishment for six months from the date of revocation of the license.

§ 8-10 Hearing.

A. 
If it is determined that a valid basis for suspending or revoking a license exists, then, before revoking or suspending the license, the Mayor and Council or its duly authorized representative shall cause a formal legal complaint to be served upon the licensee in question, and said final legal complaint shall clearly state the charges brought against said licensee. This formal legal complaint may be served by personal service, certified mail or regular mail in the event that personal service is refused. If the whereabouts of the licensee is unknown and the same cannot be ascertained by the exercise of reasonable diligence, the Borough Council, or its duly authorized representative, will make an affidavit to that effect and then serve such complaint by publishing same once each week for two consecutive weeks in a newspaper printed and published in the Borough of Seaside Heights or, in the absence of such newspaper, in a newspaper printed and published in Ocean County and circulating in the Borough of Seaside Heights.
B. 
The formal legal complaint shall further state the charges, and it shall contain a notice that a hearing shall be held before the Mayor and Council or its duly authorized representative at a place therein fixed not less than 10 days nor more than 30 days after the serving of said formal legal complaint, that the licensee and parties in interest shall be given the right to file an answer to the formal legal complaint and to appear in person or by their attorney and give testimony at the place and time fixed in the formal legal complaint and that the rules of evidence prevailing in the courts of law shall be controlling at the administrative hearing.

§ 8-11 Transfer of license.

A licensee shall not transfer his license to another, nor shall a licensee operate an adult-oriented establishment under the authority of a license at any place other than the address designated in the application.

§ 8-12 Physical layout of adult-oriented establishments.

Any adult-oriented establishment having available for customers, patrons or members any booth, room or cubicle for the private viewing of any adult entertainment must comply with the following requirements:
A. 
Access. Each booth, room or cubicle shall be totally accessible to and from aisles and public areas of the adult-oriented establishment and shall be unobstructed by any door, lock or other control-type devices.
B. 
Construction. Every booth, room or cubicle shall meet the following construction requirements:
(1) 
Each booth, room or cubicle shall be separated from adjacent booths, rooms and cubicles and any nonpublic areas by a wall.
(2) 
Have at least one side totally open to a public lighted aisle so that there is an unobstructed view at all times of anyone occupying same.
(3) 
All walls shall be solid and without any openings, extended from the floor to a height of not less than six feet and be light colored, nonabsorbent, smooth textured and easily cleanable.
(4) 
The floor must be light colored, nonabsorbent, smooth textured and easily cleanable.
(5) 
The lighting level of each booth, room or cubicle, when not in use, shall be a minimum of 10 footcandles at all times, as measured from the floor.
C. 
Occupants. Only one individual shall occupy a booth, room or cubicle at any time. No occupant of same shall engage in any type of sexual activity, cause any bodily discharge or litter while in the booth. No individual shall damage or deface any portion of the booth.

§ 8-13 Responsibilities of operator.

A. 
The owner, operator or licensee shall maintain a register of all employees, showing the name, any aliases used, home address, age, birth date, date of employment and termination and duties of each employee. The above information on each employee shall be maintained in the register on the premises for a period of three years following termination.[1]
[1]
Editor's Note: See also Ch. 17, Alcoholic Beverages, Art. IV.
B. 
The owner, operator or licensee shall make the register of employees available immediately for inspection by the representatives of the Borough of Seaside Heights at all reasonable times.
C. 
Every act or omission by an employee constituting a violation of the provisions of this chapter shall be deemed the act or omission of the owner, operator or licensee if such act or omission occurs either with the authorization, knowledge or approval of the owner, operator or licensee or as a result of the negligent failure of the owner, operator or licensee to supervise the employee's conduct, and said owner, operator or licensee shall be punishable for such act or omission in the same manner as if the owner, operator or licensee committed the act or caused the omission.
D. 
Any act or omission of any employee constituting a violation of the provisions of this chapter shall be deemed the act or omission of the owner, operator or licensee for purposes of determining whether the license of owner, operator or licensee shall be revoked, suspended or renewed.
E. 
The owner, operator or licensee shall not allow any minor to loiter around or to frequent an adult-oriented establishment or to allow any minor to view adult entertainment as defined herein.
F. 
The operator shall maintain the premises in a clean and sanitary manner at all times.
G. 
The owner, operator or licensee shall ensure compliance of the establishment and its patrons with the provisions of this chapter.

§ 8-14 Employees.

A. 
An adult-oriented establishment as defined herein shall not employ any person under the age of 18 years. A person under the age of 18 years commits an offense if he or she appears in a state of nudity in or on the premises of an adult-oriented establishment.
B. 
An employee commits an offense if he or she appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of an adult entertainment establishment which can be viewed from a public right-of-way.
C. 
No individual, partnership, corporation or other entity holding the license shall employ any person in or about the licensed premises who has not been issued an identification card by the Police Department of the Borough of Seaside Heights.
(1) 
All persons employed in or about any licensed premises shall carry an identification card issued by the Police Department at all times while in the course of their employment and shall exhibit the same upon the request of any authorized borough official.
(2) 
Any person desiring to obtain an identification card shall report to the Police Department where application forms shall be completed. The applicant shall pay a fee of $10 for an identification card.
(3) 
The Police Department shall issue an identification card to each employee, which card shall contain the name, address and a photograph of the employee. A copy of the identification card and photograph shall be maintained on file by the Police Department.
D. 
It shall be the duty of the owner, operator or licensee to ensure that all of its employees comply with the provisions of this chapter.

§ 8-15 Additional regulations for adult cabarets.

Adult cabarets shall comply with the following additional regulations:
A. 
All dancing shall occur on a platform intended for that purpose which is raised at least three feet from the level of the floor.
B. 
No dancing shall occur closer than 10 feet to any patron or customer.
C. 
No dancer shall fondle or caress any patron, and no patron shall fondle or caress any dancer.
D. 
No patron shall directly pay or give any gratuity to any dancer, and no dancer shall solicit any pay or gratuity from any patron.

§ 8-16 Hours of operation.

A. 
Adult entertainment establishments may be open for business daily from 6:00 a.m. until 1:00 a.m. of the following day. Any adult entertainment establishment which is licensed to sell alcoholic beverages for on-premises consumption shall be permitted to remain open for those hours set forth in Chapter 25, Amusement Games and Devices, of the Borough Code, provided that all adult entertainment ceases by 1:00 a.m.
B. 
Adult entertainment establishments shall remain closed for business except during the hours fixed as open for business by this chapter.

§ 8-17 Violations and penalties.

A. 
Any person violating or failing to comply with any other provision of this chapter shall, upon conviction thereof, be punishable by a fine of no less than $100 and no more than $1,000, by imprisonment not to exceed 90 days or by community service of not more than 90 days or any combination of fine, imprisonment and community service, as determined in the discretion of the Municipal Court Judge. The continuation of such violation for each successive day shall constitute a separate offense, and the person or persons allowing or permitting the continuation of the violation may be punished as provided above for each separate offense.
B. 
The violation of any provision of this chapter shall be subject to abatement summarily by a restraining order or injunction issued by a court of competent jurisdiction.

§ 8-18 Exclusions and exemptions.

A. 
All private schools and public schools, as defined by New Jersey statutes, located within the Borough of Seaside Heights are exempt from obtaining a license hereunder when instructing pupils in accordance with a sex education curriculum.
B. 
It is a defense to prosecution under the provisions of this chapter that a person appearing in a state of nudity did so as an art class model in a private school or public school within the boundaries of the Borough of Seaside Heights.
C. 
It is a defense to prosecution under the provisions of this chapter that each item of descriptive, printed, film or video material offered for sale or rental, taken as a whole, contains serious literary, artistic, political or scientific value.