[Adopted 8-6-2008 by Ord. No. 443[1]]
[1]
Editor's Note: This ordinance also repealed
former Art. III, Adult Uses.
Based on review of studies, reports and court
decisions more particularly described in the footnote below,[1] the City Council finds that sexually oriented businesses
featuring full or partial nudity and/or sexual activities produce
negative secondary effects of increased crime rate, declining or depressed
property values, and a diminished sense of safety and security in
members of the general public. The purpose of this article provision
is to define and regulate sexually oriented businesses, and to prohibit
public nudity in order to minimize or eradicate the negative secondary
effects of sexually oriented businesses and public nudity.
[1]
Editor's Note: Based on evidence of the adverse
secondary effects of adult uses presented in hearings and in reports
made available to the City Council, and on findings incorporated in
the cases of Pap's A.M. v. City of Erie, 529 U.S. 277 (2000); Thomas
v. Chicago Park District 122 S. Ct. 775 (2002), 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); California v. LaRue, 409 U.S. 109 (1972); DLS, Inc. v.
City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); East Brooks Books,
Inc. v. City of Memphis, 48 F.3d 220 (6th Cir. 1995); Broadway Books
v. Roberts, 642 F.Supp. 486 (E.D. Term. 1986); Bright Lights. Inc.
v. City of Newport, 830 F.Supp. 378 (E.D. Ky. 1993); Richland Bookmart
v. Nichols, 137 F.3d 435 (6th Cir. 1998); Del vu v. Metro Government,
1999 U.S. App. LEXIS 535 (6th Cir. 1999); Bamon Corp. v. City of Dayton,
7923 F.2d 470 (6th Cir. 1991); Threesome Entertainment v. Strittmather,
4 F.Supp.2d 710 (N.D. Ohio 1998); J.L. Spoons, Inc. v. City of Brunswick,
49 F.Supp.2d 1032 (N.D. Ohio 1999); Triplett Grille, Inc. v. City
of Akron, 40 F.3d 129 (6th Cir. 1994); Nightclubs, Inc. v. City of
Paducah, 202 F.3d 884 (6th Cir. 2000); O'Connor v. City and County
of Denver, 894 F.2d 1210 (10th Cir. 1990); Deja vu of Nashville, Inc
. et al. v Metropolitan Government of Nashville and Davidson County,
2001 U.S. App. LEXIS 26007 (6th Cir. Dec. 6, 2001); Z.J. Gifts D-2,
L.L.C. v. City of Aurora, 136 F.3d 683 (10th Cir. 1998); Connection
Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998); Sundance Assocs.
v. Reno, 139 F.3d 804 (10th Cir. 1998); American Library Association
v. Reno, 33 F.3d 78 (D.C. Cir. 1994); American Target Advertising,
Inc. v Giani, 199 F.3d 1241 (10th Cir. 2000); Z.J. Gifts D-2, L.L.C.
v. City of Aurora, 136 F.3d 683 (10th Cir. 1998); ILQ Investments,
Inc. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994); Bigg Wolf
Discount Video Movie Sales, Inc. v. Montgomery County, 2002 U.S. Dist.
LEXIS 1896 (D. Md., Feb. 6, 2002); Currence v. Cincinnati, 2002 U.S.
App. LEXIS 1258 (6th Cir., Jan. 24, 2002); and other cases; and on
testimony to Congress in 136 Cong. Rec. S 8987; 135 Cong. Rec. S.
14519; 135 Cong. Rec. S 5636; 134 Cong. Rec. E 3750; and reports of
secondary effects occurring in and around sexually oriented businesses,
including, but not limited to, Phoenix, Arizona - 1979; Minneapolis,
Minnesota - 1980; Houston, Texas - 1997; Amarillo, Texas; Garden Grove,
California - 1991; Los Angeles, California - 1977; Whittier, California
- 1978; Austin, Texas - 1986; Seattle, Washington - 1989; Oklahoma
City, Oklahoma - 1986; Cleveland, Ohio - and Dallas, Texas - 1997;
St. Croix County, Wisconsin - 1993; Bellevue, Washington, - 1998;
Newport News, Virginia 1996; New York Times Square study - 1994; Phoenix,
Arizona - 1995-98; and also on findings from the paper entitled "Stripclubs
According to Strippers: Exposing Workplace Sexual Violence," by Kelly
Holsopple, Program Director, Freedom and Justice Center for Prostitution
Resources, Minneapolis, Minnesota, and from "Sexually Oriented Businesses:
An Insider's View," by David Sherman, presented to the Michigan House
Committee on Ethics and Constitutional Law, Jan. 12, 2000, and the
Report of the Attorney General's Working Group on the Regulation of
Sexually Oriented Businesses, (June 6, 1989, State of Minnesota),
the City Council finds that sexually oriented businesses as a category
of establishments are correlated with harmful secondary effects, and
that the foregoing reports are reasonably believed to be relevant
to the problems that Rockwood is seeking to abate and prevent in the
future.
As used in this article, the following terms
shall have the meanings indicated:
A commercial establishment having as a significant or substantial
portion of its inventory or stock in trade, deriving a significant
or substantial portion of its revenues from, or maintaining a significant
or substantial section of its sales and display space, to the sale
or rental, for any form of consideration, of any one or more of the
following:
Books, magazines, periodicals and other printed
and/or electronic or digital matter, or photographs, posters, films,
motion pictures, videotapes, tape, compact discs, slides, pictures,
cassettes, or any other printed, electronic or recorded visual material
which has as a significant portion of its content or exhibit matter
or actions depicting, describing or relating to specified sexual activities
or specified anatomical areas.
Instruments, devices, or paraphernalia which
are designed for use or market primarily for stimulation of human
genital organs or for sadomasochistic use or abuse of themselves or
others.
"Significant or substantial portion" means 30%
or more of the term modified by such phrase.
"Specified sexual activities are defined herein
as follows:
"Specified anatomical areas" are defined as
less than completely and opaquely covered human genitals, pubic region;
buttock; the nipple and/or areola of the female breast; and human
male genitals in a discernible turgid state, even if completely and
opaquely covered.
"Regular feature or regular basis" is a consistent
or substantial course of conduct such that films or performances exhibited
on the premises constitute a substantial or significant portion of
the films or performances consistently offered as part of the ongoing
business on the premises.
A nightclub, theater, bar, juice bar, restaurant, bottle
club, coffee house or any other building, structure, premises or other
establishment, whether or not alcoholic beverages are served, which
features:
Persons who appear nude or seminude.
Live performances by topless and/or bottomless
dancers, "go-go" dancers, exotic dancers, male or female strippers,
male or female impersonators or similar entertainers, where a significant
portion of such performances show, depict or describe specified sexual
activities or specified anatomical areas.
Films, motion pictures, video cassettes, slides,
electronic, digital or other photographic reproductions which are
characterized by their emphasis upon the exhibition or description
of specified sexual activities or specified anatomical areas.
Any use of land, whether vacant or combined with structures
or vehicles thereon, by which such property is devoted to displaying
or exhibiting material for entertainment, a significant portion of
which includes matter or actions depicting, describing, or presenting
specified sexual activities or specified anatomical areas.
A person or individual who provides entertainment which may
include dancing emphasizing specific sexual activities, displaying
full or partial nudity or showing specific anatomical areas during
a show, exhibition or work at an adult entertainment business or any
other commercial establishment, except theatrical or movie performances
when such displays of full or partial nudity are not the intended
attraction or occur on a regular basis, "regular basis" being defined
as more than four times per year.
An enclosed building with a capacity for less than 50 persons
used for presenting to others motion-picture films, video cassettes,
compact discs, cable television or other visual material which has
a significant portion of any motion picture or other display depicting
or relating to specified sexual activities or specified anatomic areas
for observation by patrons therein.
Any place where, for any form of consideration or gratuity,
nude or seminude figure models who display specified anatomical areas
are provided to be observed, sketched, drawn, painted, sculptured,
photographed, or similarly depicted by persons paying such considerations
or gratuities, except that this provision shall not apply to any bona
fide art school or similar educational institution.
A motel wherein matter, actions, or other displays are presented
for the entertainment of its patrons which contain a significant portion
depicting, describing, or relating to specified sexual activities
or specified anatomical areas.
Any place to which the public is permitted or invited wherein
coin- or slug-operated or electronically or mechanically controlled
still or motion-picture machines, projectors, video machines or other
image-producing devices are maintained to show images to five or fewer
persons per machine at any time, and where a significant portion of
images so displayed depict, describe, or relate to specified sexual
activities or specified anatomical areas.
An enclosed building with a capacity of 50 or more persons
used for presenting to others motion-picture films, video cassettes,
compact discs, cable television or other visual material which has
a significant portion of any motion picture or other display depicting
or relating to specified sexual activities or specified anatomical
area for observation by patrons therein.
Any business, agency, or service which arranges, solicits,
or provides for the benefit of its customers or clients escorts, dates,
models, unlicensed therapists, companions, or entertainers, either
on or off the premises, for the purpose of engaging in specified sexual
activities or specified acts of violence, or displaying specified
anatomical areas as defined herein. These establishments include,
but are not limited to, escort services, exotic rubs, modeling studios,
body painting studios, wrestling studios, baths, theatrical performances,
and photographic studios.
Any establishment, club, or business by whatever name designated,
which provides, offers, or advertises, or is equipped or arranged
so as to provide as part of its services, either on or off the premises,
massage, body rubs, physical stimulation, baths, tattoos, or other
similar treatment by any person. The following uses shall not be included
within the definition of an adult physical culture establishment:
establishments which routinely provide such services by a licensed
physician, a licensed chiropractor, a licensed osteopath, a licensed
or certified physical or massage therapist, a licensed practical nurse,
or any other similarly licensed medical professional; electrolysis
treatment by a licensed operator of electrolysis equipment; continuing
instruction in martial or performing arts or in organized athletic
activities; hospitals, nursing homes, medical clinics or medical offices;
and barber shops or beauty parlors, health spas and/or salons which
offer massage to the scalp, face, feet, neck or shoulders only.
Any business, agency, or person who, for any form of consideration
or gratuity, provides a place where three or more persons, not all
members of the same family, may congregate, assemble, or associate
for the purpose of engaging in specified sexual activities or exposing
specified anatomical areas.
One or a combination of more than one of the following types
of businesses: adult bookstore, video store or novelty store, adult
cabaret, adult entertainment, adult mini motion-picture theater, adult
model studio, adult motel, adult motion-picture arcade, adult motion-picture
theater, adult personal service establishment, adult physical culture
establishment, adult sexual encounter center, or any commercial establishment
that regularly features the sale, rental, or exhibition for any form
of consideration of books, films, videos, DVDs, magazines, or other
visual representation of live performances which are characterized
by an emphasis on the exposure or display of specific anatomical areas
or specific sexual activities.
It shall be unlawful for any owner, tenant,
person, licensee, agent or employee of any establishment, theater,
bar, tavern, club, business or any other building or place of business
in the City of Rockwood to operate an adult use or sexually oriented
business without first applying for and securing zoning approval of
the location of such adult use and a license for such use from the
City Clerk.
A.
At the time the application is filed, a nonrefundable
application fee in the amount set from time to time by Council resolution
shall be remitted to the City Clerk, and shall be in addition to any
other fee requested by this article.
B.
An application for a license must be made on a form
provided by the City Clerk. The application must be accompanied by
a survey, 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.
C.
Only a person who is an officer of or who has an ownership
interest in a sexually oriented business may apply for a license for
the business. Each applicant must be qualified according to the provisions
of this article.
D.
If a person who wishes to operate a sexually oriented
business is an individual, he or she must sign the application for
a license as applicant. If a person who wishes to operate a sexually
oriented business is other than an individual, each individual who
is an officer of the business or who has a twenty-percent or greater
ownership interest in the business must sign the application for a
license as applicant. Each applicant must be qualified under this
article, and each applicant shall be considered a licensee if a license
is granted.
E.
In addition to identifying those persons required
to sign an application under Subsection C or D, the application must
identify all parent and related corporations or entities of any person
or entity who will own or operate the sexually oriented business and
include the names of the officers of each parent or related corporation
or entity.
The City Clerk shall approve the issuance of
a license to an applicant within 30 days after receipt of an application
if zoning approval is not required or within 30 days of the issuance
of zoning approval unless the City Clerk finds one or more of the
following to be true:
A.
An applicant is under 18 years of age.
B.
An applicant or an applicant's spouse is overdue in
payment to the City of taxes, fees, fines, or penalties assessed against
or imposed upon the applicant or the applicant's spouse in relation
to a sexually oriented business.
C.
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.
D.
An applicant or an applicant's spouse has been convicted
of a violation of a provision of this article within two years immediately
preceding the application.
E.
Any fee required by this article has not been paid.
F.
An applicant or the proposed establishment is in violation
of or is not in compliance with any other provision of the City Code.
G.
An applicant or an applicant's spouse has been convicted
of a crime involving: prostitution; criminal sexual conduct; pandering;
indecent exposure; obscenity; sale, distribution, or display of harmful
material to a minor; possession of child pornography; 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 twenty-four-month period.
H.
An applicant has been operating the proposed business
as a sexually oriented business without a valid license issued under
this article.
I.
Operation of the proposed sexually oriented business
would violate the City's zoning ordinances.
(1)
The fact that a conviction is being appealed has no
effect on the disqualification of the applicant or applicant's spouse
under Subsection I.
(2)
Except as otherwise provided in this subsection, when
the City Clerk denies issuance or renewal of a license, the applicant
may not apply for or be issued a sexually oriented business license
for one year after the date the denial became final. If, subsequent
to the denial, the City Clerk finds that the basis for the denial
has been corrected or abated, the applicant may apply for and be granted
a license if at least 90 days have elapsed since the date the denial
became final.
(3)
The City Clerk, upon approving issuance of a sexually
oriented business license, shall send to the applicant, by certified
mail, return receipt requested, written notice of that action and
state where the applicant must pay the license fee and obtain the
license. The Chief of Police's approval of the issuance of a license
does not authorize the applicant to operate a sexually oriented business
until the applicant has paid all fees required by this article and
obtained possession of the license.
(4)
The license, if granted, must state on its face the
name of the person or persons to whom it is granted, the expiration
date, and the address of the sexually oriented business. The license
must be posted in a conspicuous place at or near the entrance to the
sexually oriented business so that it may be easily read at any time.
A.
An application will be reviewed by the Police Department,
the Fire Department, the Building Department and/or Building Official
to determine if the qualifications set forth in § 126-26
have been met.
B.
An applicant or licensee shall permit representatives
of the Police Department, the Department of Environmental and Health
Services, the Fire Department, the Building Department and/or the
Building Official to inspect the premises of a sexually oriented business,
for the purpose of ensuring compliance with the law, at the time of
the application or any time it is occupied or open for business and
at other reasonable times upon request.
C.
A person who operates a sexually oriented business
or the person's agent or employee commits an offense if he or she
refuses to permit a lawful inspection of the premises by a representative
of the Police Department, the Department of Environmental and Health
Services, the Fire Department, the Building Department and/or the
Building Official at any time the sexually oriented business is occupied
or open for business and at other reasonable times upon request.
Each license expires one year from the date
of issuance, except that a license issued pursuant to a locational
restriction expires on the date the exemption expires. A license may
be renewed only by making application as provided in § 126-26.
Application for renewal should be made at least 30 days before the
expiration date, and when made less than 30 days before the expiration
date, the expiration of the license will not be affected by the pendency
of the application.
The City Clerk, upon recommendation of the Police
Chief, the Fire Chief, or the Building Official, may suspend a license
for a period not to exceed 30 days if he or she determines that a
licensee or an employee of a licensee has:
A.
The City Clerk may revoke a license if a cause of
suspension in § 126-30B occurs and the license has been
previously suspended within the preceding 12 months.
B.
The City Clerk may revoke a license if the Chief of
Police, the Fire Chief or Building Official represents to him or her
that one or more of the following is true:
(1)
A licensee gave false or misleading information in
the material submitted to the Chief of Police during the application
process.
(2)
A licensee or an employee has knowingly allowed possession,
use, or sale of controlled substances on the premises.
(3)
A licensee or an employee has knowingly allowed prostitution
on the premises.
(4)
A licensee or an employee knowingly operated the sexually
oriented business during a period of time when the licensee's license
was suspended.
(6)
On two or more occasions within a twelve-month period,
a person or persons committed an offense occurring in or on the sexually
oriented business premises of a crime listed in § 126-26
for which a conviction has been obtained, and the person or persons
were employees of the licensee or the sexually oriented business at
the time the offenses were committed.
(7)
A licensee or an employee has knowingly allowed any
act of sexual intercourse, sodomy, oral copulation, masturbation,
or sexual contact to occur in or on the sexually oriented business
premises.
(8)
A licensee is delinquent in payment to the City for
hotel occupancy taxes, ad valorem taxes, or sales taxes related to
the sexually oriented business.
C.
The fact that a conviction is being appealed has no
effect on the revocation of the license.
D.
When the City Clerk revokes a license, the revocation
will continue for one year, and the licensee shall not apply for or
be issued a sexually oriented business license for one year after
the date revocation became effective. If, subsequent to revocation,
the City Clerk finds that the basis for the revocation has been corrected
or abated, the applicant may apply for and be granted a license if
at least 90 days have elapsed since the date the revocation became
effective. If the license was revoked under Subsection B(5), an applicant
may not apply for or be granted another license until the appropriate
number of years required under § 126-26 has elapsed.
E.
In determining whether a sexually oriented business
license should be denied, suspended, revoked, or denied for renewal
based on criminal convictions of an applicant or licensee of a sexually
oriented business, or on convictions of an employee of the applicant,
the licensee, or the sexually oriented business, all convictions for
offenses occurring within a designated time period will be counted,
regardless of whether the offenses occurred during the current license
period, a prior license period, or an unlicensed period.
F.
Notwithstanding Subsection E, a conviction for an
offense committed during a prior license period or an unlicensed period
will not be counted against a current applicant or licensee of a sexually
oriented business if no person who is deemed a current applicant or
licensee was an applicant, licensee, owner, or operator of the sexually
oriented business during the prior license period or unlicensed period
in which the offense was committed.
After receipt of notice of suspension, revocation,
or denial of renewal of a sexually oriented business license, the
licensee shall, on or before the date specified in the notice, discontinue
operating the sexually oriented business and surrender the license
to the City Clerk.
A.
If the City Clerk denies the issuance or renewal of
a license, or suspends or revokes a license, the City Clerk shall
send to the applicant or licensee, by certified mail, return receipt
requested, written notice of the action and the right to an appeal.
B.
Upon receipt of written notice of the denial, suspension,
or revocation, the applicant or licensee whose application for a license
or license renewal has been denied or whose license has been suspended
or revoked has the right to appeal to the City Council under § 126-14
of the City Code.
C.
The filing of an appeal under this subsection stays
the action of the City Clerk in suspending or revoking a license until
a final decision is made by the City Council. A suspension or revocation
upheld by the City Council takes effect on the first midnight that
is at least 24 hours after the Board issues its decision.
D.
An appeal to the State Circuit Court must be filed
within 30 days after the receipt of notice of the decision of the
City Council.
A licensee shall not transfer his or 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.
A.
Any person desiring employment as a dancer or entertainer
in a sexually oriented business shall first make application to the
City Clerk for a license as required in this section. At the time
the application is filed, a nonrefundable application fee in the amount
set from time to time by City Council resolution shall be remitted
to the City Clerk, and shall be in addition to any other fee required
by this article. Any applicant for a license pursuant to this section
shall submit the following information and submittals to the City
Clerk:
(1)
The full correct name, social security number and
present address of the applicant.
(2)
The two previous addresses immediately prior to the
present address of the applicant and the dates of residence.
(3)
A complete description in writing of the services
to be performed.
(4)
The location, name, and mailing address of all prospective
employers.
(5)
Written proof (by birth certificate or sworn affidavits)
that the applicant is at least 18 years of age.
(6)
The individual applicant's height, weight, color of
eyes and hair, sex.
(7)
One recent portrait photograph depicting a reasonable
likeness of the applicant that is at least two inches by two inches
and a complete set of the applicant's fingerprints, which shall be
taken by the Police Chief or his designee.
(8)
All criminal convictions other than traffic violations
and the specifics thereof.
(9)
The application shall be signed and its truthfulness
sworn to by the applicant.
(10)
A complete list of all stage names, pseudonyms,
aliases or nicknames under which the applicant has or will appear
and documentation of any legal name changes by any court of record
within the last seven years, or name changes resulting from marriage
or divorce.
(11)
Such other identification and information necessary
to discover the truth of the matters specified in this section, as
required by the City Clerk and/or the Police Chief or his designee.
B.
Renewal. The City Clerk shall issue or renew an entertainer's
license after the Police Chief has completed a criminal record check
of local and state police records. A record of conviction for an offense
involving gambling, narcotics, prostitution, pandering, pornography,
or any crime involving moral turpitude, or a violation of any provision
of this section within the preceding two years shall be grounds for
refusal to issue or renew an entertainer's license.
C.
Renewal; fee. An adult dancer or entertainer must
file an application for renewal with the City Clerk's office on or
before the first Monday in June of each year along with a nonrefundable
renewal fee set from time to time by Council resolution.
D.
Revocation. A license issued pursuant to this section
shall remain the property of the City and shall be revoked and surrendered
upon demand when proof is submitted to the City Clerk or the Police
Chief of any violation of the conditions of its issuance.
