[Adopted 4-5-2010 by Ord. No. 53-10]
The Common Council of the City of Middletown finds as follows:
A.Â
The operation of sexually oriented businesses in the City requires
special regulation and supervision by the City to protect, preserve
and promote the health, safety and welfare of the patrons of such
businesses, as well as the health, safety and welfare of the City's
residents. Further, protecting order and morality, preserving the
character and preventing the deterioration of the City's neighborhoods,
promoting retail trade, maintaining property values, and ensuring
sanitary and safe public places are desirable objectives of the community
and its leaders.
B.Â
The Common Council has reviewed the following materials and information
regarding sexually oriented businesses:
(1)Â
Virginia Adult Use Study dated March 1996, published by the Newport
News Department of Planning and Development in the Newport News, Virginia.
(2)Â
A study called "Adult Entertainment Businesses in Indianapolis" dated
February 1984, which was conducted by the Department of Metropolitan
Development, Division of Planning.
(3)Â
A study called "Adult Entertainment Businesses in Oklahoma City:
A survey of Real Estate Appraisers" dated March 3, 1986, which was
conducted by the City of Oklahoma City Community Development Department.
(4)Â
City of Renton v. Playtime Theatres, Inc. et al., 475 US 41, 106
S. Ct. 925 (1986).
(5)Â
Police records from the Orange Police Department relating to calls
to the VIP store in Orange, Connecticut in 2003 and 2006.
(6)Â
Police records from the Berlin Police Department relating to calls
to the Twin Spruce Motel located at 697 Berlin Turnpike.
(7)Â
Police records from the Hartford Police Department relating to calls
to the VIP store in Hartford, Connecticut in 2003, 2004, 2005, 2006
and 2007.
(8)Â
Expert opinion testimony as set forth in the Expert Witness Disclosures
in the case of Ten's Cabaret, Ltd. v. City of New York et al., Index
No. 121197/02, Supreme Court of the State of New York, County of New
York, dated March, 2008.
(9)Â
Survey of Texas Appraisers "Secondary Effects of Sexually Oriented
Businesses on Market Values" by Connie B. Cooper, FAICP, Eric Damian
Kelly, Ph. D., FAIC, and "Crime Related Secondary Effects-Secondary
Effects of Off-Site Sexually Oriented Businesses" by Richard McCleary,
Ph.D. dated June 2008.
(10)Â
"Men's Behavior Toward Women After Viewing Sexually Explicit
Films: Degradation Makes a Difference," Mulac, Jansma and Linz; Communication
Monographs, Vol. 69, No. 4, December 2002, pp. 311-328.
(11)Â
"Crime Risk in the Vicinity of a Sexually Oriented Business.
A Report to the Centralia City Attorney's Office" by Richard McCleary,
Ph.D. dated February 28, 2004.
(12)Â
"Do 'Off Site' Adult Businesses Have Secondary Effects? Legal
Doctrine, Social Theory, and Empirical Evidence," McCleary and Weinstein,
November 14, 2007.
(13)Â
"Men's Interaction with Woman After Viewing Sexually Explicit
Films: Does Degradation Make a Difference?" Jansma, Linz, Mulac and
Imrich, Communication Monographs, Volume 64, March 1997.
(14)Â
Selected Craigslist postings in 2007 and 2008.
(15)Â
City of Milford Adult Use Ordinance.
C.Â
Statistics and studies performed by a substantial number of cities
and towns in the United States indicate that:
(1)Â
Large numbers of persons, primarily male, frequent such sexually
oriented businesses, especially those which provide closed booths,
cubicles, studios and rooms for the private viewing of so-called "adult"
motion pictures, videotapes or live entertainment.
(2)Â
Such closed booths, cubicles, studios and rooms have been used by
patrons, clients or customers of such sexually oriented businesses
for the purpose of engaging in specified sexual activities.
(3)Â
Male and female prostitutes have been known to frequent such businesses
in order to provide sex for hire to the patrons, clients or customers
of such businesses within such booths, cubicles, studios and rooms.
(4)Â
Doors, curtains, blinds and other closures installed in or on the
entrances and exits of such booths, cubicles, studios and rooms which
are closed while such booths, cubicles, studios and rooms are in use
encourage patrons using such booths, cubicles, studios and rooms to
engage in specified sexual activities therein with prostitutes, other
persons or by themselves, thereby promoting and encouraging prostitution
and the commission of specified sexual activities which cause blood,
semen, urine or other bodily secretions to be deposited on the floors
and walls of such booths, cubicles, studios and rooms, which deposits
could prove detrimental to the health and safety of other persons
who may come into contact with such deposits.
(5)Â
Booths, cubicles, studios and rooms that are closed while they are
in use often contain holes that have been cut or smashed out of the
walls or other partitioning material. These holes permit the inhabitant
of one booth, cubicle, studio or room to engage in specified sexual
activities with the inhabitant of the adjoining booth, cubicle, studio
or room. These holes promote and encourage specified sexual acts to
occur between persons anonymously. Anonymous sexual contact poses
a higher risk of spread of communicable diseases, including the AIDS
virus, Hepatitis B and other sexually transmitted diseases. Further,
the existence of such holes in booths, cubicles, studios and rooms
at sexually oriented businesses provides an increased risk that blood,
semen, urine or other bodily secretions will be deposited on the floors
and walls of such booths, cubicles, studios and rooms, which deposits
could prove detrimental to the health and safety of other persons
who may come into contact with such deposits.
(6)Â
Specified sexual activities often occur at unregulated sexually oriented
businesses that provide live adult entertainment. Specified sexual
activities include sexual physical contact between employees and patrons
of sexually oriented businesses and specifically include "lap dancing"
or manual or oral touching or fondling of specified anatomical areas,
whether clothed or unclothed. Such casual sexual physical contact
between strangers may result in the transmission of communicable diseases,
which would be detrimental to the health of the patrons and employees
of such sexually oriented businesses.
(7)Â
The unregulated operation of sexually oriented businesses, including
off-site adult businesses like adult bookstores, adult video stores
and adult novelty stores, is associated with an increase in the incidence
of sex-related crimes and other crimes and also has a disruptive effect
on the surrounding neighborhood by causing excessive noise, parking
problems, the presence of discarded sexually oriented material on
residential lawns, and the performance of sexual acts in public places,
as well as causing a deleterious effect on surrounding businesses
and decrease in the value of surrounding property.
(8)Â
Sexually oriented businesses that operate in close proximity to each
other further contribute to an increase in crime, lower property values,
blight and the downgrading of the quality of life and value of property
in the adjacent area, and sexually oriented businesses that operate
within a short distance of schools, churches, parks, libraries and
other public facilities negatively impact such places and have an
adverse effect upon persons, particularly children, walking to and
from such places.
(9)Â
The reasonable regulation and supervision of such sexually oriented
businesses tends to discourage prostitution, other sex-related crimes,
anonymous and high-risk sexual contact and unsanitary sexual activity,
excessive noise and property devaluement, thereby decreasing the incidences
of communicable diseases and sex-related crimes, all thereby promoting
and protecting the health, safety and welfare of the employees and
the members of the public who patronize such businesses and protecting
the health, safety and property interests of a city and its residents.
(10)Â
Location and zoning regulations alone do not adequately protect
the public health, safety and welfare, and thus certain requirements
with respect to the ownership, employees, facility, operation, advertising,
hours of business and other aspects of the sexually oriented business
are in the public interest.
D.Â
The continued unregulated operation of such sexually oriented businesses
is and would be detrimental to the health, safety and general welfare
of the residents of the City.
E.Â
The Constitution and laws of the state grant to the City powers,
especially the police power, to enact reasonable legislation and measures
to regulate and supervise sexually oriented businesses in order to
protect the public health, safety and welfare.
F.Â
It is the purpose and intent of the Common Council, in enacting this
article, to regulate sexually oriented businesses to promote the health,
safety and general welfare of the residents of the City and to establish
reasonable and uniform regulations of such businesses in order to
reduce or eliminate the adverse secondary effects of such sexually
oriented businesses, protect residents from increased crime, preserve
the quality of life, preserve the property values and the character
of surrounding neighborhoods and businesses, deter the spread of blight,
and protect against the threat to public health from the spread of
communicable and social diseases.
G.Â
It is not the intent of the Common Council, in enacting this article,
to deny to any person rights to speech protected by the United States
or State Constitution, nor is it the intent of the Council to impose
any additional limitations or restrictions on the content of any communicative
materials including sexually oriented films, videotapes, books or
other materials. Further, by enacting this article, the Council does
not intend to deny or restrict the constitutionally protected rights
of any adult to obtain or view any sexually oriented materials under
the United States or State constitution, nor does it intend to restrict
or deny any constitutionally protected rights that distributors or
exhibitors of such sexually oriented materials may have to sell, distribute
or exhibit such materials.
The following words, terms and phrases, when used in this article,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
Any establishment where one or more still or motion-picture
projectors, slide projectors or similar machines, or other image-producing
machines, for viewing by five or fewer persons each, are regularly
used to show films, motion pictures, videocassettes, slides or other
photographic reproductions that are characterized by the depiction
or description of specified anatomical areas or specified sexual activities.
Any books, magazines, periodicals, pamphlets, or other printed
materials that depict, display or describe specified anatomical areas
or specified sexual activities.
Any nightclub, bar, restaurant or similar commercial establishment,
whether or not alcoholic beverages are served, which regularly features:
Persons who appear nude or seminude;
Live performances that are characterized by the exposure of
specified anatomical areas; or
Films, motion pictures, videocassettes, slides or other photographic
reproductions that are characterized by the depiction or description
of specified anatomical areas or specified sexual activities.
Any exhibition of any adult-oriented motion pictures live performance,
display or dance of any type that has as a significant or substantial
portion of such performance any performance of specified sexual activities
or exhibition and viewing of specified anatomical areas, removal of
articles of clothing or appearing unclothed, pantomime, modeling,
or any other personal services offered customers, when such adult
entertainment is held, conducted, operated or maintained for profit,
direct or indirect; and
Any amusement machine that is regularly used for presenting
material that is characterized by the depiction or description of
specified anatomical areas or specified sexual activities, for observation
by patrons thereof. Adult mini-motion-picture theater means any enclosed
building with a capacity of 50 fewer persons regularly used for showing
films, motion pictures, videocassettes, slides or other photographic
reproductions that are characterized by the depiction or description
of specified anatomical areas or specified sexual activities, for
observation by patrons therein.
Any enclosed building with a capacity of more than 50 persons
regularly used for showing films, motion pictures, videocassettes,
slides or other photographic reproductions that are characterized
by the depiction or description of specified anatomical areas or specified
sexual activities, for observation by patrons therein.
Instruments, devices, toys or paraphernalia that are designed
for or marketed primarily for stimulating human genital organs, sexual
arousal or sadomasochistic use;
Instruments, devices, gag gifts, toys or paraphernalia that
depict, display or are shaped in the form of specified anatomical
areas; and
Oils, lotions, gels or creams that are designed for or marketed
primarily for use upon specified anatomical areas and intended for
stimulating human genital organs, sexual arousal or as an aid to enhance
or promote specified sexual activities.
Any establishment having:
Greater than 5% of its gross floor devoted to the display of
adult books, adult videos or adult novelties or any combination thereof;
Any portion of its stock-in-trade in adult books, adult videos
or adult novelties and in conjunction therewith has rooms, designated
areas or facilities for the presentation, observation or use by patrons
of any item sold or rented in such establishment.
Any theater, concert hall, auditorium or similar commercial
establishment that regularly features persons who appear nude or seminude
or who appear in live performances that are characterized by the depiction
or description of specified anatomical areas or specified sexual activities,
for observation by patrons therein.
Films, motion pictures, videocassettes, DVDs, software, slides
or other photographic reproductions that depict, display or describe
specified anatomical areas or specified sexual activities.
Any church, synagogue, mosque, temple or building that is
used primarily for religious worship and related religious activities.
Any and all persons, including independent contractors, who
work in or at or render any services directly related to the operation
of a sexually oriented business.
Any person who provides adult entertainment within a sexually
oriented business, whether or not a fee is charged or accepted for
such entertainment and whether or not such entertainment is provided
as an employee or independent contractor.
Any person who, for any form of consideration, agrees or
offers to act as a social 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.
Any person or business that furnishes, offers to furnish,
or advertises to furnish escorts as one of its primary business purposes
for a fee, tip, or other consideration.
The Review Committee, Chief of Police, Fire Marshal, Chief
Building Official, Director of Health, Zoning Enforcement Officer,
their agent or representative, or any City or state employee designated
to make inspections for public safety, fire code, building code, public
health, zoning purposes, violations of this article, or for violations
of other laws and ordinances of the City or state.
Any premises that requires a sexually oriented business license
pursuant to this article, including any buildings, parking areas and
all other portions of the property of which the licensee has control.
Any 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 an application for a license.
Any live performance by a person who appears nude or seminude
or any live performance that is characterized by the exposure of specified
anatomical areas.
Any establishment having a fixed business where any person engages
in or carries on, or permits to be engaged in or carried on, any method
of pressure on, or friction against, or stroking, kneading, rubbing,
tapping, pounding, vibrating or stimulating of the external soft parts
of the body with the hands or with the aid of any mechanical or electric
apparatus or appliance with or without any supplementary aids such
as rubbing alcohol, liniments, antiseptics, oils, powders, creams,
lotions, ointments, or other similar preparations commonly used in
this practice.
The definition of "massage parlor" shall not include the practice
of massage:
In any state-licensed hospital, nursing home, clinic, medical
office or rehabilitation facility;
By a state-licensed physician, surgeon, chiropractor, osteopath,
physical therapist, or massage therapist;
By any registered nurse, licensed practical nurse or technician
working under the supervision of a state-licensed physician, surgeon,
chiropractor, osteopath, physical therapist, or certified massage
therapist who shall be present on the licensed premises during the
time the service is rendered;
By trainers for any amateur or professional athletic or athletic
team or school athletic program; or
By any state-licensed barber or beautician with regard to the
massaging of the neck, face, scalp and hair for cosmetic or beautifying
purposes.
Any person who, for any form of consideration, performs massage
activities as described in the previous definition of this section.
Any person under the age of 18 years.
Any place where a person, for any form of consideration,
regularly appears nude or seminude or displays specified anatomical
areas to be observed, sketched, drawn, painted, sculptured, photographed,
or similarly depicted by other persons. A nude model studio shall
not include a modeling class operated by an accredited public or private
school or college.
Any person operating, owning, managing, conducting or maintaining
a sexually oriented business.
Any building owned, leased or otherwise held by the United
States, the state, the City, any other city, any fire district, any
school district, or any other agency or political subdivision of the
United States or the state, which building is used for governmental
purposes.
Public land that has been designated for park or recreational
activities including, but not limited to, a park, playground, nature
trails, swimming pool, reservoir, athletic field, golf course, basketball
or tennis courts, pedestrian or bicycle paths, open space, wilderness
areas, or similar public land within the City that is under the control,
operation, or management of the City, any other city, or the state.
Shall be comprised of the Chief of Police, the Director of
Health and the Director of Land Use.
[Amended 6-7-2021 by Ord. No. 12-21]
Any public, private or parochial educational facility, including,
but not limited to, child day-care facilities, nursery schools, preschools,
kindergartens, elementary schools, middle schools, junior high schools,
high schools, vocational schools, secondary schools, continuation
schools, special education schools, alternative schools, junior colleges,
colleges and universities. "School" includes the school grounds, but
does not include any facility used primarily for another purpose and
only incidentally as a school.
A state of dress in which clothing covers no more than the
genitals, pubic region and areola of the female breast, as well as
portions of the body covered by supporting straps or devices.
Is not intended to include any medical publications or films
or bona fide educational publication or films, nor does it include
any art or photography publications that devote at least 25% of the
lineage of each issue to articles and advertisements dealing with
subjects of art or photography; nor does this definition apply to
any news periodical that reports or describes current events and which,
from time to time, publishes photographs of nude or seminude persons
in connection with the dissemination of the news; nor does this definition
apply to publications or films that describe and report different
cultures and which, from time to time, publish or show photographs
or depictions of nude or seminude persons when describing cultures
in which nudity or seminudity is indigenous to the population.
A business or commercial establishment that, for any form
of consideration, offers a place where two or more persons may congregate,
associate or consort for the purpose of specified sexual activities
or the exposure of specified anatomical areas. A sexual encounter
establishment shall not include an establishment where a state-licensed
medical practitioner, psychologist, psychiatrist, or similar professional
person engages in medically approved and recognized sexual therapy.
An adult arcade, adult-oriented store, adult cabaret, adult
mini-motion-picture theater, adult motion-picture theater, adult theater,
escort agency, massage parlor, nude model studio or sexual encounter
establishment;
Any premises to which the public, patrons, or members are invited
or admitted and wherein an entertainer provides adult entertainment,
or which premises are so physically arranged as to provide booths,
cubicles, studios, rooms, compartments or stalls separate from the
common areas of the premises for the purpose of viewing adult-oriented
motion pictures or wherein an entertainer provides adult entertainment,
when such adult entertainment is held, conducted, operated or maintained
for profit, direct or indirect; or
Any adult entertainment studio or any premises that are physically
arranged and used as such, whether advertised or represented as an
adult entertainment studio, rap studio, exotic dance studio, encounter
studio, sensitivity studio, modeling studio or any other term of like
import.
Showing of human genitals in a state of sexual stimulation or
arousal;
Acts of masturbation, sexual intercourse, sodomy, bestiality,
necrophilia, sadomasochistic abuse, fellatio or cunnilingus;
Fondling or touching of another person's genitals, pubic region,
buttocks or female breasts;
Lap dancing; or
Excretory functions as part of or in connection with any of
such activities.
A.Â
Any licensee, operator, employee or other person who violates any
of the provisions of this article shall be subject to a fine as provided
in C.G.S. § 7-148, as amended, for each such violation.
B.Â
Each violation of this article shall be considered a separate offense,
and any violation continuing more than one hour of time shall be considered
a separate offense for each hour of violation.
C.Â
In addition to any fines or penalties imposed in this section, this
article may be enforced by injunctive procedure in the Superior Court.
The City may further recover from any violator any and all costs and
fees, including reasonable attorney's fees, expended by the City in
enforcing the provisions of this article.
D.Â
This article shall not preclude any additional enforcement action
taken by any appropriate City, state or federal official conducted
pursuant to any applicable ordinance, regulation or law of the City
or state or the United States of America.
E.Â
All remedies and penalties provided for in this section shall be
cumulative and independently available to the City, and the City shall
be authorized to pursue any and all remedies set forth in this section
to the fullest extent allowed by law.
A.Â
Except as provided in § 223-21C, from and after the effective date of the ordinance from which this article is derived, it shall be unlawful for any person to engage in, conduct or carry on or permit to be engaged in, conducted or carried on, in or upon any premises in the City, the operation of a sexually oriented business without first obtaining a license to operate from the City.
B.Â
A license may be issued for only one sexually oriented business located
at a fixed and certain place. Any person who desires to operate more
than one sexually oriented business must have a license for each such
business.
C.Â
It shall be a violation of this article for any owner, operator,
entertainer or employee to knowingly work in or about, or to knowingly
perform any service directly related to, the operation of any unlicensed
sexually oriented business.
D.Â
Each license shall be specific to a licensee and to a location and
may not be sold, assigned or transferred to any other person or location
in any way, including, but not limited to:
(1)Â
The sale, lease or sublease of the business;
(2)Â
The transfer of shares, securities or interests that constitute a
controlling interest in the business, whether by sale, exchange or
similar means; or
(3)Â
The establishment of a trust, gift or other similar legal devise
that transfers ownership or control of the business, except for a
transfer by bequest or other operation of law upon the death of the
licensee or a person possessing the ownership or control of the licensee.
A.Â
The operator of each sexually oriented business shall submit an application
to the City and Town Clerk together with an application fee of $1,000
prior to the commencement of business. There is no initial application
fee for existing establishments. The City and Town Clerk shall date
stamp the application and shall promptly deliver the application to
the Review Committee. The Review Committee shall include the Chief
of Police, the Director of Health and the Director of Land Use. The
application shall be made upon a form prepared by the Review Committee
and disseminated by the City and Town Clerk.
[Amended 6-7-2021 by Ord. No. 12-21]
B.Â
The application shall be signed and filed by a person having direct
control or management of the proposed sexually oriented business.
In instances where the applicant is a partnership, limited-liability
company or corporation, the application shall be signed and filed
by a duly authorized partner, member, manager, officer, director,
or majority shareholder of such entity, as the case may be. The application
shall be sworn to be true and correct by the applicant.
C.Â
The applicant for a license shall furnish the following information:
(1)Â
Name and business and residence address of the applicant, owner,
operator, manager and any other person having direct control or management
of the sexually oriented business, including all fictitious names;
if the applicant is a partnership, the names of all general partners;
if the applicant is a limited-liability company, the names of all
members and managers of such company; if the applicant is a corporation,
the names of all officers, directors and shareholders holding a ten-percent
or greater interest in the total number of shares of such corporation;
(2)Â
Name and business and residence address of the spouse of each individual named in Subsection C(1) of this section;
(3)Â
Name and address of all employees and any other persons directly
involved in the operation of the sexually oriented business, including
all fictitious names;
(4)Â
Written proof that the applicant is at least 18 years of age;
(5)Â
A recent photograph of the applicant;
(6)Â
The applicant's driver's license number and social security number
or federal employer identification number;
(7)Â
If the applicant is:
(a)Â
A partnership, the application shall be accompanied by the partnership
agreement, if any.
(b)Â
A limited partnership, the application shall specify the name
of the partnership, the date and state of the filing of its certificate
of limited partnership, and the name and address of its statutory
agent for service of process, and shall be accompanied by a copy of
the partnership agreement, if any, and by evidence that such partnership
is in good standing under the laws of the state.
(c)Â
A limited-liability company, the application shall specify the
name of the company, the date and state of the filing of its articles
of organization, and the name and address of its statutory agent for
service of process, and shall be accompanied by a copy of the operating
agreement, if any, and by evidence that such company is in good standing
under the laws of the state.
(d)Â
A corporation, the application shall specify the name of the
corporation, the date and state of incorporation, and the name and
address of its statutory agent for service of process, and shall be
accompanied by a copy of its bylaws, if any, and by evidence that
such corporation is in good standing under the laws of the state.
(e)Â
Operating under a fictitious name, the application shall be
accompanied by a copy of the applicant's recorded trade name certificate.
(8)Â
The applicant's sexually oriented business or adult entertainment
license or permit history, which shall include, but not be limited
to, whether such person is currently licensed or has previously operated
in this or another municipality or state under license; the names
and locations of such businesses; whether the applicant has had such
license suspended or revoked; the dates of and reasons for such suspension
or revocation; and the business entity or trade name under which the
applicant operated that was subject to the suspension or revocation.
Such history shall include any entity of which the applicant was a
partner, member, officer, director or shareholder;
(9)Â
Any criminal convictions of the applicant, operator, employees and
other persons directly involved in the management or control of the
sexually oriented business to any crime involving moral turpitude,
prostitution, obscenity or other sex-related crimes in any jurisdiction
within three years of the date of the filing of the application. Such
crimes include, but are not limited to, obscenity, child pornography,
prostitution, patronizing a prostitute, promoting or permitting prostitution
and sexual assault, in the state, being C.G.S. §§ 53a-194,
53a-196, 53a-196a, and 53a-196b (obscenity); C.G.S. §§ 53a-196c
and 53a-196d (child pornography); C.G.S. §§ 53a-82,
53a-83 and 53a-83a (prostitution, patronizing a prostitute, and patronizing
a prostitute from a motor vehicle); C.G.S. §§ 53a-86,
53a-87, 53a-88 and 53a-89 (promoting or permitting prostitution);
and C.G.S. §§ 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a,
53a-72b and 53a-73a (sexual assault);
(10)Â
The location of the sexually oriented business to be operated
by the applicant, including the street address, legal description
of the property, and telephone number, if any;
(11)Â
The exact nature of the entertainment to be conducted at the
sexually oriented business;
(12)Â
A sketch or diagram showing the configuration of the premises
drawn to a designated scale and with marked dimensions of the interior
of the premises, including a statement of total floor space occupied
by the business. Such sketch or diagram shall include, without limitation,
all doors, windows, bars, stages, manager's stations, restrooms, dressing
rooms, booths, cubicles, rooms, studios, compartments, stalls, overhead
lighting fixtures and any areas where patrons are not permitted; and
(13)Â
A statement by the applicant that he is familiar with the provisions
of this article, is in compliance with them, and consents to the authority
of the City in licensing and regulating the proposed sexually oriented
business.
D.Â
The Review Committee shall have the right to request additional information
and documentation of the applicant and the proposed business to support
or clarify any information previously provided.
E.Â
If a license to operate a sexually oriented business is granted,
the information furnished in the application, including employee information,
shall be updated within 30 days of any material changes. Such update
shall be filed at the office of the City and Town Clerk, who shall
promptly forward such update to the Review Committee.
A.Â
The Review Committee shall be responsible for investigating, granting,
denying, renewing, suspending and revoking all sexually oriented business
applications and licenses pursuant to this article. Upon receipt of
a properly completed application with all required attachments, the
Review Committee shall immediately forward copies of such application
to the following City officials for their investigation:
(1)Â
The Chief of Police shall investigate the criminal convictions, qualifications
and suitability of the applicant to be licensed and shall inspect
the premises for compliance with all laws and regulations.
(2)Â
The Fire Marshal shall investigate the compliance of the proposed
premises with all applicable fire codes and laws.
(3)Â
The Chief Building Official shall investigate the compliance of the
proposed premises with all applicable building codes and laws.
(4)Â
The Director of Health shall investigate the compliance of the proposed
premises with all applicable public health codes and laws.
B.Â
Within 30 days of the date the application was filed, all such investigations
to be performed pursuant to Subsection (A) of this section shall be
completed. At the conclusion of each investigation, each City official
shall indicate on the photocopy of the application his approval or
disapproval of the application, state the reasons for any disapproval,
date it, sign it, and return it immediately to the Review Committee.
A City official shall disapprove an application if he finds that the
proposed sexually oriented business will be in violation of any provision
of any statute, code, article, regulation or other law in effect in
the City, including this article.
C.Â
Within 45 days of the date the application was filed, the Review
Committee shall render a decision approving or denying such application
and shall file such decision with the City and Town Clerk and mail
such decision to the applicant by certified mail, return receipt requested.
If the Review Committee denies the application, it shall state in
writing the reasons for such denial. All copies of the investigations
performed pursuant to Subsection (B) of this section shall be attached
to the Review Committee's decision.
D.Â
The Review Committee shall issue to the applicant a license to operate
a sexually oriented business within 45 days of the date the application
was filed if all requirements for a sexually oriented business described
in this article are met, unless he finds that:
(1)Â
The applicant is under 18 years of age.
(2)Â
The applicant or any other person who will be directly engaged in the management and operation of the business has been convicted in this or any other state of any of the crimes specified in § 223-15C(9), regardless of the pendency of any appeal, within three years of the date the application was filed.
(3)Â
Within five years of the date the application was filed, the applicant
or his spouse has been denied a license by the City to operate a sexually
oriented business, has had a license revoked by the City, or has failed
to correct any material violation of this article of which the licensee
has received written notice, for more than 30 days.
(4)Â
Within three years of the date the application was filed, the applicant
or his spouse has had a license to operate a sexually oriented business
denied or revoked by another municipality or state.
(5)Â
The applicant or his spouse is overdue on payment to the City of
any taxes, fees, fines or other penalties relating to the sexually
oriented business or the licensed premises.
(6)Â
The business as proposed by the applicant, if permitted, would not
have complied with all applicable statutes, codes, ordinances, laws
and regulations, including, but not limited to, the fire, building,
health, and zoning codes of the City, and this article. If the premises
are not in compliance, the applicant shall be advised of the reasons
in writing and what, if any, measures the applicant can take to bring
the premises into compliance for a license to issue.
(8)Â
The applicant has failed to complete the license application as specified in § 223-15C, has failed to provide any supporting or clarifying documentation when requested by the Review Committee, or has provided materially false or misleading information in the application.
(9)Â
The application fee has not been paid.
(10)Â
The granting of the application would violate a statute, ordinance
or court order.
(11)Â
The applicant, if a limited partnership, limited-liability company
or corporation, is not in good standing under the laws of the state.
E.Â
Any failure of the license to issue within 45 days of the date the
application was filed shall constitute a denial subject to appeal.
F.Â
If the sexually oriented business application is denied, the City
shall retain 1/2 of the permit fee for expenses incurred in the investigation
of the application and shall return the remainder to the applicant.
G.Â
When an application is denied solely for reasons stated in Subsection
(D)(6) of this section and such violation is correctable, the applicant
shall be given an additional 30 days from the date of such notification
of denial to bring the premises into compliance. Upon verification
by inspection that the correction has been made, which shall be determined
no later than 48 hours after receipt by the Review Committee of written
notice of such correction, a license shall be issued to the applicant
so long as no new violations or other disqualifying factors have occurred
within such 30 days.
H.Â
As a condition of the license, the entire licensed premises shall
be open to random physical inspections for compliance within this
article by any inspector during all hours when the premises are open
for business. Any refusal to allow such an inspection shall constitute
a violation of this article.
I.Â
The license, if granted, shall state on its face the name and residence
address of the person to whom it is granted, the expiration date,
the address of the sexually oriented business, and the department
or public official and telephone number to report any violation of
this article. The license shall also include a notice that the subject
premises are subject to random inspections by inspectors of the City
for compliance with this article.
J.Â
The license shall be posted in a conspicuous place at or near the
entrance to the sexually oriented business so that it may be easily
read at all times.
A.Â
Each license issued to a licensee shall expire one year from the
date it is issued, unless it is renewed upon application of the licensee
accompanied by payment of a renewal fee of $500. Such application
and application fee shall be submitted by the licensee to the City
and Town Clerk at least 30 days before the expiration date of the
license, but not more than 90 days before. Provided the application
is filed within such time and the renewal fee paid, the Review Committee
shall, prior to the expiration of the previous license, renew the
license for the same licensee at the same location for an additional
one year, unless the random inspection reports in the licensee's file
reveal uncorrected violations of this article or uncorrected violations
of any fire, building, health or zoning codes or regulations, of which
the licensee has received written notice, or any condition under § 223-16(D)
that could have been grounds for denial of the original application
has since become true. If renewed, the Review Committee shall mail
the renewed license to the licensee prior to the expiration date of
the previous license. If not renewed, the Review Committee shall mail
a notice of nonrenewal to the licensee by certified mail, return receipt
requested, prior to the expiration date of the previous license, stating
the reasons for such nonrenewal. No sexually oriented business shall
continue operations without a renewed license. The Review Committee's
failure to act within 90 days of submission shall result in automatic
renewal.
B.Â
If there are uncorrected violations of this article or uncorrected
violations of any fire, building, health or zoning codes or regulations,
of which the licensee has received written notice, the license renewal
shall be delayed for a maximum of 30 days beyond the original expiration
date in order for all corrections to be completed and inspections
done to determine compliance. If the licensee does not make such corrections
of violations within such 30 days, no license renewal shall be issued.
The Review Committee shall mail a notice of nonrenewal to the licensee
by certified mail, return receipt requested, within five days after
the extended thirty-day period, stating the reasons for such nonrenewal.
C.Â
Notwithstanding the provisions in Subsection B of this section, in no instance shall a renewal be issued to a licensee who, within the one-year period of the previous license, has had two or more material violations of this article, to which the licensee has received written notice, or has had one or more uncorrected material violations of this article pending for over 30 days.
D.Â
Should a license not be renewed for any violation of this article,
no license shall issue for the same licensee for five years from the
expiration of the previous license.
A.Â
The Review Committee may suspend a sexually oriented business license
for a period not to exceed 30 days upon his determination that a licensee,
operator or employee has materially violated any part of this article.
The Review Committee shall issue such suspension in writing stating
the reasons therefor and shall notify the licensee by certified mail,
return receipt requested, addressed to the licensee at his business
or residence address, or by service by any process server at the usual
place of abode of the licensee or at the licensed premises. If a suspension
is issued for a correctable violation, the Review Committee, within
48 hours of his receipt of written notice that the correction has
been made, shall terminate such suspension upon verification by inspection.
No sexually oriented business shall continue operations while under
suspension.
B.Â
The Review Committee shall revoke any license where any of the following
occur:
(1)Â
It is discovered that materially false or misleading information
or data was given on, or material facts were omitted from, any application
for a sexually oriented business license.
(2)Â
Any taxes, fees, fines or other penalties relating to the licensed
premises or required to be paid by this article become more than 30
days delinquent.
(3)Â
A licensee, operator, employee or other person directly involved in the management or control of the sexually oriented business has been convicted of any crime specified in § 223-15C(9).
(4)Â
A licensee has had, within a one-year period, two or more material
violations of this article, for which the licensee has received written
notice.
(5)Â
A licensee has one or more uncorrected material violations of this
article pending for over 30 days, for which the licensee has received
written notice.
(6)Â
A licensee has failed to correct within 30 days any violation for
which his license was suspended pursuant to Subsection (A) of this
section.
(7)Â
The license or any interest therein is transferred in any way.
(8)Â
A licensee, operator or employee has knowingly allowed any live performance
or conduct featuring any specified sexual activities to occur on the
licensed premises.
(9)Â
A licensee, operator or employee has knowingly allowed any illegal
activity to occur on the licensed premises, including, but not limited
to, prostitution, gambling, or the possession, use or sale of controlled
substances.
(10)Â
A licensee, operator or employee has knowingly operated the
sexually oriented business while the business's license was under
suspension.
C.Â
At least 10 days prior to the revocation of any license, the Review
Committee shall issue such revocation in writing stating the reasons
therefor and shall notify the licensee by certified mail, return receipt
requested, addressed to the licensee at his business or residence
address, or by service by any process server at the usual place of
abode of the licensee or at the licensed premises.
A.Â
Within 20 days of receipt of notification of a denial, the decision
of the Review Board may be appealed to the Superior Court.
B.Â
During the pendency of any appeal of a nonrenewal, suspension or
revocation, the operations of the sexually oriented business may be
maintained by the licensee, unless otherwise ordered by the Superior
Court.
A.Â
No sexually oriented business shall be permitted on a site that is
less than 1,000 feet from any other site containing a sexually oriented
business.
B.Â
No sexually oriented business shall be permitted on a site that is
less than 1,000 feet from any site containing a church, school, public
building, public park or recreation area.
C.Â
No sexually oriented business shall be permitted on a site that is
less than 1,000 feet from any residentially zoned land as defined
in the City zoning regulations.
D.Â
No sexually oriented business shall be permitted within the same
building, structure or portion thereof that is used for residential
purposes or that contains another sexually oriented business.
E.Â
All distances contained in this section shall be measured by taking
the nearest straight line between the respective lot boundaries of
each site.
F.Â
Section 41 of the City Zoning Code, as may be amended from time to
time, is hereby incorporated by reference as a part of this article,
and any violation of such regulations shall be deemed a violation
of this article.
A.Â
Any sexually oriented business lawfully operating on the effective
date of the ordinance from which this article is derived but in violation
of this section and/or Section 41 of the Zoning Code shall be deemed
a nonconforming use. No nonconforming use shall be increased, enlarged,
extended or altered except to make it a conforming use.
B.Â
Any sexually oriented business lawfully operating as a conforming
use is not rendered a nonconforming use by the subsequent location
of any church, school, public building, public park or recreation
area within 1,000 feet of such business, or of any residentially zoned
land within 250 feet of such business. However, this subsection applies
only to the renewal of a valid license and does not apply to a license
application submitted after a license has expired or has been revoked.
C.Â
Any existing sexually oriented business on the effective date of the ordinance from which this article is derived shall submit an application for a license pursuant to § 223-14 and shall comply with all regulations herein within 60 days of the effective date of the ordinance from which this article is derived. Otherwise, such existing sexually oriented business shall cease operations.
The following requirements shall apply to all sexually oriented
businesses within the City:
A.Â
Generally.
(1)Â
No licensee, operator or employee of a sexually oriented business
shall perform or permit to be performed, offer to perform, or allow
patrons to perform on the licensed premises any live performance or
conduct featuring any specified sexual activities.
(2)Â
Every sexually oriented business shall comply with all applicable
statutes, codes, ordinances, laws and regulations, including, but
not limited to, the fire, building, health, and zoning codes of the
City and state.
(3)Â
Every sexually oriented business shall be physically arranged in
such a manner that the entire interior portion of any room or other
area used for the purpose of viewing adult books, adult videos or
adult novelties or other types of adult entertainment shall be clearly
visible from the common areas of the premises. Visibility into such
areas shall not be blocked or obscured by doors, curtains, partitions,
drapes or any other obstruction whatsoever. Such areas shall be readily
accessible at all times to employees and shall be continuously open
to view in their entirety. It shall be a violation of this article
to install enclosed booths, cubicles, rooms or stalls within sexually
oriented businesses, for whatever purpose, but especially for the
purpose of providing for the secluded viewing of adult-oriented motion
pictures or other types of adult entertainment.
(4)Â
Every sexually oriented business, including common areas, entryways,
parking areas, restrooms, and any room or other area used for the
purpose of viewing adult-oriented motion pictures or other types of
adult entertainment, shall be well-lighted. The entire 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 one footcandle as measured at the
floor or ground level. It shall be the duty of the operator and his
agents to ensure that such illumination is maintained at all times
that any patron is present on the premises.
(5)Â
No booths, cubicles, rooms or stalls used for the purpose of viewing
adult-oriented motion pictures or other types of adult entertainment
shall be occupied by more than one person at any one time. No holes
shall be allowed in the walls or partitions that separate each such
room from any adjoining room.
(6)Â
No sexually oriented business shall be conducted in a manner that
permits the observation of any material depicting specified anatomical
areas or specified sexual activities from outside of the building
that houses the sexually oriented business.
(7)Â
No sexually oriented business shall advertise the availability at
such business of any activity that would be in violation of this article
or any state or federal law, nor shall any exterior sign, display,
decoration, show window or other advertising of such business contain
any material depicting, describing or relating to specified anatomical
areas or specified sexual activities.
(8)Â
No alcoholic beverage or other intoxicant shall be displayed, served,
ingested or sold on the premises of any sexually oriented business
unless permitted by the state. No licensee, operator or employee shall
be under the influence of any alcoholic beverage or other intoxicant
while working at a sexually oriented business. No patron who is under
the influence of any alcoholic beverage or other intoxicant shall
be allowed to enter any sexually oriented business.
(9)Â
No gambling shall be permitted by any person in any sexually oriented
business.
B.Â
Employees.
(1)Â
The licensee and operator shall be responsible for the conduct of
all employees while on the licensed premises. Any act or omission
of any employee constituting a violation of the provisions of this
article shall be deemed the act or omission of the licensee and operator,
when such licensee or operator knew or should have known of such act
or omission, for purposes of determining whether the operating license
shall be renewed, suspended or revoked and whether the licensee and
operator shall be subject to the penalties imposed by this article.
(2)Â
No licensee or operator shall knowingly employ in any sexually oriented
business any person who, within three years of the commencement of
such employment, has been convicted in this or any other state of
any of the crimes specified in § 223-15(C)(9), regardless
of the pendency of any appeal.
C.Â
Minors.
(1)Â
No licensee, operator or employee of a sexually oriented business
shall allow or permit any minor to enter into or in any way loiter
in or on any part of the licensed premises, purchase goods or services
at the licensed premises, or work at the licensed premises as an employee.
(2)Â
Every sexually oriented business shall display a sign outside each
entrance of such business bearing the words "Sexually Oriented Business.
Persons Under 18 Not Admitted." in legible letters between two inches
and six inches tall.
In addition to the requirements contained in § 223-22, the following requirements shall apply to all sexually oriented businesses within the City containing live adult entertainment:
A.Â
No person shall perform live adult entertainment for patrons of a
sexually oriented business except upon a stage at least 18 inches
above floor level and separated from any and all such patrons by a
minimum distance of four feet or as approved by the Liquor Division
of the State Department of Consumer Protection.
B.Â
Separate dressing room facilities for male and female entertainers
shall be provided that shall not be occupied or used in any way by
any one other than such entertainers.
C.Â
No entertainer shall expose any specified anatomical areas to any
patron of a sexually oriented business either before or after a performance,
including, but not limited to, when such entertainer is entering or
existing the stage.
D.Â
No entertainer, either before, during or after a performance, shall
have physical contact with any patron of a sexually oriented business
while on the licensed premises.
E.Â
No employee of any sexually oriented business shall engage in any
live adult entertainment while acting as a waiter, host or bartender
for such business.
In addition to the requirements contained is § 223-22, the following requirements shall apply to all massage parlors within the City:
A.Â
Facility requirements.
(1)Â
Construction of rooms used for toilets, tubs, steam baths and showers
shall be waterproofed with approved waterproof materials.
(2)Â
Toilet facilities shall be provided in convenient locations. When
five or more persons of different sexes are on the premises at the
same time, separate toilet facilities shall be provided. Toilets shall
be designated as to the sex accommodated therein.
(3)Â
Lavatories or wash basins provided with both hot and cold running
water shall be installed in either the toilet room or vestibule. Lavatories
or wash basins shall be provided with soap in a dispenser and with
sanitary towels.
B.Â
Operating requirements.
(1)Â
Every portion of the massage parlor, including appliances and apparatus,
shall be kept clean and operated in a sanitary condition. Adequate
lighting shall be provided, and each room or enclosure where a massage
is administered shall have an illumination of not less than one footcandle
as measured at the floor level while such room or enclosure is occupied.
(2)Â
All employees of the massage parlor shall be clean and wear clean
outer garments, which use is restricted to the massage parlor. Provisions
for a separate dressing room for each sex must be available on the
licensed premises with individual lockers for each employee. Doors
to such dressing rooms shall open inward and shall be self-closing.
(3)Â
All employees and masseurs shall be modestly attired. Diaphanous,
flimsy, transparent, form-fitting, or tight clothing is prohibited.
Clothing must cover the employee's or masseur's chest at all times.
Hemlines of skirts, dresses or other attire may be no higher than
three inches above the top of the knee.
(4)Â
All specified anatomical areas of patrons must be covered by towels,
cloth or undergarments when in the presence of any employee or masseur.
It shall be unlawful for any person in a massage parlor to expose
his specified anatomical areas to any other person or for any person
to expose the specified anatomical areas of another person.
(5)Â
It shall be unlawful for any person in a massage parlor to engage
in any specified sexual activities or to place his hand upon, to touch
with any part of his body, to fondle in any manner, or to massage
any specified anatomical areas of any other person.
(6)Â
All massage parlors shall be provided with clean, laundered sheets
and towels in sufficient quantity, which shall be laundered after
each use thereof and stored in an approved sanitary manner.
(7)Â
Wet and dry heat rooms, shower compartments and toilet rooms shall
be thoroughly cleaned each day business is in operation. Bathtubs
shall be thoroughly cleaned after each use.
(8)Â
No massage parlor shall place, publish, or distribute or cause to be placed, published, or distributed any advertising material that depicts any portion of the human body or contains any written text that would reasonably suggest to prospective patrons that any services are available other than those services described in § 223-12, or that employees or masseurs are dressed in any manner other than described in Subsection B(2) of this section.
(9)Â
All services enumerated in § 223-12 shall be performed in a cubicle, room, booth or area within the massage parlor, which cubicle, room, booth or area shall have transparent doors or walls so that all activity therein shall be visible from outside the same.
(10)Â
No massage parlor shall carry on, engage in, or conduct business
on Sunday nor on any other day before 8:00 a.m. or after 9:00 p.m.
(11)Â
A full schedule of service rates shall be posted in a prominent
place within the massage parlor in such a manner as to come to the
attention of all patrons. No charges other than the specified rates
for specified services shall be allowed, and all patrons shall be
notified of the full cost of services prior to the rendering of any
service.