[HISTORY: Adopted by the City Council of the City of West
Haven 9-9-1996 by Ord. No. 360. Amendments noted where applicable.]
A.
There are or may be adult-oriented establishments located in the
City of West Haven ("city") which will require special supervision
from the city's public safety agencies in order to protect and
preserve the health, safety and welfare of the patrons of such establishments,
as well as the health, safety and welfare of the city's citizens.
This is so because such businesses may and do generate secondary effects
which are detrimental to neighborhoods.
B.
Statistics and studies performed by a substantial number of cities
and towns in the United States indicate that:
(1)
Large numbers of persons frequent such adult-oriented establishments,
especially those which provide closed booths, cubicles, studios and
rooms for private viewing of so-called "adult" motion pictures and/or
video tapes and/or live entertainment.
(2)
Such closed booths, cubicles, studios and rooms have been used by
patrons, clients or customers of such adult-oriented establishments
for the purpose of engaging in certain sexual acts.
(3)
Male and female prostitutes have been known to frequent such establishments
in order to provide sex for hire to the patrons, clients or customers
of such establishments within such booths, cubicles and rooms.
(4)
Doors, curtains, blinds and/or other closures installed in or on
the entrances and/or 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 sexual acts therein with prostitutes and others,
thereby promoting and encouraging prostitution and the commission
of sexual acts which cause blood, semen and urine to be deposited
on the floors and/or 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)
The reasonable regulation and supervision of such adult-oriented
establishments tends to discourage such sexual acts and prostitution
and thereby promotes the health, safety and welfare of the patrons,
clients and customers of such establishments.
C.
The continued unregulated operation of adult-oriented establishments, including without limitation those specifically cited at Subsection A of this chapter, is and would be detrimental to the general welfare, health and safety of the citizens of the city.
D.
The Constitution and laws of the State of Connecticut grant to the
city powers, and in particular police power, to enact reasonable legislation
and measures to regulate and supervise adult-oriented establishments
as hereinafter defined in order to protect the public health, safety
and welfare.
E.
It is not the intent of the City Council, in enacting this chapter,
to deny to any person rights to speech protected by the United States
and/or State Constitutions, nor is it the intent of the Board to impose
any additional limitations or restrictions on the contents of any
communicative materials, including sexually oriented films, video
tapes, books and/or other materials. Further, by enacting this chapter,
the City Council does not intend to deny or restrict the rights of
any adult to obtain and/or view any sexually oriented materials protected
by the United States and/or State Constitutions, 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.
For the purpose of this chapter, the words and phrases used
herein shall have the following meanings, unless otherwise clearly
indicated by the context:
Includes, without limitation, adult media outlet, adult motion-picture
theaters, adult mini-motion-picture theaters, adult newsracks and
adult retail establishments and further means any premises to which
the public, patrons or members are invited or admitted and which are
so physically arranged as to provide booths, cubicles, rooms, studios,
compartments or stalls separate from the common areas of the premises
for the purpose of viewing adult-oriented motion pictures, or any
premises wherein an entertainer provides adult entertainment to a
member of the public, a patron or a member, when such adult entertainment
is held, conducted, operated or maintained for a profit, direct or
indirect. An adult-oriented establishment further includes, without
limitation, 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.
Any exhibition of any adult-oriented motion pictures, live
performance, display or dance of any type, which as a significant
or substantial portion of such performance any actual or simulated
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
are offered customers.
A business engaging in the barter, rental or sale of items
consisting of books, magazines, periodicals, other printed matter,
pictures, slides, records, audio tapes, videotapes, compact discs,
motion pictures, films or other media, if such business is open to
the public, patrons or members, or if a substantial or significant
portion of such items are distinguished or characterized by an emphasis
on the depiction or description of specified sexual activities or
specified anatomical areas. For the purposes of this definition, factors
indicating that a substantial or significant portion of such a business
is devoted to the sale or rental of such items include without limitation
any one or more of the following criteria:
Fifty percent or more of all inventory consists of such items
at any time.
Fifty percent or more of the merchandise displayed for sale
consists of such items at any time;
Fifty percent or more of the stock in trade consists of such
items at any time.
Fifty percent or more of the floor area of the business (not
including storerooms, stock areas, bathrooms, basements or any portion
of the business not open to the public) is devoted to such items at
any time.
Fifty percent or more of the sales, measured in dollars over
any consecutive ninety-day period, is derived from such items.
Fifty percent or more of the number of sales transactions, measured
over any consecutive ninety-day period, is of such items.
Fifty percent or more of the dollar value of all merchandise
displayed at any time is attributable to such items.
An enclosed building with a capacity of 50 or more persons
regularly used for presenting material distinguished or characterized
by an emphasis on matter depicting, describing or relating to specified
sexual activities or specified anatomical areas, as defined below,
for observation by patrons therein.
An enclosed building with a capacity of less than 50 persons
regularly used for presenting material distinguished or characterized
by an emphasis on matter depicting, describing or relating to specified
sexual activities or specified anatomical areas, as defined below,
for observation by patrons therein.
Any coin- or card-operated device that offers for sale by
dispensing printed material which is distinguished or characterized
by its emphasis on matter depicting, describing or relating to specified
sexual activities or specified anatomical areas.
A business which offers for sale or rent instruments, devices,
gifts or paraphernalia which are designed or marketed for use in connection
with specified sexual activities, clothing that graphically depicts
specified anatomical areas or any of the materials sold or rented
in an adult media outlet as defined above, if a substantial or significant
portion of such items are distinguished or characterized by their
emphasis on matter depicting, describing or relating to specified
sexual activities or specified anatomical areas. For purposes of this
definition, a substantial or significant portion of a business shall
be determined by reference to the factors, without limitation, set
forth in the definition of "adult media outlet." In determining whether
an item is designed or marketed for use in connection with specified
sexual activities, the following guidelines may be considered:
Expert testimony as to the principal use of the item.
Evidence concerning the total business of a person or business
establishment and the type of merchandise involved in the business.
National and local advertising concerning the use of the item.
Evidence of advertising concerning the nature of the business
establishment.
Instructions, graphics or other material contained on the item
itself or on the packaging materials for the item.
The physical or structural characteristics of the item.
The manner in which the item is displayed, including its proximity
to other regulated merchandise or signature relating to items in a
display area.
The Chief of Police of the city or his designated agent.
The City Council of the City of West Haven, Connecticut.
Any and all persons, including independent contractors, who
work in or at or render any services directly related to the operation
of an adult-oriented establishment.
Any person who provides entertainment within an adult-oriented
establishment as defined in this section, whether or not a fee is
charged or accepted for entertainment and whether or not entertainment
is provided as an employee or as an independent contractor.
An employee of the City Police Department, Health Department,
Fire Department, including the Fire Marshal, Building Department,
the Zoning Enforcement Officer and/or any other city employee designated
by the Chief of Police, who shall hereby be authorized to inspect
premises regulated under this chapter and to take the required actions
authorized by this chapter in case of violations being found on such
premises and to require corrections of unsatisfactory conditions found
on said premises.
A person under the age of 18 years.
Any person or any proprietor, shareholder, general partner
or limited partner who holds 25% or more of the shares or partnership
interest of any business which is operating, conducting, owning or
maintaining an adult-oriented establishment.
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 which denote 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 which 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 which describe and
report different cultures and which, from time to time, publish or
show photographs or depictions of nude or semi-nude persons when describing
cultures in which nudity or seminudity is indigenous to the population.
Includes any of the following:
Includes any of the following:
The sale, lease or sublease of the business;
The transfer of securities which constitute a controlling interest
in the business, whether by sale, exchange, or similar means; or
The establishment of a trust, gift or other similar legal device
which transfers the ownership or control of the business, except for
transfer by bequest or other operation of law upon the death of the
person possessing ownership or control.
A.
Responsibilities of the operator.
(1)
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 operator if such act or omission occurs either with the authorization,
knowledge or approval of the operator or as a result of the operator's
negligent failure to supervise the employee's conduct, and the
operator shall be punishable for such act or omission in the same
manner as if the operator committed the act or caused the omission.
(2)
An operator of an adult-oriented establishment shall be responsible
for the conduct of all employees while on the premises of such establishment,
and 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 operator for purposes of determining whether the operator shall
be subject to the penalties imposed by this chapter.
(3)
No operator or employee of an adult-oriented establishment shall
allow or permit any minor or intoxicated person to loiter in any part
of such establishment, including parking lots immediately adjacent
to such establishment used by patrons of such adult-oriented establishment.
(4)
Except as hereinafter provided for preexisting facilities, every
adult-oriented establishment doing business in the city on or after
January 1, 1996, shall be well-lighted at all times and be physically
arranged in such a manner that the entire interior portion of the
booths, cubicles, rooms or stalls wherein adult entertainment is provided
shall be clearly visible from the common areas of the premises, and
visibility into such booths, cubicles, rooms or stalls shall not be
blocked or obscured by doors, curtains, partitions, drapes or any
other obstruction whatsoever. On the effective date of this chapter,
it shall be unlawful to install enclosed booths, cubicles, rooms or
stalls within adult-oriented establishments for the purpose of providing
secluded viewing of adult-oriented motion pictures or other types
of adult-oriented entertainment. However, preexisting establishments
with enclosed booths on the effective date shall be subject to the
following regulations, and no person shall operate an establishment
with booths unless each of the following administrative requirements
is met:
(a)
A light level of no less than two footcandles at floor level
is maintained in every portion of said establishment.
(b)
A minimum of one toilet and wash basin shall be provided for
the patrons in every such establishment. Each wash basin shall be
provided with soap or detergent and sanitary towels placed in permanently
installed dispensers. A trash receptacle shall be provided in each
toilet room.
(c)
In toilet rooms, a waterproof floor covering shall be provided
which extends up the walls at least six inches and shall be covered
at the floor-wall juncture with at least a three-eighths-inch radius.
Walls of toilet rooms shall be smooth, waterproof and kept in good
repair.
(d)
All walls, ceilings, floors, booths and all other physical facilities
shall be in good repair and maintained in a clean and sanitary condition.
Toilet rooms shall be thoroughly cleaned at least once each day the
business is in operation.
(e)
All establishments shall be so equipped, maintained and operated
as to effectively control the entrance, harborage and breeding of
vermin, including flies. When flies or other vermin are present, effective
control measures shall be instituted for their control or elimination.
(f)
All walkways, aisles and hallways shall be maintained free of
any obstruction such as a door, curtain, panel, board, slat, ribbon,
cord, rope, chain or other device unless the area is out of service
prior to or while being cleaned or repaired, in which case a sign
shall indicate it is closed to all customers or patrons.
(g)
A sign setting forth the following information shall be maintained
in a conspicuous location in each booth: "NOTICE: It is unlawful for
this booth to be occupied by more than one person at any one time
or for any person to operate this device unless the door is closed
and locked." All such signs shall be at least six inches by eight
inches in size and be printed with dark ink upon a light contrasting
background with letters at least 1/4 inch in height.
(h)
There shall be a system of monitoring all areas of such booths
either by direct viewing or by a system of video monitoring which
allows viewing of each monitored area at least every 60 seconds.
(i)
There shall not be any aperture which permits contact or communication
between occupants of any two or more booths. If an administrative
inspection by any city inspector reveals any such aperture in a booth,
the license for such establishment shall be immediately subject to
suspension or revocation.
(j)
There shall be a light or lighted sign on the exterior of each
booth which indicates whether a showing device is in use.
(k)
Booths shall be fully enclosed and shall have doors to ensure
the privacy of the individual occupant therein, except that such doors
shall extend downward no further than 12 inches above the floor. All
such booths shall have an interlock mechanism which prevents activation
of a showing device unless the booth door is closed and locked.
(5)
Except as provided above with respect to preexisting facilities,
on or after January 1, 1996, the operator of each adult-oriented establishment
shall be responsible for and shall provide that any room or other
area used for the purpose of viewing adult-oriented motion pictures
or other types of live adult entertainment shall be well-lighted and
readily accessible at all times and shall be continuously open to
view in its entirety. The premises shall be equipped with overhead
lighting fixtures of sufficient intensity to illuminate every place
to which patrons are permitted access at an illumination of not less
than one footcandle as measured at the floor level. It shall be the
duty of the operator and his or her employees to ensure that the illumination
described above is maintained at all times that any patron is present
in the premises.
(6)
The operator shall ensure compliance of the adult-oriented establishment
and its patrons with the provisions of this chapter.
B.
Inspections. An operator or an applicant for a license to operate an adult-oriented establishment shall permit representatives of the Police Department, Health Department, Fire Department, Building Department and/or any other inspector, as defined in § 64-2 of this chapter, to inspect the premises of an adult-oriented business for the purpose of ensuring compliance with the law, at all reasonable times.
On or before January 1, 1996, the operator of each adult-oriented
establishment shall be responsible for and shall acquire a license
from the city in the following manner:
A.
The operators, as defined in § 64-2 above, of each adult-oriented establishment shall submit an application to the Chief of Police, upon a form to be provided by the Chief of Police. Within 45 days after receipt of a completed application for an adult-oriented business license, the Chief of Police shall mail to the applicant a license or a notice of intent to deny. If he fails to do so, the license shall be deemed granted. The application shall be deemed complete when the Chief of Police has received the fees, all information required in § 64-5 below, a photograph and fingerprints of the applicant and, in the case of a corporation or other business organization, photographs and fingerprints of all persons for whom information is required under § 64-5 of this chapter.
B.
The premises must be inspected by the City Health Department, Fire
Department, Building Department and Zoning Enforcement Officer within
30 days of receipt of the complete application. If the premises are
in compliance with state and local health, fire and building codes
and zoning regulations, a license shall be issued within 45 days of
receipt of the complete application, unless the applicant is deemed
unqualified.
C.
An applicant shall be unqualified if one or more of the following
is true:
(1)
An applicant is under 18 years of age.
(2)
An applicant is overdue in payment to the city of taxes, fees, fines
or penalties assessed against him or imposed upon him in relation
to an adult-oriented business.
(3)
An applicant has failed to provide information required by § 64-5 of this chapter or has falsely answered a question or request for information on the application form.
(4)
An applicant has violated a provision of this chapter within two
years immediately preceding the application.
(5)
The premises to be used for the adult-oriented business are found
to violate City Health Department, Fire Department and Building Department
requirements, laws, ordinances or regulations within 30 days of the
filing of the application.
(6)
An applicant is in violation of the City of West Haven Zoning Regulations.
(7)
The license fee required by § 64-6 of this chapter has not been paid at the time the application was filed with the Chief of Police.
(8)
An applicant has been employed in an adult-oriented establishment
in a managerial capacity within the preceding 24 months and knowingly:
(a)
Permitted alcoholic liquor or cereal malt beverages to be illegally
brought or consumed upon the premises;
(b)
Permitted the illegal sale, distribution, delivery or consumption
of any controlled substance or illegal drug or narcotic on the premises;
(c)
Permitted any person under the age of 18 to be in or upon the
premises of an adult entertainment business; or
(d)
Permitted any act of prostitution or patronizing prostitution
as defined under state law on the premises.
(9)
An applicant has been convicted of or has plead nolo contendere to
a felony within five years immediately preceding the application or
has been convicted of or plead nolo contendere within two years immediately
preceding the application, where such misdemeanor involved sexual
assaults or batteries, prostitution, indecent exposure, sexual abuse
of a child, child pornography or sale or distribution of controlled
substances or illegal drugs or narcotics.
D.
If an applicant is deemed unqualified, said rejection shall be in writing and shall specifically state the evidence presented and reason for rejection and shall be sent to the applicant by registered mail, as further provided in § 64-12 of this chapter.
E.
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 business. The license shall be posted
in a conspicuous place at or near the entrance to the adult-oriented
business so that it may be easily read at any time.
A.
The application shall include the information called for in Subsection A(1) through (9) below. If the applicant is an enterprise, it shall designate an officer or partner as applicant. In such case, in addition to the information in Subsection A(1) through (9) below, the application shall state the date of formation of the organization and the information called for in Subsection A(2) through (6) of this section with respect to each officer, director, general partner and all other persons with authority to participate directly and regularly in management of the business, but such information need not be provided with respect to attorneys, accountants and other persons whose primary function is to provide professional assistance to the licensee.
(1)
The name, business location, business mailing address and phone number
of the proposed adult-oriented business establishment.
(2)
The full true name and any other names, aliases or stage names used
in the preceding five years.
(3)
Current residential mailing address and telephone number.
(4)
Written proof of age, in the form of a birth certificate, current
driver's license with picture or other picture identification
document issued by a governmental agency.
(5)
The issuing jurisdiction and the effective dates of any license or
permit relating to an adult-oriented business or adult service, whether
any such license or permit has been revoked or suspended and, if so,
the reason or reasons therefor.
(6)
All criminal charges, complaints or indictments in the preceding
five years which resulted in a conviction or a plea of guilty or nolo
contendere.
(7)
The name and address of the statutory agent or other agent authorized
to receive service of process.
(8)
The name(s) of the adult-oriented business manager(s) who will have
actual supervisory authority over the operations of the business.
(9)
An accurate, to scale but not necessarily professionally drawn, floor
plan of the business premises clearly indicating the location of one
or more manager's stations.
A license fee of $750 shall be submitted with the application
for a license. If the application is denied, 1/2 of the fee shall
be returned.
A.
Each license shall expire one year from the date of issuance and may be renewed annually by making application as provided in § 64-4 of this chapter. Application for renewal shall be made at least 30 days before the expiration date to allow city officials to review the application in a timely manner prior to expiration.
B.
An annual license renewal fee of $500 shall be submitted with the
application for renewal. If the application for renewal is denied,
1/2 of the total fees collected shall be returned.
C.
No adult-oriented establishment shall operate if its license expires
by lapse of time.
The Chief of Police shall suspend a license for a period not
to exceed 30 days if he determines that an operator or an employee
of an operator has violated any part of this chapter or violated any
state statute regarding the subject establishment.
A.
The Chief of Police shall revoke a license if a cause of suspension in § 64-8 occurs and the license has been suspended within the preceding 12 months.
B.
The Chief of Police shall revoke a license if he determines that:
(1)
An operator gave false or misleading information in the material
submitted during the application process;
(2)
An operator or an employee of an operator has illegally or negligently
permitted possession or use or sale of controlled substances on the
premises of the adult-oriented business;
(3)
An operator or an employee of an operator has knowingly or negligently
allowed or promoted prostitution on the premises of the adult-oriented-business;
(4)
An operator or an employee of an operator has knowingly operated
the adult-oriented establishment during a period of time when the
operator's license was suspended;
(5)
An operator or an employee of an operator has knowingly allowed or,
as a result of his or her negligent failure to supervise, has allowed
any act of sexual intercourse, sodomy, oral copulation, masturbation
or sexual contact to occur in or on the premises of the adult-oriented
establishment; or
C.
Any operator whose license is revoked shall not be eligible to receive
a license for one year from the date of revocation.
A.
Any person, partnership or corporation who or which is found to have
violated this chapter shall be fined a definite sum not exceeding
$90 for each such violation.
B.
Each violation of this chapter 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.
A.
An operator shall not transfer his or her license to another, nor
shall an operator operate an adult-oriented establishment under the
authority of a license at any place other than the address designated
in the application.
B.
The transfer of a license or any interest in a license
shall automatically and immediately revoke the license.
If the Chief of Police denies the issuance of a license, or suspends or revokes a license, he shall, within 10 days of his decision, send to the applicant or operator at the address listed on the application, by certified mail, return receipt requested, written notice of his decision and further shall specifically state the evidence presented, the reason for the decision and the right to an appeal. The aggrieved party may appeal the decision to the Board of Police Commissioners within 30 days of receipt of the notice. The Board must hear the appeal and render a decision within 45 days of receipt of the appeal. The aggrieved party may file an appeal from the Board of Police Commissioners directly to the Superior Court. Nothing in this section shall prevent the city from proceeding with an injunction action pursuant to § 64-13 hereof.
A person who operates or causes to be operated an adult-oriented
business without a valid license is subject to a suit for injunction.
