[Ord. of 5-7-2007][1]
(a)
Purpose. It is the purpose of this chapter to regulate sexually oriented
businesses in order to promote the health, safety, and general welfare
of the citizens of the City, and to establish reasonable and uniform
regulations to prevent the deleterious secondary effects of sexually
oriented businesses within the City. The provisions of this chapter
have neither the purpose nor effect of imposing a limitation or restriction
on the content or reasonable access to any communicative materials,
including sexually oriented materials. Similarly, it is neither the
intent nor effect of this chapter to restrict or deny access by adults
to sexually oriented materials protected by the First Amendment, or
to deny access by the distributors and exhibitors of sexually oriented
entertainment to their intended market. Neither is it the intent nor
effect of this chapter to condone or legitimize the distribution of
obscene material.
(b)
Findings and rationale. Based on evidence of the adverse secondary
effects of adult uses presented in hearings and in reports made available
to the Board of Aldermen, and on findings, interpretations, and narrowing
constructions incorporated in the cases of City of Littleton v. Z.J.
Gifts D-4, L.L.C., 541 U.S. 774 (2004); City of Los Angeles v. Alameda
Books, Inc., 535 U.S. 425 (2002); City of Erie v. Pap's A.M.,
529 U.S. 277 (2000); City of Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986); Young v. American Mini Theatres, 427 U.S. 50 (1976);
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. LaRue,
409 U.S. 109 (1972); and Charette v. Town of Oyster Bay, 2 Fed. Appx.
112 (2d Cir. 2001); Beal v. Stern, 184 F.3d 117 (2d Cir. 1999); Buzzetti
v. City of New York, 140 F.3d 134 (2d Cir. 1998); Marty's Adult
World v. Town of Enfield, 20 F.3d 512 (2d Cir. 1994); Hickerson v.
City of New York, 146 F.3d 99 (2d Cir. 1998); Casanova Entertainment
Group, Inc. v. City of New Rochelle, 165 Fed. Appx. 72 (2d Cir. 2006);
United States v. Kinzler, 55 F. 3d 70 (2d Cir. 1995); Gold Diggers,
LLC v. Town of Berlin, 469 F. Supp. 2d 43 (D. Conn. 2007); Centerfolds,
Inc. v. Town of Berlin, 352 F. Supp. 2d 183 (D. Conn. 2004); Derusso
v. City of Albany, 205 F. Supp. 2d 16 (N.D.N.Y. 2002); Gammoh v. City
of La Habra, 395 F. 3d 1114 (9th Cir. 2005); World Wide Video of Washington,
Inc. v. City of Spokane, 368 F. 3d 1186 (9th Cir. 2004); Ben's
Bar, Inc. v. Village of Somerset, 316 F. 3d 702 (7th Cir. 2003); Andy's
Rest. & Lounge, Inc. v. City of Gary, 466 F.3d 550 (7th Cir. 2006);
Heideman v. South Salt Lake City, 165 Fed. Appx. 627 (10th Cir. 2006);
H&A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. Feb.
22, 2007); DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir.
1997); Colacurcio v. City of Kent, 163 F.3d 545 (9th.Cir. 1998); Deja
Vu of Nashville v. Metro. Govt of Nashville & Davidson County,
466 F.3d 391 (6th Cir. 2006); and based upon reports concerning secondary
effects occurring in and around sexually oriented businesses, including,
but not limited to, Austin, Texas -1986; Indianapolis, Indiana —
1984; Garden Grove, California — 1991; Houston, Texas —
1983, 1997; Phoenix, Arizona — 1979, 1995-98; Chattanooga, Tennessee
— 1999-2003; Los Angeles, California — 1977; Whittier,
California — 1978; Spokane, Washington — 2001; St. Cloud,
Minnesota — 1994; McCleary Report — 2004; Littleton, Colorado
— 2004; Oklahoma City, Oklahoma — 1986; Dallas, Texas
— 1997, 2004; Greensboro, North Carolina — 2003; Amarillo,
Texas — 1977; New York, New York Times Square — 1994;
and the Report of the Attorney General's Working Group On The
Regulation Of Sexually Oriented Businesses, (June 6, 1989, State of
Minnesota), the Board of Aldermen finds:
(1)
Sexually oriented businesses, as a category of commercial uses,
are associated with a wide variety of adverse secondary effects including,
but not limited to, personal and property crimes, prostitution, lewdness,
public indecency, unsanitary conditions, potential spread of disease,
obscenity, illicit drug use and drug trafficking, negative impacts
on surrounding properties, blight, litter, and sexual assault and
exploitation.
(2)
Sexually oriented businesses should be separated from sensitive
land uses to minimize the impact of their secondary effects upon such
uses, and should be separated from other sexually oriented businesses,
to minimize the secondary effects associated with such uses and to
prevent an unnecessary concentration of sexually oriented businesses
in one area.
(3)
Each of the foregoing negative secondary effects constitutes
a harm which the City has a substantial government interest in preventing
and/or abating. This substantial government interest in preventing
secondary effects, which is the City's rationale for this chapter,
exists independent of any comparative analysis between sexually oriented
and nonsexually oriented businesses. Additionally, the City's
interest in regulating sexually oriented businesses extends to preventing
future secondary effects of either current or future sexually oriented
businesses that may locate in the City. The City finds that the cases
and documentation relied on in this chapter are reasonably believed
to be relevant to said secondary effects.
[1]
Editor's Note: Prior ordinance history includes portions
of Ordinance of 9-11-1995, 3-4-1996 and 8-4-2003.
[Ord. of 5-7-2007]
For purposes of this chapter, the words and phrases defined
in the sections hereunder shall have the meanings therein respectively
ascribed to them unless a different meaning is clearly indicated by
the context.
The Police Chief or his/her designee.
A commercial establishment which, as one of its principal
business activities, offers for sale or rental for any form of consideration
any one or more of the following: books, magazines, periodicals or
other printed matter, or photographs, films, motion pictures, video
cassettes, compact discs, digital video discs, slides, or other visual
representations which are characterized by their emphasis upon the
display of specified sexual activities or specified anatomical areas.
A "principal business activity" exists where the commercial
establishment:
Has a substantial portion of its displayed merchandise which
consists of said items, or
Has a substantial portion of the wholesale value of its displayed
merchandise which consists of said items; or
Has a substantial portion of the retail value of its displayed
merchandise which consists of said items; or
Derives a substantial portion of its revenues from the sale
or rental, for any form of consideration of said items; or
Maintains a substantial section of its interior business space
for the sale or rental of said items; or
Maintains an "adult arcade," which means any place to which
the public is permitted or invited wherein coin-operated or slug-operated
or electronically, electrically, or mechanically controlled still
or motion-picture machines, projectors, or other image-producing devices
are regularly maintained to show images to five or fewer persons per
machine at any one time, and where the images so displayed are characterized
by their emphasis upon matter exhibiting specified sexual activities
or specified anatomical areas.
A nightclub, bar, juice bar, restaurant, bottle club, or
other commercial establishment, whether or not alcoholic beverages
are served, which regularly features persons who appear seminude.
A commercial establishment where films, motion pictures,
videocassettes, slides, or similar photographic reproductions which
are characterized by their emphasis upon the display of specified
sexual activities or specified anatomical areas are regularly shown
to more than five persons for any form of consideration.
The Board of Aldermen of the City of Milford.
Describing the essential character or quality of an item.
As applied in this chapter, no business shall be classified as a sexually
oriented business by virtue of showing, selling, or renting materials
rated NC-17 or R by the Motion Picture Association of America.
City of Milford, Connecticut.
Describe and pertain to any person who performs any service
on the premises of a sexually oriented business, on a full-time, part-time,
or contract basis, whether or not the person is denominated an employee,
independent contractor, agent, or otherwise. "Employee" does not include
a person exclusively on the premises for repair or maintenance of
the premises or for the delivery of goods to the premises.
Means and includes any of the following:
The opening or commencement of any sexually oriented business
as a new business;
The conversion of an existing business, whether or not a sexually
oriented business, to any sexually oriented business; or
The addition of any sexually oriented business to any other
existing sexually oriented business.
An attorney, not otherwise employed by the City, who is licensed to practice law in Connecticut and retained to serve as an independent tribunal to conduct hearings under this Chapter 2.3.
Any of the following: (1) the actual power to operate the
sexually oriented business or control the operation, management or
policies of the sexually oriented business or legal entity which operates
the sexually oriented business, (2) ownership of a financial interest
of 30% or more of a business or of any class of voting securities
of a business, or (3) holding an office (e.g., president, vice president,
secretary, treasurer, managing member, managing director, etc.) in
a legal entity which operates the sexually oriented business.
A person in whose name a license to operate a sexually oriented
business has been issued, as well as the individual or individuals
listed as an applicant on the application for a sexually oriented
business license. In the case of an employee, it shall mean the person
in whose name the sexually oriented business employee license has
been issued.
The showing of the human male or female genitals, pubic area,
vulva, anus, anal cleft or cleavage with less than a fully opaque
covering, or the showing of the female breast with less than a fully
opaque covering of any part of the nipple and areola.
To cause to function or to put or keep in a state of doing
business. "Operator" means any person on the premises of a sexually
oriented business who causes the business to function or who puts
or keeps in operation the business or who is authorized to manage
the business or exercise overall operational control of the business
premises. A person may be found to be operating or causing to be operated
a sexually oriented business whether or not that person is an owner,
part owner, or licensee of the business.
Individual, proprietorship, partnership, corporation, association,
or other legal entity.
The real property upon which the sexually oriented business
is located, and all appurtenances thereto and buildings thereon, including,
but not limited to, the sexually oriented business, the grounds, private
walkways, and parking lots and/or parking garages adjacent thereto,
under the ownership, control, or supervision of the licensee, as described
in the application for a sexually oriented business license.
Means and refers to the consistent and repeated doing of
the act so described.
The showing of the female breast below a horizontal line
across the top of the areola and extending across the width of the
breast at that point, or the showing of the male or female buttocks.
This definition shall include the lower portion of the human female
breast, but shall not include any portion of the cleavage of the human
female breasts exhibited by a bikini, dress, blouse, shirt, leotard,
or similar wearing apparel provided the areola is not exposed in whole
or in part.
A place where persons regularly appear in a state of semi-nudity
for money or any form of consideration in order to be observed, sketched,
drawn, painted, sculptured, photographed, or similarly depicted by
other persons.
This definition does not apply to any place where persons
appearing in a state of seminudity did so in a modeling class operated:
By a college, junior college, or university supported entirely
or partly by taxation;
By a private college or university which maintains and operates
educational programs in which credits are transferable to a college,
junior college, or university supported entirely or partly by taxation;
or
Any three-dimensional object designed and marketed for stimulation
of the male or female human genitals, anus, female breast, or for
sadomasochistic use or abuse of oneself or others and shall include
devices such as dildos, vibrators, penis pumps, and physical representations
of the human genital organs. Nothing in this definition shall be construed
to include devices primarily intended for protection against sexually
transmitted diseases or for preventing pregnancy.
A commercial establishment that regularly features sexual
devices. Nothing in this definition shall be construed to include
any pharmacy, drugstore, medical clinic, or any establishment primarily
dedicated to providing medical or health care products or services,
nor shall this definition be construed to include commercial establishments
which do not restrict access to their premises by reason of age.
A business or commercial enterprise that, as one of its principal
business purposes, purports to offer for any form of consideration,
physical contact in the form of wrestling or tumbling between persons
of the opposite sex when one or more of the persons is seminude.
An adult bookstore or adult video store, an adult cabaret,
an adult motion-picture theater, a seminude model studio, a sexual
device shop, or a sexual encounter center.
Includes:
Any of the following specified crimes for which less than five
years elapsed since the date of conviction or the date of release
from confinement for the conviction, whichever is the later date:
Any attempt, solicitation, or conspiracy to commit one of the
foregoing offenses; or
Any offense in another jurisdiction that, had the predicate
act(s) been committed in Connecticut, would have constituted any of
the foregoing offenses.
Any of the following:
At least 30% of the item(s) so modified.
Any of the following:
The sale, lease, or sublease of the business;
The transfer of securities which constitute an influential 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 the ownership or control.
The room, booth, or area where a patron of a sexually oriented
business would ordinarily be positioned while watching a film, videocassette,
digital video disc, or other video reproduction.
[Ord. of 5-7-2007]
The classifications for sexually oriented businesses shall be
as follows:
[Ord. of 5-7-2007]
(a)
Business license. It shall be unlawful for any person to operate
a sexually oriented business in the City without a valid sexually
oriented business license.
(b)
Employee license. It shall be unlawful for any person to be an "employee,"
as defined in this chapter, of a sexually oriented business in the
City without a valid sexually oriented business employee license,
except that a person who is a licensee under a valid sexually oriented
business license shall not be required to also obtain a sexually oriented
business employee license.
(c)
Application. An applicant for a sexually oriented business license or a sexually oriented business employee license shall file in person at the office of the Administrator a completed application made on a form provided by the Administrator. A sexually oriented business may designate an individual with an influential interest in the business to file its application for a sexually oriented business license in person on behalf of the business. The application shall be signed as required by Subsection (d) herein and shall be notarized. An application shall be considered complete when it contains, for each person required to sign the application, the information and/or items required in this subsection (c), accompanied by the appropriate licensing fee:
(1)
The applicant's full legal name and any other names used
by the applicant in the preceding five years.
(2)
Current business address or another mailing address for the
applicant.
(3)
Written proof of age, in the form of a driver's license
or a copy of a birth certificate accompanied by a picture identification
document issued by a governmental agency.
(4)
If the application is for a sexually oriented business license,
the business name, location, legal description, mailing address and
phone number of the sexually oriented business.
(5)
If the application is for a sexually oriented business license,
the name and business address of the statutory agent or other agent
authorized to receive service of process.
(6)
A statement of whether an applicant has been convicted of or
has pled guilty or nolo contendere to a specified criminal activity
as defined in this chapter, and if so, each specified criminal activity
involved, including the date, place, and jurisdiction of each as well
as the dates of conviction and release from confinement, where applicable.
(7)
A statement of whether any sexually oriented business in which
an applicant has had an influential interest, has, in the previous
five years (and at a time during which the applicant had the influential
interest):
(8)
An application for a sexually oriented business license shall
be accompanied by a legal description of the property where the business
is located and a sketch or diagram showing the configuration of the
premises, including a statement of total floor space occupied by the
business. The sketch or diagram need not be professionally prepared
but shall 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. Applicants who are required to comply with the stage, booth,
and/or room configuration requirements of this chapter shall submit
a diagram indicating that the setup and configuration of the premises
meets the requirements of the applicable regulations.
|
The information provided pursuant to this Subsection (c) shall
be supplemented in writing by certified mail, return receipt requested,
to the Administrator within 10 working days of a change of circumstances
which would render the information originally submitted false or incomplete.
|
(d)
Signature. A person who seeks a sexually oriented business employee
license under this section shall sign the application for a license.
If a person who seeks a sexually oriented business license under this
section is an individual, he shall sign the application for a license
as applicant. If a person who seeks a sexually oriented business license
is other than an individual, each person with an influential interest
in the sexually oriented business or in a legal entity that controls
the sexually oriented business shall sign the application for a license
as applicant. Each applicant must be qualified under this chapter
and each applicant shall be considered a licensee if a license is
granted.
(e)
The information provided by an applicant in connection with an application
for a license under this chapter shall be maintained by the office
of the Administrator on a confidential basis, and such information
may be disclosed only as may be required, and only to the extent required,
by court order.
[Ord. of 5-7-2007]
(a)
Business license. Upon the filing of a completed application for
a sexually oriented business license, the Administrator shall immediately
issue a temporary license to the applicant if the completed application
is from a preexisting sexually oriented business that is lawfully
operating in the City and the completed application, on its face,
indicates that the applicant is entitled to an annual sexually oriented
business license. The temporary license shall expire upon the final
decision of the City to deny or grant an annual license. Within 20
days of the filing of a completed sexually oriented business license
application, the Administrator shall either issue a license to the
applicant or issue a written notice of intent to deny a license to
the applicant. The Administrator shall issue a license unless:
(1)
An applicant is less than 18 years of age.
(2)
An applicant has failed to provide information required by this
chapter for issuance of a license or has falsely answered a question
or request for information on the application form.
(3)
The license application fee required by this chapter has not
been paid.
(4)
The sexually oriented business, as defined herein, is not in
compliance with the interior configuration requirements of this chapter
or is not in compliance with the locational requirements of the City
of Milford's Zoning Regulations.
(5)
Any sexually oriented business in which the applicant has had
an influential interest, has, in the previous five years (and at a
time during which the applicant had the influential interest):
(6)
An applicant has been convicted of or pled guilty or nolo contendere
to a specified criminal activity, as defined in this chapter.
(b)
Employee license. Upon the filing of a completed application for
a sexually oriented business employee license, the Administrator shall
immediately issue a temporary license to the applicant if the applicant
seeks licensure to work in a licensed sexually oriented business and
the completed application, on its face, indicates that the applicant
is entitled to an annual sexually oriented business employee license.
The temporary license shall expire upon the final decision of the
City to deny or grant an annual license. Within 20 days of the filing
of a completed sexually oriented business employee license application,
the Administrator shall either issue a license to the applicant or
issue a written notice of intent to deny a license to the applicant.
The Administrator shall issue a license unless:
(1)
The applicant is less than 18 years of age.
(2)
The applicant has failed to provide information as required
by this chapter for issuance of a license or has falsely answered
a question or request for information on the application form.
(3)
The license application fee required by this chapter has not
been paid.
(4)
Any sexually oriented business in which the applicant has had
an influential interest, has, in the previous five years (and at a
time during which the applicant had the influential interest):
(5)
The applicant has been convicted of or pled guilty or nolo contendere
to a specified criminal activity, as defined in this chapter.
(c)
The license, if granted, shall state on its face the name of the
person or persons to whom it is granted, the number of the license
issued to the licensee(s), the expiration date, and, if the license
is for a sexually oriented business, the address of the sexually oriented
business. The sexually oriented business license shall be posted in
a conspicuous place at or near the entrance to the sexually oriented
business so that it may be read at any time that the business is occupied
by patrons or is open to the public. A sexually oriented business
employee shall keep the employee's license on his or her person
or on the premises where the licensee is then working or performing.
[Ord. of 5-7-2007]
(a)
The initial license and annual renewal fees for sexually oriented
business licenses and sexually oriented business employee licenses
shall be as follows: $250 for the initial fee for a sexually oriented
business license and $100 for annual renewal; $150 for the initial
sexually oriented business employee license and $50 for annual renewal.
[Ord. of 5-7-2007]
Sexually oriented businesses and sexually oriented business
employees shall permit the Administrator and his or her agents to
inspect, from time to time on an occasional basis, the portions of
the sexually oriented business premises where patrons are permitted,
for the purpose of ensuring compliance with the specific regulations
of this chapter, during those times when the sexually oriented business
is occupied by patrons or is open to the public. This section shall
be narrowly construed by the City to authorize reasonable inspections
of the licensed premises pursuant to this chapter, but not to authorize
a harassing or excessive pattern of inspections.
[Ord. of 5-7-2007]
(a)
Each license shall remain valid for a period of one calendar year
from the date of issuance unless otherwise suspended or revoked. Such
license may be renewed only by making application and payment of a
fee as provided in this chapter.
(b)
Application for renewal of an annual license should be made at least
90 days before the expiration date of the current annual license,
and when made less than 90 days before the expiration date, the expiration
of the current license will not be affected.
[Ord. of 5-7-2007]
(a)
The Administrator shall issue a written notice of intent to suspend
a sexually oriented business license for a period not to exceed 30
days if the sexually oriented business licensee has knowingly violated
this chapter or has knowingly allowed an employee or any other person
to violate this chapter.
(b)
The Administrator shall issue a written notice of intent to suspend
a sexually oriented business employee license if the employee has
knowingly violated this chapter.
[Ord. of 5-7-2007]
(a)
The Administrator shall issue a written notice of intent to revoke
a sexually oriented business license or a sexually oriented business
employee license, as applicable, if the licensee knowingly violates
this chapter or has knowingly allowed an employee or any other person
to violate this chapter and a suspension of the licensee's license
has become effective within the previous twelve-month period.
(b)
The Administrator shall issue a written notice of intent to revoke
a sexually oriented business license or a sexually oriented business
employee license, as applicable, if:
(1)
The licensee has knowingly given false information in the application
for the sexually oriented business license or the sexually oriented
business employee license.
(2)
The licensee has knowingly or recklessly engaged in or allowed
possession, use, or sale of controlled substances on the premises
of the sexually oriented business;
(3)
The licensee has knowingly or recklessly engaged in or allowed
prostitution on the premises of the sexually oriented business;
(4)
The licensee knowingly or recklessly operated the sexually oriented
business during a period of time when the license was finally suspended
or revoked; or
(5)
The licensee has knowingly or recklessly engaged in or allowed
any specified sexual activity to occur in or on the premises of the
sexually oriented business.
(c)
The fact that any relevant conviction is being appealed shall have
no effect on the revocation of the license, provided that, if any
conviction which serves as a basis of a license revocation is overturned
or reversed on appeal, that conviction shall be treated as null and
of no effect for revocation purposes.
(d)
When, after the notice and hearing procedure described in this chapter,
the City revokes a license, the revocation shall continue for one
year and the licensee shall not be issued a sexually oriented business
license or sexually oriented business employee license for one year
from the date revocation becomes effective.
[Ord. of 5-7-2007]
(a)
When the Administrator issues a written notice of intent to deny,
suspend, or revoke a license, the Administrator shall immediately
send such notice, which shall include the specific grounds under this
chapter for such action, to the applicant or licensee (respondent)
by certified mail. The notice shall be directed to the most current
business address or other mailing address on file with the Administrator
for the respondent. Within 15 days of the postmark of the notice,
the respondent may deliver to the hearing officer a written appeal
that shall include a statement of reasons why the respondent believes
the license should not be denied, suspended, or revoked. If a written
appeal is not received by the hearing officer within said 15 days,
the written intent to deny, suspend, or revoke a license shall become
a final denial, suspension, or revocation five days after the fifteen-day
period has expired.
(b)
If the respondent timely files a written appeal per the above paragraph,
then within five days of the receipt of the written appeal, the hearing
officer shall notify respondent in writing of the hearing date on
respondent's denial, suspension, or revocation proceeding.
(c)
Within 20 days of the receipt of respondent's written objection,
the hearing officer shall conduct a hearing on the Administrator's
written notice of intent to deny, suspend, or revoke the license.
At the hearing, the respondent shall have the opportunity to present
argument and to be represented by counsel, present evidence and witnesses
on his or her behalf, and cross-examine any of the Administrator's
witnesses. The Administrator shall be represented by counsel and shall
have the opportunity to present argument, present evidence and witnesses
on his or her behalf, and cross-examine any of the respondent's
witnesses. The hearing shall take no longer than two days, unless
extended to meet the requirements of due process and proper administration
of justice. The hearing officer shall issue a written decision, including
specific reasons for the decision pursuant to this chapter, to the
respondent within five days after the hearing.
(d)
If the decision is to deny, suspend, or revoke the license, the decision
shall become final on the 15th day after it is rendered, and the decision
shall include a statement advising the respondent of the right to
appeal or challenge such decision in any court of competent jurisdiction
by any available procedure, including but not limited to any procedure
provided by the Connecticut General Statutes, an application for a
writ of certiorari or a writ of mandamus, a petition for temporary
injunction, or an action for declaratory or injunctive relief pursuant
to 42 U.S.C. § 1983. If the hearing officer's decision
finds that no grounds exist for denial, suspension, or revocation
of the license, the Administrator shall, contemporaneously with the
issuance of the decision, immediately withdraw the intent to deny,
suspend, or revoke the license and to notify the respondent in writing
by certified mail of such action. If the respondent is not yet licensed,
the Administrator shall contemporaneously therewith issue the license
to the applicant.
(e)
If any court action challenging the hearing officer's decision
is initiated, the hearing officer shall prepare and transmit to the
court a transcript of the hearing within 10 days after receiving written
notice of the filing of the court action. The hearing officer shall
consent to expedited briefing and/or disposition of the action, shall
comply with any expedited schedule set by the court, and shall facilitate
prompt judicial review of the proceedings.
(f)
The following shall apply to any sexually oriented business that
is lawfully operating as a sexually oriented business, or any sexually
oriented business employee that is lawfully employed as a sexually
oriented business employee, on the date on which the completed business
or employee application, as applicable, is filed with the Administrator:
Upon the filing of any court action to appeal, challenge, restrain,
or otherwise enjoin the City's enforcement of the denial, suspension,
or revocation, the Administrator shall immediately issue the respondent
a provisional license. The provisional license shall allow the respondent
to continue operation of the sexually oriented business or to continue
employment as a sexually oriented business employee and will expire
upon the court's entry of a judgment on the respondent's
appeal or other action to restrain or otherwise enjoin the City's
enforcement of this chapter.
[Ord. of 5-7-2007]
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 sexually oriented business license application.
[Ord. of 5-7-2007]
(a)
A person who operates or causes to be operated a sexually oriented
business which exhibits in a booth or viewing room on the premises,
through any mechanical or electronic image-producing device, a film,
video cassette, digital video disc, or other video reproduction characterized
by an emphasis on the display of specified sexual activities or specified
anatomical areas shall comply with the following requirements.
(1)
Each application for a sexually oriented business license shall
contain a diagram of the premises showing the location of all operator's
stations, booths or viewing rooms, overhead lighting fixtures, and
rest rooms, and shall designate all portions of the premises in which
patrons will not be permitted. Rest rooms shall not contain equipment
for displaying films, video cassettes, digital video discs, or other
video reproductions. The diagram shall also designate the place at
which the license will be conspicuously posted, if granted. A professionally
prepared diagram in the nature of an engineer's or architect's
blueprint shall not be required; however, each diagram shall be oriented
to the north or to some designated street or object and shall be drawn
to a designated scale or with marked dimensions sufficient to show
the various internal dimensions of all areas of the interior of the
premises to an accuracy of plus or minus six inches. The Administrator
may waive the foregoing diagram for renewal applications if the applicant
adopts a diagram that was previously submitted and certifies that
the configuration of the premises has not been altered since it was
prepared.
(2)
It shall be the duty of the operator, and of any employees present
on the premises, to ensure that no patron is permitted access to any
area of the premises which has been designated as an area in which
patrons will not be permitted.
(3)
The interior premises shall be equipped with overhead lighting
fixtures of sufficient intensity to illuminate every place to which
patrons are permitted access at an illumination of not less than five
footcandles as measured at the floor level. It shall be the duty of
the operator, and of any employees present on the premises, to ensure
that the illumination described above is maintained at all times that
the premises is occupied by patrons or open for business.
(4)
It shall be the duty of the operator, and of any employees present
on the premises, to ensure that no sexual activity occurs in or on
the licensed premises.
(5)
It shall be the duty of the operator to post conspicuous signs
in well-lighted entry areas of the business stating all of the following:
a.
That the occupancy of viewing rooms less than 150 square feet
is limited to one person.
b.
That sexual activity on the premises is prohibited.
c.
That the making of openings between viewing rooms is prohibited.
d.
That violators will be required to leave the premises.
e.
That violations of these regulations are unlawful.
(6)
It shall be the duty of the operator to enforce the regulations
articulated in Subsection (5)a through d.
(7)
The interior of the premises shall be configured in such a manner
that there is an unobstructed view from an operator's station
of every area of the premises, including the interior of each viewing
room but excluding rest rooms, to which any patron is permitted access
for any purpose. An operator's station shall not exceed 32 square
feet of floor area. If the premises has two or more operator's
stations designated, then the interior of the premises shall be configured
in such a manner that there is an unobstructed view of each area of
the premises to which any patron is permitted access for any purpose
from at least one of the operator's stations. The view required
in this paragraph must be by direct line of sight from the operator's
station. It is the duty of the operator to ensure that at least one
employee is on duty and situated in each operator's station at
all times that any patron is on the premises. It shall be the duty
of the operator, and it shall also be the duty of any employees present
on the premises, to ensure that the view area specified in this paragraph
remains unobstructed by any doors, curtains, walls, merchandise, display
racks or other materials or enclosures at all times that any patron
is present on the premises.
(b)
It shall be unlawful for a person having a duty under this section
to knowingly fail to fulfill that duty.
[Ord. of 5-7-2007]
(a)
It shall be the duty of the operator of a sexually oriented business
to: (a) post conspicuous signs stating that no loitering is permitted
on such property; (b) designate one or more employees to monitor the
activities of persons on such property by visually inspecting such
property at least once every 90 minutes or inspecting such property
by use of video cameras and monitors; and (c) provide lighting of
the exterior premises to provide for visual inspection or video monitoring
to prohibit loitering. If used, video cameras and monitors shall operate
continuously at all times that the premises are open for business.
The monitors shall be installed within an operator's station.
(b)
It shall be unlawful for a person having a duty under this section
to knowingly fail to fulfill that duty.
(c)
No sexually oriented business shall erect a fence, wall, or other
barrier that prevents any portion of the parking lot(s) for the establishment
from being visible from a public right-of-way.
[Ord. of 5-7-2007]
(a)
A person who knowingly violates, disobeys, omits, neglects, or refuses
to comply with or resists the enforcement of any of the provisions
of this chapter shall be fined a definite sum not exceeding $90 for
each such violation. 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.
(b)
The City's legal counsel is hereby authorized to institute civil
proceedings necessary for the enforcement of this chapter to prosecute,
restrain, or correct violations hereof. Such proceedings, including
injunction, shall be brought in the name of the City, provided, however,
that nothing in this section and no action taken hereunder, shall
be held to exclude such criminal or administrative proceedings as
may be authorized by other provisions of this chapter, or any of the
laws in force in the City or to exempt anyone violating this code
or any part of the said laws from any penalty which may be incurred.
[Ord. of 5-7-2007]
Each previously-licensed sexually oriented business and sexually oriented business employee that is lawfully operating or employed on the effective date of this chapter may continue operation or employment, pursuant to this chapter, until the expiration of the annual license under which the business or employee is then operating. Upon the expiration of that previously-issued annual license, the business or employee must apply for a license under this Chapter 2.3 in order to continue operation or employment, as the case may be. All sexually oriented businesses shall have 90 days from the effective date of this Chapter 2.3 to conform their premises to the interior configuration requirements of this chapter.
[Ord. of 5-7-2007]
It is unlawful for a sexually oriented business operator to
knowingly violate the following regulations or to knowingly allow
an employee or any other person to violate the following regulations.
(a)
It shall be a violation of this chapter for a patron, employee, or
any other person to knowingly or intentionally, in a sexually oriented
business, appear in a state of nudity, regardless of whether such
public nudity is expressive in nature.
(b)
It shall be a violation of this chapter for a person to knowingly
or intentionally, in a sexually oriented business, appear in a seminude
condition unless the person is an employee who, while seminude, remains
at least six feet from any patron or customer and on a stage at least
18 inches from the floor in a room of at least 1,000 square feet.
(c)
It shall be a violation of this chapter for any employee who regularly
appears seminude in a sexually oriented business to knowingly or intentionally
touch a customer or the clothing of a customer on the premises of
a sexually oriented business.
(d)
It shall be a violation of this chapter for any person to knowingly
allow a person under the age of 18 years on the premises of a sexually
oriented business.
[Ord. of 5-7-2007]
This chapter does not impose strict liability. Unless a culpable
mental state is otherwise specified herein, a showing of a knowing
or reckless mental state is necessary to establish a violation of
a provision of this chapter. Notwithstanding anything to the contrary,
for the purposes of this chapter, an act by an employee that constitutes
grounds for suspension or revocation of that employee's license
shall be imputed to the sexually oriented business licensee for purposes
of finding a violation of this chapter, or for purposes of license
denial, suspension, or revocation, only if an officer, director, or
general partner, or a person who managed, supervised, or controlled
the operation of the business premises, knowingly or recklessly allowed
such act to occur on the premises. It shall be a defense to liability
that the person to whom liability is imputed was powerless to prevent
the act.
[Ord. of 5-7-2007]
In the event that a City official is required to act or to do
a thing pursuant to this chapter within a prescribed time, and fails
to act or to do such thing within the time prescribed, said failure
shall not prevent the exercise of constitutional rights of an applicant
or licensee. If the act required of the City official under this chapter,
and not completed in the time prescribed, includes approval of condition(s)
necessary for approval by the City of an applicant or licensee's
application for sexually oriented business license or a sexually oriented
business employee's license (including a renewal), the license
shall be deemed granted and the business or employee allowed to commence
operations or employment the day after the deadline for the City's
action has passed.
[Ord. of 5-7-2007]
This chapter and each section and provision of said chapter
hereunder, are hereby declared to be independent divisions and subdivisions
and, not withstanding any other evidence of legislative intent, it
is hereby declared to be the controlling legislative intent that if
any provisions of said chapter, or the application thereof to any
person or circumstance is held to be invalid, the remaining sections
or provisions and the application of such sections and provisions
to any person or circumstances other than those to which it is held
invalid, shall not be affected thereby, and it is hereby declared
that such sections and provisions would have been passed independently
of such section or provision so known to be invalid. Should any procedural
aspect of this chapter be invalidated, such invalidation shall not
affect the enforceability of the substantive aspects of this chapter.
[Ord. of 5-7-2007]
Any provision(s) in the City of Milford Code of Ordinances specifically
in conflict with any provision in this chapter is hereby deemed inoperative
and repealed.
[Ord. of 5-7-2007]
This chapter shall become effective after publication as provided
by law.
