[Ord. No. 1343, 8-7-2002]
For the purpose of this chapter, the following words and phrases
shall have the meanings respectively ascribed to them by this section:
Any place to which the public is permitted or invited wherein
coin-operated or slug-operated or electronically or mechanically controlled
still or motion picture machines, projectors, or other image-producing
devices are maintained to show images to five or fewer persons per
machine at any one time, and where the images so displayed are predominantly
distinguished or characterized by an emphasis on matter depicting,
describing or relating to "specified anatomical areas" or "specified
sexual activities."
A commercial establishment which has a substantial portion
of its stock-in-trade for sale or rent, for any form of consideration,
any one or more of the following items:
Books, magazines, periodicals or other printed matter, or photographs,
pictures, films, motion pictures, video cassettes, video tapes, any
material in digital format [including, but not limited to compact
discs (CDs) or digital video discs (DVDs)], greeting cards, or video
reproductions, slides, or other visual representations or electronic
media or other merchandise which is predominantly distinguished or
characterized by an emphasis on the depiction or description of "specified
anatomical areas" or "specified sexual activities"; or
Instruments, devices, or paraphernalia that are designed for
use in connection with "specified sexual activities."
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A commercial establishment may have other stock-in-trade which
does not involve the offering for sale or rental of merchandise depicting
or describing "specified anatomical areas" or "specified sexual activities"
and still be categorized as an adult bookstore or adult video store.
Such other stock-in-trade will not serve to exempt such a commercial
establishment from being characterized as an adult bookstore or adult
video store so long as a substantial portion of the commercial establishment's
stock-in-trade is the offering for sale or rental for consideration
the specified merchandise which is predominantly distinguished or
characterized by an emphasis on the depiction or description of "specified
anatomical areas" or "specified sexual activities."
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The phrase "substantial portion of its stock-in-trade" shall
be construed with reference to all relevant factors, including, but
not limited to one or more of the following:
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(1)
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Twenty-five percent or more of the commercial establishment's
gross sales area is used for the sale of merchandise which is predominantly
distinguished or characterized by an emphasis on the depiction or
description of "specified anatomical areas" or "specified sexual activities."
For purposes of this Division, gross sales area is defined as the
floor area within the inside perimeter of the exterior walls of the
commercial establishment, exclusive of vent shafts and courts, storage,
stock, office, and shipping areas, without deduction for corridors,
display fixtures, stairways, public rest rooms, closets, the thickness
of interior walls, columns or other features.
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(2)
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Twenty-five percent or more of the commercial establishment's
stock-in-trade (inventory) is comprised of merchandise which is predominantly
distinguished or characterized by an emphasis on the depiction or
description of "specified anatomical areas" or "specified sexual activities."
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(3)
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Twenty-five percent or more of the commercial establishment's
gross revenues are generated by the sale or rental of merchandise
which is predominantly distinguished or characterized by an emphasis
on the depiction or description of "specified anatomical areas" or
"specified sexual activities."
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There is a rebuttable presumption that a commercial establishment
constitutes an adult bookstore or adult video store if the commercial
establishment (1) offers or advertises merchandise that is predominantly
distinguished or characterized by an emphasis on the depiction or
description of "specified anatomical areas" or "specified sexual activities"
and (2) fails to make revenue and stock-in-trade (inventory) or related
business records available to the City upon reasonable advance notice.
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A nightclub, restaurant, or other similar commercial establishment
which regularly features or displays:
Persons who appear in a state of nudity; or
Live performances predominantly distinguished or characterized
by an emphasis on the exposure of any "specified anatomical areas"
or by any "specified sexual activities"; or
Films, motion pictures, video cassettes, videotapes, any material
in digital format [including, but not limited to compact discs (CDs)
or digital video discs (DVDs)], slides, other photographic reproductions
or visual media which are predominantly distinguished or characterized
by an emphasis on the depiction or description of any "specified anatomical
areas" or any "specified sexual activities."
A hotel, motel or similar commercial establishment that:
Offers accommodations to the public for any form of consideration
and provides patrons with closed-circuit television (as distinguished
from commercial cable services) transmissions, films, motion pictures,
video cassettes, videotapes, any material in digital format [including,
but not limited to compact discs (CDs) or digital video discs (DVDs)],
slides, other photographic reproductions or visual media that are
predominantly distinguished or characterized by an emphasis on matter
depicting, describing or relating to "specified anatomical areas"
or any "specified sexual activities"; and
Offers a sleeping room for rent, or allows a tenant or occupant
of a sleeping room to subrent the room, for a period of time that
is less than 10 hours.
A commercial establishment where, for any form of consideration,
films, motion pictures, video cassettes, videotapes, any material
in digital format [including, but not limited to compact discs (CDs)
or digital video discs (DVDs)], slides, or similar photographic reproductions
or visual media are regularly featured which are predominantly distinguished
or characterized by an emphasis on matter depicting, describing or
relating to "specified anatomical activities" or "specified sexual
activities." This definition includes, but is not limited to, commercial
establishments that offer individual viewing booths.
An adult theater is a theater, concert hall, auditorium or
similar commercial establishment that regularly features a person
or persons who appear in a state of nudity and/or regularly features
a person or persons in live performances that are predominantly distinguished
or characterized by an emphasis on the exposure of "specified anatomical
areas" or "specified sexual activities."
A person who, for a fee, tip or any other form of consideration
and regardless of who pays that consideration, agrees to act or offers
to act as a companion or date for another person, or who agrees or
offers to privately model lingerie or to privately perform a striptease
for another person.
A person or business association that furnishes, offers to
furnish, or advertises to furnish escorts as one of its primary business
purposes for a fee, tip or other consideration. An escort agency is
deemed to be operated in the location where (1) a request for an escort
is received, or (2) the escort and the person requesting the escort
are together.
Any method of applying pressure on, friction against, stroking,
kneading, rubbing, tapping, pounding, vibrating or stimulating the
external parts of the body, for remedial or hygienic or other purposes,
with the hands, with or without the aid of any mechanical, magnetic
or electrical apparatus or appliances, with or without supplementary
aids such as rubbing alcohol, liniments, antiseptics, oils, powders,
creams, lotions, ointments or other similar preparations.
Any building, room, place or establishment where body massage
is regularly practiced on the human body, to club members or to the
general public, for a charge. The term "massage establishment" includes,
but is not limited to massage parlors, health clubs, sauna baths and
steam baths if massages are performed at those locations. The term
"massage establishment" shall not include:
Hospitals, nursing homes, medical clinics;
The office of a state-licensed physician, surgeon, physical
therapist, osteopath or chiropractor;
The establishment of a barber, manicurist, beautician or cosmetologist
who is duly licensed under the laws of this state, or another state
within the United States, or the federal government, and who practices
within the established limits of his or her license, and who administers
a massage in the normal course of his or her duties in which massages
are administered only to the scalp, face, neck, hands, feet or shoulder;
The establishment of a myomassaologist who is a current member
of the American Massage Therapy Association or other national massage
therapy organization with comparable prerequisites for certification;
or
A nonprofit organization operating a community center, swimming
pool, tennis court or other educational, cultural, recreational or
athletic facility for the welfare of the residents of the area.
Anything tangible, whether through the medium of reading,
observation, sound, or in any other manner, including, but not limited
to, anything printed or written, any book, magazine, newspaper, pamphlet,
picture, drawing, pictorial representation, motion picture, photograph,
video tape, video disk, film, transparency, slide, audiotape, audiodisk,
computer tape, holographic images, or any other medium used to electronically
produce or reproduce images on a screen, or any mechanical, chemical,
or electronic reproduction. Material includes undeveloped photographs,
molds, printing plates, and other latent representational objects
whether or not processing or other acts are required to make the content
of the material apparent. This definition is intended to include material
which is the product of any technology, whether that technology is
available on the effective date of this Ordinance or becomes available
after that date.
Material and novelties.
Any instrument, device, or paraphernalia which depicts or
describes any "specific anatomical areas" or any "specific sexual
activities," or which is designed for use, or commonly used, in connection
with "specific sexual activities," excluding condoms and other birth
control and disease prevention products.
Any place where a person who displays "specified anatomical
areas" is regularly provided to be observed, sketched, drawn, painted,
sculptured, photographed or similarly depicted by other persons who
pay money or any form of consideration. Nude Model Studio does not
include either of the following:
An educational institution funded, chartered or recognized by
the State of Michigan; or
Any modeling session for a local, nonprofit organization, that
is not open to the public or to any persons other than members of
the organization, that is for the purpose of instruction in the artistic
depiction in two-dimensional or three-dimensional media of the human
form, during which no "specified sexual activities" occur and during
which the model remains in a fixed pose.
The dominant or essential theme of the object described by
such phrase.
Knowingly or intentionally displaying in a public place,
or in any other place for payment or promise of payment by any person,
including, but not limited to payment or promise of payment of an
admission fee, any individual's genitals, pubic area, vulva, anus
or anal cleft with less than a fully opaque covering, a female individual's
breast with less than a fully opaque covering of the nipple and areola,
or the covered male genitals in a discernibly turgid state. Public
nudity does not include any of the following:
A woman's breast-feeding of an infant shall not under any circumstances
constitute public nudity irrespective of whether the nipple is covered
during or incidental to the feeding.
Any display of any part of the anatomy occurring as part of
the regular curriculum of an educational institution that is funded,
chartered, or recognized by the State of Michigan.
A business or commercial establishment, except that which
is part of the practice of and under the supervision and control of
a physician, psychologist or psychiatrist licensed to practice in
the State of Michigan, that, as one of its principal business purposes,
offers for any form of consideration:
A business or commercial establishment engaging in any of
the following businesses: (a) adult arcade; (b) adult bookstore or
adult video store; (c) adult cabaret; (d) adult motel; (e) adult motion-picture
theater; (f) adult theater; (g) escort agency; (h) nude model studio;
or (i) sexual encounter center. Each of these businesses shall constitute
a separate sexually oriented business.
Less than completely and opaquely covered human genitals, pubic
region, buttocks, anus or a female breast below a point immediately
above the top of the areola, but not including any portion of the
cleavage of the female breast exhibited by a dress, blouse, shirt,
leotard, bathing suit, or other wearing apparel, provided the areolae
is not exposed; and
Human male genitals in a discernibly turgid state, even if completely
and opaquely covered.
The fondling or any other erotic touching of human genitals,
pubic region, buttocks, anus, or female breasts; or
Sex acts, normal or perverted, actual or simulated, including
intercourse, oral copulation, masturbation or sodomy; or
Excretory functions as part of or in connection with any of
the activities set forth in (1) or (2) above.
[Ord. No. 1343, 8-7-2002]
(a)
A person shall not establish, operate or maintain a sexually oriented
business within the City of Holland without a valid sexually oriented
business license issued by the City pursuant to this chapter.
(b)
A person who operates or maintains a sexually oriented business which
exists prior to the effective date of this ordinance shall not continue
to operate or maintain said business unless that person obtains a
valid sexually oriented business license issued by the City pursuant
to this chapter within 90 days of the effective date of this ordinance.
(c)
A person shall not establish, operate or maintain a sexually oriented
business within the City of Holland except in the manner authorized
by and in compliance with the provisions of this chapter and the licensee's
license.
[Ord. No. 1343, 8-7-2002; 7-21-2021 by Ord. No. 1798]
A person desiring to obtain a license to operate a sexually oriented business shall first obtain special exception approval pursuant to Chapter 39 - Unified Development Ordinance (UDO) of this Code and then file an application with the City Clerk along with a nonrefundable license fee in an amount established by resolution of the City Council. A massage establishment as defined in Section 40-1 is not a sexually oriented business, and a person seeking to establish, operate or maintain a massage establishment does not have to comply with the provisions of this chapter. The application for a sexually oriented business license shall be upon a form provided by the City Clerk and shall be signed and sworn to by the applicant. The application shall contain the following information:
(a)
The full name, and present residential and mailing addresses of the
applicant.
(b)
The date of birth and social security number of the applicant.
(c)
The two previous residential addresses immediately prior to the present
residential address of the applicant and the dates of residence at
each residential address.
(d)
Any other names, nicknames or aliases which the applicant has been
known by during the previous five years.
(e)
A description of the services to be provided and the merchandise
to be offered for rent or sale.
(f)
The location and mailing address of the sexually oriented business.
(g)
The full name, any aliases and the present residential and mailing
addresses of each current employee and each known intended employee
(including, but not limited to, managers and supervisors).
(h)
If the applicant is a corporation:
(1)
The corporation's complete name and official business address;
(2)
The full name and current business address of each of the officers
and directors of the corporation;
(3)
The full name and current business address of each stockholder who
has a controlling or significant share in the business (more than
20% of the corporation);
(4)
The full name and current business address of each individual responsible
in whole or in part for the management and operation of the sexually
oriented business;
(5)
Proof that the corporation is a corporation in good standing and
authorized to conduct business in the State of Michigan; and
(6)
The full name of the registered corporate agent and the address of
the registered agent office for service of process.
(i)
If the applicant is a partnership or other business entity:
(1)
The organization's complete name and official business address;
(2)
The full name and current business address of each of the partners
(including limited partners) or members or each of the persons entitled
to share in the profits of the organization;
(3)
The full name and current business address of each individual responsible
in whole or in part for the management and operation of the sexually
oriented business.
(4)
Proof of a certificate of fact not cancelled with respect to a limited
partnership.
(5)
Proof of a status certificate with respect to a limited-liability
company.
(6)
The full name of the resident agent and the address of the registered
office for service of process.
(j)
If the applicant is a corporation, partnership, or other business
entity, the following information shall be required with respect to
each individual responsible in whole or in part for the management
of the sexually oriented business and with respect to each individual
responsible in whole or in part for the operation of the sexually
oriented business:
(1)
Height, weight, sex, color of eyes and hair;
(2)
Business, occupation, or employment history for the three years immediately
proceeding the application;
(3)
All felony and misdemeanor convictions and all ordinance violations
other than minor traffic violations and the nature of the offense
(charge) for which the individual was convicted;
(4)
Written proof (birth certificate or sworn affidavits) that the individual
is at least 18 years of age; and
(5)
A complete set of fingerprints, recorded by the Police Department.
(k)
If the applicant is an individual or a group of individuals, the
following information shall be required with respect to each individual
applicant:
(1)
Height, weight, sex, color of eyes and hair;
(2)
Business, occupation, or employment history for the three years immediately
preceding the application;
(3)
All felony and misdemeanor convictions and all ordinance violations
other than minor traffic violations and the nature of the offense
(charge) for which the applicant was convicted;
(4)
Written proof (birth certificate or sworn affidavits) that the applicant
is at least 18 years of age; and
(5)
A complete set of fingerprints, recorded by the Police Department.
(l)
One portrait photograph of at least two inches by two inches which
shall be taken by the Police Department, and the results of a criminal
history records investigation of the applicant completed within 30
days immediately prior to the date of the filing of the application
which shall include all criminal history information on file at the
State Police Central Records Division pertaining to the applicant.
(The applicant shall provide his or her fingerprints to the Police
Department for the purpose of obtaining such criminal history information.)
In the event that the applicant is a corporation, partnership, or
other business entity, the applicant shall submit the required photograph
and results of a criminal history records investigation of each individual
responsible in whole or in part for the management of the sexually
oriented business and each individual responsible in whole or in part
for the operation of the sexually oriented business.
(m)
The history of the applicant in the operation of the sexually oriented
business or similar business or occupation, including, but not limited
to, whether or not such applicant, in previously operating in the
City or in another jurisdiction, has had a sexually oriented business
license revoked or suspended and the reason therefor, and the business
activity or occupation subsequent to such action or suspension.
(n)
The amount of the establishment's gross sales area which will
be used for the sale of merchandise which is predominantly distinguished
or characterized by an emphasis on the depiction or description of
"specified anatomical areas" or "specified sexual activities"; and
how much of the establishment's stock-in-trade (inventory) will
be comprised of merchandise which is predominantly distinguished or
characterized by an emphasis on the depiction or description of "specified
anatomical areas" or "specified sexual activities."
(o)
Such other identification and information bearing on the application
as the City may reasonably require.
[Ord. No. 1343, 8-7-2002; 7-21-2021 by Ord. No. 1798]
(a)
Generally. An applicant for a sexually oriented business license shall present to the City Clerk verification that special exception approval pursuant to Division 8 of Chapter 39 - Unified Development Ordinance (UDO) of this Code has been obtained, the application containing all the information, data and documentation described in Section 40-3 and the license fee which shall be in an amount established by resolution of City Council. An application shall be deemed complete if the City Clerk has received verification that special exception approval pursuant to Chapter 39 - Unified Development Ordinance (UDO) of this Code has been obtained, the application contains all of the information, data and documentation described in Section 40-3 and the license fee has been paid ("completed application"). The City Clerk shall date a completed application upon receipt with the date that it is received. Applications which are not completely or correctly filled out; or are not accompanied by special exception approval verification; or do not contain the appropriate information, data and documentation; or are not accompanied by the required application fee shall be rejected as incomplete by the City Manager and shall be returned to the applicant. All completed applications shall be reviewed in accordance with the following procedure:
(1)
Within three calendar days after receipt of a completed application,
the City Clerk shall forward a copy of the completed application to
the City Manager, Chief of Police, Fire Chief, and Building Inspector
for review in accordance with this section. The Chief of Police, Fire
Chief, and Building Inspector shall review the application, conduct
any inquiries or inspections, and, within 14 calendar days of the
receipt of the application from the City Clerk, report the findings
of such inquiries and inspections to the City Manager on whether the
application and the proposed premises comply with the requirements
of this chapter.
a.
The Chief of Police shall review the application to determine whether
the applicant, any individual in the management of the corporation,
partnership, or other business entity operating the sexually oriented
business or any employee has been convicted of any criminal offenses
other than minor traffic offenses, has violated any provision of this
article or has had a sexually oriented business license or similar
license denied or revoked by the City or by another governmental body
and the reasons therefor.
b.
The Fire Chief shall review the application to determine if the premises
and the proposed sexually oriented business comply with all fire codes.
(2)
The City Manager, after receiving the reports of the Chief of Police, the Fire Chief, and the Building Inspector, and after reviewing the complete application, shall approve or deny a license to the sexually oriented business in accordance with the standards set forth in Subsection (b) of this section. If no report is received from any one or more of the officials, then the City Manager shall assume that all requirements of this section, this chapter, and the zoning requirements of Chapter 39 - Unified Development Ordinance (UDO) and this Code are satisfied by the applicant. The City Manager shall make a determination within 30 calendar days after the City Clerk's receipt of the completed application. If approved, then the City Clerk shall issue the sexually oriented business license.
(b)
Standards for issuance of license. The City Manager shall make a licensing decision within 30 calendar days as referenced above in Subparagraph (2) of Subsection (a) of this section, notwithstanding other ordinance requirements, and the City Manager shall not predicate a license denial on a deficiency in the application that is due to the City's failure to perform under this section. The City Manager shall issue a sexually oriented business license to an applicant unless the City Manager finds any of the following:
(1)
Failure of the applicant, the premises, or the sexually oriented business to comply with this section, this chapter, the zoning requirements of Chapter 39 - Unified Development Ordinance (UDO), all applicable fire, mechanical, electrical, and building codes, or any other provision of this Code.
(2)
Prior
criminal convictions, other than minor traffic offenses, of the applicant,
any individual in the management of any corporation, partnership,
or other business entity operating the sexually oriented business,
a manager, a supervisor or an employee of the sexually oriented business,
when such criminal conviction involves moral turpitude, prostitution,
obscenity or other crime of a sexual nature and is a felony conviction
which arose within five years of the date of the application or a
misdemeanor conviction which arose within two years of the date of
the application.
(3)
Misrepresentation
of any material fact in the application for the license.
(4)
Violations
of this chapter by the applicant, an individual in the management
of the corporation, partnership, or other business entity operating
the sexually oriented business, a manager, a supervisor, or an employee
of the sexually oriented business.
(5)
The
applicant, an individual in the management of the corporation, partnership
or other business entity operating the sexually oriented business,
a manager, a supervisor, or an employee of the sexually oriented business
is not at least 18 years of age.
(6)
The
applicant, an individual in the management of the corporation, partnership
or other business entity operating the sexually oriented business,
a manager, a supervisor or an employee of the sexually oriented business:
i) was denied a sexually oriented business license within 12 months
immediately preceding the date of the application; ii) had a sexually
oriented business license revoked within 12 months immediately preceding
the date of the application; or iii) has a sexually oriented business
license under suspension at the time of application.
(c)
Written findings of fact in support of denial. In the event that a sexually oriented business license is denied, the City Manager shall make written findings of fact in support of the denial based on the standards described above and shall notify the applicant of the denial in writing. The City Manager's written notice of denial shall be delivered in person or by certified U.S. mail, postage prepaid, return receipt requested, addressed to the applicant's address as set forth in the application. The application shall be deemed denied on the day that the notice of denial is delivered in person or three days after it is placed in the U.S. mail as provided in this Subsection (c).
(d)
Appeal. The applicant may appeal such denial to the City Council by filing a written request for an appeal with the City Manager within 10 calendar days following receipt of notification of the denial. In the event of an appeal, the City Council shall hold a public hearing on the denial within 30 calendar days of the receipt of the written request for an appeal. The City Council shall have the power to reverse, affirm, or modify the decision of the City Manager, and the City Council shall render a written decision on the appeal within 10 calendar days of hearing the appeal. The City Council shall, in its determination, make findings of fact supporting its decision, and the reasons shall be based on the standards described in Subsection (b) of this section. The determination of the City Council shall be final, any person aggrieved by the decision of the City Council may promptly appeal such decision to a court of competent jurisdiction in accordance with the Michigan Constitution and applicable state law. If such a person aggrieved by the decision of the City Council seeks judicial review, then a temporary license shall be issued pending the outcome of the appeal. If judicial review is pursued, then the City shall submit the administrative transcript to the court within 45 days of being served with pleadings commencing the appeal process. A temporary license may be revoked if the applicant/appellant fails to comply with the procedural requirements for prosecuting the appeal.
(e)
License deemed to be issued. If the City Manager does not issue or
deny a sexually oriented business license within 30 days after the
properly completed application is submitted to him or her for review
and determination, then the sexually oriented business license applied
for shall be deemed to have been issued.
[Ord. No. 1343, 8-7-2002]
(a)
Every sexually oriented business shall be provided with a license
which prominently states on its face the expiration date of the license,
the name of the licensee, the name of the sexually oriented business,
and the address of the sexually oriented business. The licensee shall
only conduct business at the address and in the name shown on the
license. If the licensee has other sexually oriented businesses, then
the licensee must obtain a separate license for each business and
operate at separate locations.
(b)
A license for a sexually oriented business shall be displayed on
the premises of the sexually oriented business in a conspicuous place
so that it may be readily seen by persons entering the premises, and,
upon request, the licensee shall make the license available to the
Police Department or to the Building Inspector during normal business
hours.
[Ord. No. 1343, 8-7-2002]
A license for a sexually oriented business shall not be transferable
to a new location or to a new person/licensee. Each sexually oriented
business located within the City shall be separately licensed regardless
of whether such businesses are owned or operated by the same person
or entity.
[Ord. No. 1343, 8-7-2002; 7-21-2021 by Ord. No. 1798]
A license fee as established by resolution of the City Council shall be submitted to the City Clerk along with an application for a license and verification that special exception approval pursuant to Chapter 39 Unified Development Ordinance (UDO) of this Code has been obtained.
[Ord. No. 1343, 8-7-2002]
(a)
Every license issued pursuant to this chapter shall terminate on
April 30, unless it is revoked sooner, and a license must be renewed
before operation is allowed for May 1 through April 30 of the following
year.
(b)
A licensee desiring to renew a license shall make application to the City Clerk. The application for renewal must be filed with the City Clerk not later than 60 days before the license expires. The City Clerk shall date the completed application upon receipt with the date that it is received. Within three calendar days after receipt of a renewal application, the City Clerk shall forward a copy to the City Manager, Chief of Police, Fire Chief and Building Inspector. The application for renewal shall be upon a form provided by the City Clerk and shall be signed and sworn to by the applicant. The application for renewal shall contain such information, data and documentation as is required for an application for a new license. An application for renewal shall be processed in accordance with the procedure outlined in Section 40-4(a)(1), (2), (b), (c), (d) and (e) regarding the procedure for processing a license application.
(c)
A license renewal fee in the amount established by resolution of
the City Council shall accompany the renewal application when it is
filed with the City Clerk. In addition to the renewal fee, a late
renewal fee in the amount established by resolution of the City Council
shall be assessed against an applicant who files for a renewal less
than 60 days before the license expires.
[Ord. No. 1343, 8-7-2002; 7-21-2021 by Ord. No. 1798]
(a)
The City Council can revoke or suspend a license for any of the following
reasons:
(1)
Discovery that false or misleading information, data or documentation
was given on any application or that material facts were omitted from
any application.
(2)
The licensee, an individual in the management of the corporation,
partnership, or other business entity operating the sexually oriented
business, a manager, a supervisor or an employee of the sexually oriented
business has violated any provision of this chapter or any rule or
regulation adopted by the City Council pursuant to this chapter; provided,
however, that in the case of a first offense by a licensee where the
conduct was solely that of an individual in the management of the
corporation, partnership, or other business entity operating the sexually
oriented business, a manager, a supervisor or an employee, the penalty
shall not exceed a suspension of 30 days if the City Council finds
that the licensee had no actual or constructive knowledge of such
violation and could not by the exercise of due diligence have had
such actual or constructive knowledge.
(3)
The licensee becomes ineligible to obtain a license, or the licensee
is convicted of, or pleads nolo contendere to, any felony or any crime
involving moral turpitude, prostitution, obscenity or other crime
of a sexual nature.
(4)
Any cost or fee required to be paid by this chapter is not paid.
(5)
Any intoxicating liquor or cereal malt beverage is sold, served,
used, possessed, or consumed on the premises of the sexually oriented
business, unless such business has a liquor license and is operating
in accordance with that license.
(b)
The City
Council, before revoking or suspending any license, shall give the
licensee at least 10 days' written notice of the charges against
him or her, and the opportunity for a public hearing before the City
Council, as hereinafter provided.
(1)
Before the City Council revokes or suspends a license issued under
this chapter, the City Council shall cause written notice to be delivered
in person or by certified U.S. mail, postage prepaid, return receipt
requested, addressed as set forth in the application to the licensee
or applicant affected, informing such person of the right to a hearing
upon request.
(2)
If the licensee does not request a hearing within 14 days of the
date the notice was sent, then the license may be forthwith revoked
or suspended. If the licensee requests a hearing before the City Council
regarding said proposed revocation or suspension, then said hearing
shall be held within 21 days after the date of the written request.
(3)
Any license issued by the City may be immediately suspended by the
City Manager or duly appointed City official if it is determined that
the licensee has violated or someone at or upon the licensed location
has violated the City ordinance or state law and that continued operation
under the license is contrary to the public health, safety, and welfare.
A licensee shall have the right to a hearing before the City Council
on any license suspension by the City Manager or duly appointed City
official, and notice thereof shall be given in accordance with Subparagraphs
(1) and (2) above.
(4)
Both the City and the licensee shall be afforded a reasonable opportunity
to present evidence on the issue at a hearing. The City Council shall,
in its determination, make findings of fact supporting its decision,
and the reasons shall be based on the standards described in Subsection
(a) of this section. The City Council shall render a written decision
on the proposed revocation or suspension within 10 calendar days of
the hearing, action taken by the City Council shall be final, and
any fees hereunder shall not be refunded to the applicant or licensee.
(c)
The transfer of a license or any interest in a license shall automatically
and immediately revoke the license.
(d)
Any licensee whose license is revoked shall not be eligible to receive
a license for one year from the date of revocation. No location or
premises for which a license has been issued shall be used as a sexually
oriented business for six months from the date of revocation of the
license.
(e)
Any licensee whose license is revoked or suspended pursuant to this
section may appeal the revocation or suspension to a court of competent
jurisdiction in accordance with the Michigan Constitution and applicable
state law. If such a licensee seeks judicial review, then a temporary
license shall be issued pending the outcome of the appeal. If judicial
review is pursued, then the City shall submit the administrative transcript
to the court within 45 days of being served with pleadings commencing
the appeal process.
[Ord. No. 1343, 8-7-2002]
All sexually oriented businesses shall comply with each of the
following requirements:
(a)
With the provisions of this chapter; all other applicable City ordinances,
resolutions, rules and regulations; and all other applicable federal,
state and local laws.
(b)
Obtaining and maintaining a valid license to operate a sexually oriented
business issued in accordance with this chapter.
(c)
A person under the age of 18 shall not enter or be on the premises
of a sexually oriented business at any time the sexually oriented
business is open.
(d)
A person under the age of 18 shall not be employed, contracted or
engaged to provide any services within, for or on behalf of a sexually
oriented business.
(e)
An owner, partner, performer, contractor or employee of a sexually
oriented business shall not sell or provide goods, merchandise or
services to persons under the age of 18 on the premises.
(f)
A sexually oriented business or any other person at any sexually
oriented business shall not appear, be present, or perform while nude.
A sexually oriented business or any other person at any sexually oriented
business shall not perform or conduct any "specified sexual activities"
with or for any sexually oriented business patron or any other sexually
oriented business employee or any other person. A sexually oriented
business patron or any other person at any sexually oriented business
shall not perform or conduct any "specified sexual activities" with
or for any sexually oriented business employee or any other sexually
oriented business patron or any other person.
(g)
A sexually oriented business shall be open to inspection by the City's
license officer, ordinance enforcement officer, the Building Inspector,
any public safety officer, any police officer, any firefighter, any
sheriff deputy and any Michigan State Police trooper that has reasonable
cause to believe that the licensee or the sexually oriented business
is not in compliance with the law, and such inspection shall be allowed
at any time the establishment is occupied or open for business and
anywhere in the establishment where patrons are allowed. Upon request,
the licensee shall make available to the inspector documentation regarding
the stock-in-trade (inventory) of the sexually oriented business and
documentation regarding the gross revenues of the sexually oriented
business, which documentation shall show how much of the gross revenues
are generated by the sale or rental of merchandise which is predominantly
distinguished or characterized by an emphasis on the depiction or
description of "specified anatomical areas" or "specified sexual activities."
(h)
The prohibitions of Section 40-10(c) shall be posted on signs placed in at least two conspicuous (i.e., so they will be easily viewed by persons occupying the premises) places on the business premises. Such signs shall be at least 24 inches by 36 inches in size and shall be printed in bold face type at least 24 points in size.
(i)
The exterior of the business premises shall not have any words, lettering,
photographs, silhouettes, drawings, or pictorial representations of
a sexually explicit manner, sexually explicit material, "specified
anatomical areas" or "specified sexual activities."
(j)
The merchandise or activities within the business premises shall
not be visible or audible from a point that is outside of the business
premises.
(k)
Daily hours of operation shall be limited to the period of time from
7:00 a.m. until 2:30 a.m. the following day on any day of the week
except Sunday, when daily hours of operation shall be limited to the
period of time from 12:00 noon until 2:30 a.m. the following day.
(l)
One or more manager's stations shall be in each sexually oriented
business, and the interior of each sexually oriented business shall
be configured in such a manner that there is a direct and substantially
unobstructed view from at least one manager's station to every part
of each area, except rest rooms, of the establishment to which any
sexually oriented business patron is permitted access for any purpose.
(m)
A sexually oriented business shall comply with both the following:
(n)
A booth, room or cubicle, located in any sexually oriented business
(excepting an adult motel), which is used by patrons for the viewing
of merchandise or any other entertainment must comply with all of
the following requirements:
(1)
It must be unobstructed by any door, lock or other entrance
and exit control device;
(2)
One side must be totally open to a public, lighted isle so that
there is an unobstructed view at all times from the adjoining isle
of any occupant in the booth, room or cubicle;
(3)
It must be illuminated such that a person of normal visual acuity
looking into the booth, room or cubicle from the entrance adjoining
the public lighted isle can clearly determine the number of people
within;
(4)
There shall be no holes or openings in any side or rear wall
not related to utility, ventilation or temperature control services
or otherwise required by any governmental code or authority;
(5)
Only one individual shall occupy the booth, room or cubicle
at any one time; and
(6)
An individual occupying an adult booth, room or cubicle shall
not engage in any "specified sexual activities," nor shall he or she
damage or deface any portion of the booth, room or cubicle.
(o)
A sexually oriented business shall not contain any video, pinball,
slot, bagatelle, pigeon hole, pool or any other games, machines, tables
or implements.
[Ord. No. 1343, 8-7-2002]
All sexually oriented businesses offering live entertainment
shall comply with each of the following requirements:
(a)
A dressing room for performers with direct access between said dressing
area and the performance area or stage shall be provided, such that
a performer may enter the performance area or stage without entering
the area from which patrons will view the performance.
(b)
All performances shall occur on a stage elevated at least 18 inches
above the immediate floor level and removed at least six feet from
the nearest employee or patron.
(c)
The dressing area for performers shall be separate and not freely
accessible from areas of the business accessible to patrons, and the
dressing area shall contain hot and cold running water and toilet
facilities.
(d)
There shall be no physical contact between any performer and any
other performer or between any performer and any owner, independent
contractor, employee, patron or other person during or for at least
15 minutes following such performance, and there shall be no physical
contact between any person on the stage or performance area and any
owner, independent contractor, employee, patron or other person during
or for at least 15 minutes following any performance. "Physical contact"
includes, but is not limited to any contact in which any part of the
body or clothing of one person touches any part of the body or clothing
of the other person, or if a person causes anything under his or her
direct control to touch any part of the body or clothing of another
person.
(e)
An escort agency shall maintain permanent records on the premises
showing the name, address and telephone number of every person for
whom an escort is provided, the fee paid, the name of the escort or
escorts so provided, and the location where the escort and the person
requesting the escort initially meet. These records shall be made
available, upon demand and without prior notice, to any City official
inspecting the premises pursuant to this ordinance.
(f)
No tip or gratuity from any sexually oriented business patron may
be offered or accepted for any performance by a sexually oriented
business employee at any time prior to the completion of any such
performance. No sexually oriented business patron shall offer, and
no sexually oriented business employee having performed live at a
sexually oriented business shall accept any form of a tip or gratuity
offered directly to the employee by the sexually oriented business
patron. Following completion of a performance, all tips and gratuities
to a sexually oriented business employee performing live shall be
placed into a receptacle provided for receipt of such tips and gratuities
by the sexually oriented business.
[Ord. No. 1343, 8-7-2002]
(a)
Except as otherwise provided by this Code, no person within a sexually
oriented business shall display to the view of any other person "specified
anatomical areas," or dance, entertain, display or otherwise engage
in any exhibition or performance in such a manner as to expose to
the view of any person any device, costume or covering which gives
the appearance of or simulates any "specified anatomical areas."
(b)
No person shall engage in any "specified sexual activities" on the
premises of a sexually oriented business or any other commercial establishment.
[Ord. No. 1343, 8-7-2002]
(a)
A violation of any provision of this chapter shall be a misdemeanor
punishable in accordance with this Code.
(b)
Permitting, allowing, encouraging or promoting any violation of any
provision of this chapter shall be a misdemeanor punishable in accordance
with this Code.
(c)
Aiding, assisting or abetting the violation of any provision of this
chapter shall be a misdemeanor punishable in accordance with this
Code.
[Ord. No. 1343, 8-7-2002]
A violation of any provision of this chapter shall also be a
nuisance per se, and in addition to the remedies and penalties otherwise
provided in this chapter, the City shall be entitled to seek and obtain
temporary and permanent equitable relief, enjoin violations of this
chapter, and seek all other remedies as provided by law.
[Ord. No. 1343, 8-7-2002]
The various parts, sections and clauses of this ordinance are
hereby declared to be severable. If any part, sentence, paragraph,
section or clause is adjudged unconstitutional or invalid by a court
of competent jurisdiction, the remainder of this ordinance shall not
be affected thereby.
