[Ord. No. 1166 §I, 7-13-2005]
A. Purpose. It is the purpose of this Chapter to regulate sexually
oriented businesses in order to promote the health, safety, morals
and general welfare of the citizens of the City and to establish reasonable
and uniform regulations to prevent the deleterious location and concentration
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 of any communicative materials, including
sexually oriented materials. Similarly, it is not 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. Based on evidence concerning the adverse secondary
effects of adult uses on the community presented in hearings and in
reports made available to the Council and on findings incorporated
in the cases of City of Renton v. Playtime Theatres, Inc., 475 U.
S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976),
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), City of Erie v.
Pap's AM, TDA "Kandyland ", 529 U.S. 277 (2000) and City of Los Angeles
v. Alameda Books, Inc., 121 5. Ct. 1223 (2001) and on studies in other
communities including, but not limited to, Kansas City, Missouri;
Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis,
Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California;
Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma
City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and also on
findings from the Report of the Attorney General's Working Group On
The Regulation Of Sexually Oriented Businesses (June 6, 1989, State
of Minnesota), the Council finds:
1. Sexually
oriented businesses lend themselves to ancillary, unlawful and unhealthy
activities that are presently uncontrolled by the operators of the
establishments. Further, there is presently no mechanism to make the
owners of these establishments responsible for the activities that
occur on their premises.
2. Certain
employees of sexually oriented businesses defined in this Chapter
as adult theatres and cabarets engage in higher incidence of certain
types of illicit sexual behavior than employees of other establishments.
3. Sexual
acts, including masturbation and oral and anal sex, occur at sexually
oriented businesses, especially those which provide private or semi-private
booths or cubicles for viewing films, videos or live sex shows.
4. Offering
and providing such space encourages such activities which creates
unhealthy conditions.
5. Persons
frequent certain adult theatres, adult arcades and other sexually
oriented businesses for the purpose of engaging in sex within the
premises of such sexually oriented businesses.
6. At least
fifty (50) communicable diseases may be spread by activities occurring
in sexually oriented businesses including, but not limited to, syphilis,
gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital
herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections
and shigella infections.
7. Since
1981 and to the present, there has been an increasing cumulative number
of reported cases of AIDS caused by the human immuno deficiency virus
(HIV) in the United States — 600 in 1982, 2,200 in 1983, 4,600
in 1984, 8,555 in 1985 and 253,448 through December 31, 1992.
8. Since
1981 and to the present, there have been an increasing cumulative
number of persons testing positive for the HIV antibody test.
9. The
number of cases of early (less than one (1) year) syphilis in the
United States reported annually has risen, with 33,613 cases reported
in 1982 and 45,200 through November of 1990.
10. The
number of cases of gonorrhea in the United States reported annually
remains at a high level, with over one-half million (500,000) cases
being reported in 1990.
11. The
Surgeon General of the United States in his report of October 22,
1986, has advised the American public that AIDS and HIV infection
may be transmitted through sexual contact, intravenous drug abuse,
exposure to infected blood and blood components and from an infected
mother to her newborn.
12. According
to the best scientific evidence, AIDS and HIV infection, as well as
syphilis and gonorrhea, are principally transmitted by sexual acts.
13. Sanitary
conditions in some sexually oriented businesses are unhealthy, in
part, because the activities conducted there are unhealthy and, in
part, because of the unregulated nature of the activities and the
failure of the owners and the operators of the facilities to self-regulate
those activities and maintain those facilities.
14. Numerous
studies and reports have determined that semen is found in the areas
of sexually oriented businesses where persons view "adult" oriented
films.
15. The
findings noted in Subparagraphs number (1) through (15) raise substantial
governmental concerns.
16. Sexually
oriented businesses have operational characteristics which should
be reasonably regulated in order to protect those substantial governmental
concerns.
17. A
reasonable licensing procedure is an appropriate mechanism to place
the burden of that reasonable regulation on the owners and the operators
of the sexually oriented businesses. Further, such a licensing procedure
will place a heretofore non-existent incentive on the operators to
see that the sexually oriented business is run in a manner consistent
with the health, safety and welfare of its patrons and employees,
as well as the citizens of the City. It is appropriate to require
reasonable assurances that the licensee is the actual operator of
the sexually oriented business, fully in possession and control of
the premises and activities occurring therein.
18. Removal
of doors on adult booths and requiring sufficient lighting on premises
with adult booths advances a substantial governmental interest in
curbing the illegal and unsanitary sexual activity occurring in adult
theatres.
19. Requiring
licensees of sexually oriented businesses to keep information regarding
current employees and certain past employees will help reduce the
incidence of certain types of criminal behavior by facilitating the
identification of potential witnesses or suspects and by preventing
minors from working in such establishments.
20. The
disclosure of certain information by those persons ultimately responsible
for the day-to-day operation and maintenance of the sexually oriented
business, where such information is substantially related to the significant
governmental interest in the operation of such uses, will aid in preventing
the spread of sexually transmitted diseases.
21. It
is desirable in the prevention of the spread of communicable diseases
to obtain a limited amount of information regarding certain employees
who may engage in the conduct which this Chapter is designed to prevent
or who are likely to be witnesses to such activity.
22. The
fact that an applicant for an adult use license has been convicted
of a sexually related crime leads to the rational assumption that
the applicant may engage in that conduct in contravention of this
Chapter.
23. The
barring of such individuals from the management of adult uses for
a period of years serves as a deterrent to and prevents conduct which
leads to the transmission of sexually transmitted diseases.
24. The
general welfare, health, morals and safety of the citizens of the
City will be promoted by the enactment of this Chapter.
[Ord. No. 1166 §II, 7-13-2005]
As used in this Chapter, the following terms shall have these
prescribed meanings:
ADULT ARCADE
Any place to which the public is permitted or invited wherein
coin-operated, slug-operated or for any form of consideration or electronically,
electrically or mechanically controlled still or motion picture machines,
projectors, video or laser disc players or other image-producing devices
are maintained to show images to five (5) or fewer persons per machine
at any one time and where the images so displayed are distinguished
or characterized by the depicting or describing of "specified sexual
activities" or "specified anatomical areas".
ADULT BOOKSTORE, ADULT NOVELTY STORE OR ADULT VIDEO STORE
A commercial establishment which as one (1) of its principal
purposes offers for sale or rental for any form of consideration any
one (1) or more of the following:
1.
Books, magazines, periodicals or other printed matter or photographs,
films, motion pictures, video cassettes or video reproductions, slides
or other visual representations which are characterized by the depiction
or description of "specified sexual activities" or "specified anatomical
areas"; or
2.
Instruments, devices or paraphernalia which are designed for
use in connection with "specified sexual activities".
A commercial establishment may have other principal business
purposes that do not involve the offering for sale or rental of material
depicting or describing "specified sexual activities" or "specified
anatomical areas" and still be categorized as adult bookstore, adult
novelty store or adult video store. Such other business purposes will
not serve to exempt such commercial establishments from being categorized
as an adult bookstore, adult novelty store or adult video store so
long as one (1) of its principal business purposes is the offering
for sale or rental for consideration the specified materials which
are characterized by the depiction or description of "specified sexual
activities" or "specified anatomical areas".
|
ADULT CABARET
A nightclub, bar, restaurant or similar commercial establishment
which regularly features:
1.
Persons who appear in a state of nudity or semi-nude; or
2.
Live performances which are characterized by the exposure of
"specified anatomical areas" or by "specified sexual activities";
or
3.
Films, motion pictures, video cassettes, slides or other photographic
reproductions which are characterized by the depiction or description
of "specified sexual activities" or "specified anatomical areas".
ADULT MOTEL
A hotel, motel or similar commercial establishment which:
1.
Offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, films,
motion pictures, video cassettes, slides or other photographic reproductions
which are characterized by the depiction or description of "specified
sexual activities" or "specified anatomical areas"; and has a sign
visible from the public right- of-way which advertises the availability
of this adult type of photographic reproductions; or
2.
Offers a sleeping room for rent for a period of time that is
less than ten (10) hours; or
3.
Allows a tenant or occupant of a sleeping room to subrent the
room for a period of time that is less than ten (10) hours.
ADULT MOTION PICTURE THEATER
A commercial establishment where, for any form of consideration,
films, motion pictures, video cassettes, slides or similar photographic
reproductions are regularly shown which are characterized by the depiction
or description of "specified sexual activities" or "specified anatomical
areas".
ADULT THEATER
A theater, concert hall, auditorium or similar commercial
establishment which regularly features persons who appear in a state
of nudity or semi-nude or live performances which are characterized
by the exposure of "specified anatomical areas" or by "specified sexual
activities".
EMPLOYEE
A 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 and whether or not said person is paid a salary,
wage or other compensation by the operator of said business. Employee
does not include a person exclusively on the premises for repair or
maintenance of the premises or equipment on the premises or for the
delivery of goods to the premises.
ESCORT
A person who, for consideration, agrees or offers to act
as a companion, guide or date for another person or who agrees or
offers to privately model lingerie or to privately perform a striptease
for another person.
ESCORT AGENCY
A person or business association who furnishes, offers to
furnish or advertises to furnish escorts as one (1) of its primary
business purposes for a fee, tip or other consideration.
ESTABLISHMENT
Includes any of the following:
1.
The opening or commencement of any sexually oriented business
as a new business;
2.
The conversion of an existing business, whether or not a sexually
oriented business, to any sexually oriented business;
3.
The additions of any sexually oriented business to any other
existing sexually oriented business; or
4.
The relocation of any sexually oriented business.
LICENSEE
A person in whose name a license to operate a sexually oriented
business has been issued as well as the individual listed as an applicant
on the application for a license; and in the case of an employee,
a person in whose name a license has been issued authorizing employment
in a sexually oriented business.
NUDE MODEL STUDIO
Any place where a person who appears semi-nude, in a state
of nudity or who displays "specified anatomical areas" and is 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 shall not include a proprietary school
licensed by the State of Kansas or a college, junior college or university
supported entirely or in part by public taxation; 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 in a structure:
1.
That has no sign visible from the exterior of the structure
and no other advertising that indicates a nude or semi-nude person
is available for viewing; and
2.
Where in order to participate in a class a student must enroll
at least three (3) days in advance of the class; and
3.
Where no more than one (1) nude or semi-nude model is on the
premises at any one (1) time.
NUDITY OR A STATE OF NUDITY
The showing of the human male or female genitals, pubic area,
vulva, anus, anal cleft or cleavage with less than a fully opaque
covering, the showing of the female breast with less than a fully
opaque covering of any part of the nipple or the showing of the covered
male genitals in a discernibly turgid state.
PERSON
An individual, proprietorship, partnership, corporation,
association or other legal entity.
SEMI-NUDE OR IN A SEMI-NUDE CONDITION
The showing of the female breast below a horizontal line
across the top of the areola at its highest point or the showing of
the male or female buttocks. This definition shall include the entire
lower portion of the human female breast, but shall not include any
portion of the cleavage of the human female breast exhibited by a
dress, blouse, skirt, leotard, bathing suit or other wearing apparel
provided the areola is not exposed in whole or in part.
SEXUAL ENCOUNTER CENTER
A business or commercial enterprise that as one (1) of its
principal business purposes offers for any form of consideration:
1.
Physical contact in the form of wrestling or tumbling between
persons of the opposite sex; or
2.
Activities between male and female persons and/or persons of the same sex when one (1) or more of the persons is in a state of nudity or semi-nude. Licensed massage establishments under City Code Chapter
620 as amended are excluded from the provisions of this Chapter.
SEXUALLY ORIENTED BUSINESS
An adult arcade, adult bookstore, adult novelty store, adult
video store, adult cabaret, adult motel, adult motion picture theater,
adult theater, escort agency, nude model studio or sexual encounter
center.
SPECIFIED ANATOMICAL AREAS
1.
The human male genitals in a discernibly turgid state, even
if completely and opaquely covered; or
2.
Less than completely and opaquely covered human genitals, pubic
region, buttocks or a female breast below a point immediately above
the top of the areola.
SPECIFIED CRIMINAL ACTIVITY
Any of the following offenses:
1.
Prostitution or promotion of prostitution; dissemination of
obscenity; sale, distribution or display of harmful material to a
minor; sexual performance by a child; possession or distribution of
child pornography; public lewdness; indecent exposure; indecency with
a child; engaging in organized criminal activity; sexual assault;
molestation of a child; gambling; or distribution of a controlled
substance; or any similar offenses to those described above under
the criminal or penal code of other States or countries;
2.
For which:
a.
Less than two (2) years have elapsed since the date of conviction
or the date of release from confinement imposed for the conviction,
whichever is the later date, if the conviction is of a misdemeanor
offense;
b.
Less than five (5) years have elapsed since the date of conviction
or the date of release from confinement for the conviction, whichever
is the later date, if the conviction is of a felony offense; or
c.
Less than five (5) years have elapsed since the date of the
last conviction or the date of release from confinement for the last
conviction, whichever is the later date, if the convictions are of
two (2) or more misdemeanor offenses or combination of misdemeanor
offenses occurring within any twenty-four (24) month period.
3.
The fact that a conviction is being appealed shall have no effect
on the disqualification of the applicant or a person residing with
the applicant.
SPECIFIED SEXUAL ACTIVITIES
Any of the following:
1.
The fondling or other erotic touching of human genitals, pubic
region, buttocks, anus or female breasts;
2.
Sex acts, normal or perverted, actual or simulated, including
intercourse, oral copulation, masturbation or sodomy; or
3.
Excretory functions as part of or in connection with any of
the activities set forth in (1) through (2) above.
TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS
Includes any of the following:
1.
The sale, lease or sublease of the business;
2.
The transfer of securities which constitute a controlling interest
in the business whether by sale, exchange or similar means; or
3.
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.
[Ord. No. 1166 §III, 7-13-2005]
A. Sexually
oriented businesses are classified as follows:
2. Adult
bookstores, adult novelty stores or adult video stores;
5. Adult
motion picture theaters;
9. Sexual
encounter centers.
[Ord. No. 1166 §IV, 7-13-2005]
A. It is
unlawful:
1. For
any person to operate a sexually oriented business without a valid
sexually oriented business license issued by the City pursuant to
this Chapter.
2. For
any person who operates a sexually oriented business to employ a person
to work for the sexually oriented business who is not licensed as
a sexually oriented business employee by the City pursuant to this
Chapter.
3. For
any person to obtain employment with a sexually oriented business
without having secured a sexually oriented business employee license
pursuant to this Chapter.
B. An application
for a license must be made on a form provided by the City.
C. All applicants
must be qualified according to the provisions of this Chapter. The
application may request and the applicant shall provide such information
(including fingerprints) as to enable the City to determine whether
the applicant meets the qualifications established in this Chapter.
D. A person
who wishes to operate a sexually oriented business must sign the application
for a license as an applicant. If a person other than an individual
wishes to operate a sexually oriented business, all persons legally
responsible for the operations of the sexually oriented business or
who have power to control or direct its operations must sign the application
for a license as applicant. Such persons include, but are not limited
to, general partners, corporate officers, corporate directors and
controlling shareholder(s). Each application must be qualified under
the following Subsection and each applicant shall be considered a
licensee if a license is granted.
E. The completed
application for a sexually oriented business license shall contain
the following information and shall be accompanied by the following
documents:
1. If the
applicant is:
a. An
individual, the individual shall state his/her legal name and any
aliases and submit proof that he/she is eighteen (18) years of age;
b. A
partnership, the partnership shall state its complete name and the
names of all partners, whether the partnership is general or limited
and a copy of the partnership agreement, if any;
c. A
corporation, the corporation shall state its complete name, the date
of its incorporation, evidence that the corporation is in good standing
under the laws of its State of incorporation, the names and capacity
of all officers, directors and controlling stockholders and the name
of the registered corporate agent and the address of the registered
office for service of process.
2. If the
applicant intends to operate the sexually oriented business under
a name other than that of the applicant he or she must state:
a. The
sexually oriented business's fictitious name, and
b. Submit
the required registration documents.
3. Whether
the applicant or a person residing with the applicant has been convicted
of a specified criminal activity as defined in this Chapter and, if
so, the specified criminal activity involved, the date, place and
jurisdiction of each.
4. Whether
the applicant or a person residing with the applicant has had a previous
license under this Chapter or other similar sexually oriented business
ordinances from another City or County denied, suspended or revoked,
including the name and location of the sexually oriented business
for which the permit was denied, suspended or revoked, as well as
the date of the denial, suspension or revocation and whether the applicant
or a person residing with the applicant has been a partner in a partnership
or an officer, director or principal stockholder of a corporation
that is licensed under this Chapter whose license has previously been
denied, suspended or revoked, including the name and location of the
sexually oriented business for which the permit was denied, suspended
or revoked as well as the date of denial, suspension or revocation.
5. Whether
the applicant or a person residing with the applicant holds any other
licenses under this Chapter or other similar sexually oriented business
ordinance from another City or County and, if so, the names and locations
of such other licensed businesses.
6. The
single classification of license for which the applicant is filing.
7. The
location of the proposed sexually oriented business including a legal
description of the property, street address and telephone number(s),
if any.
8. The
applicant's mailing address and residential address.
9. A recent
photograph of the applicant(s).
10. The
applicant's driver's license number.
11. 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 it must be drawn
to a designated scale or drawn with marked dimensions of the interior
of the premises to an accuracy of plus or minus six (6) inches.
12. A
current certificate and straight-line drawing prepared within thirty
(30) days prior to application by a registered land surveyor depicting
the property lines and the structures containing any existing sexually
oriented businesses within fifteen hundred (1,500) feet of the property
to be certified; the property lines of any established religious institution/synagogue,
school or public park or recreation area within seven hundred fifty
(750) feet of the property to be certified. For purposes of this Section,
a use shall be considered existing or established if it is in existence
at the time an application is submitted.
13. If an applicant wishes to operate a sexually oriented business other than an adult motel which shall exhibit on the premises, in a viewing room or booth of less than one hundred fifty (150) square feet of floor space, films, video cassettes, other video reproductions or live entertainment which depict specified sexual activities or specified anatomical areas, then the applicant shall comply with the application requirements set forth in Section
607.140.
F. Before
any applicant may be issued a sexually oriented business employee
license, the applicant shall submit on a form to be provided by the
City the following information:
1. The
applicant's name or any other name (including "stage" names) or aliases
used by the individual;
2. Age,
date and place of birth;
3. Height,
weight, hair and eye color;
4. Present
residence address and telephone number;
5. Present
business address and telephone number;
6. Date,
issuing State and number of driver's permit or other identification
card information; and
7. Proof
that the individual is at least eighteen (18) years of age.
G. Attached
to the application form for a sexually oriented business employee
license as provided above shall be the following:
1. A color
photograph of the applicant clearly showing the applicant's face and
the applicant's fingerprints on a form provided by the Police Department.
Any fees for the photographs and fingerprints shall be paid by the
applicant.
2. A statement
detailing the license history of the applicant for the five (5) years
immediately preceding the date of the filing of the application, including
whether such applicant previously operated or is seeking to operate,
in this or any other County, City, State or country has ever had a
license, permit or authorization to do business denied, revoked or
suspended or had any professional or vocational license or permit
denied, revoked or suspended. In the event of any such denial, revocation
or suspension, state the name, the name of the issuing or denying
jurisdiction and describe in full the reason for the denial, revocation
or suspension. A copy of any order of denial, revocation or suspension
shall be attached to the application.
3. A statement
whether the applicant has been convicted of a specified criminal activity
as defined in this Chapter and, if so, the specified criminal activity
involved, the date, place and jurisdiction of each.
[Ord. No. 1166 §V, 7-13-2005]
A. Upon
the filing of said application for a sexually oriented business employee
license, the City shall issue a temporary license to said applicant.
The application shall then be referred to the appropriate City departments
for an investigation to be made on such information as is contained
on the application. The application process shall be completed within
thirty (30) days from the date the completed application is filed.
After the investigation, the City shall issue a license, unless it
is determined by a preponderance of the evidence that one (1) or more
of the following findings is true:
1. The
applicant has failed to provide information reasonable necessary for
issuance of the license or has falsely answered a question or request
for information on the application form;
2. The
applicant is under the age of eighteen (18) years;
3. The
applicant has been convicted of a "specified criminal activity" as
defined in this Chapter;
4. The
sexually oriented business employee license is to be used for employment
in a business prohibited by local or State law, Statute, rule or regulation
or prohibited by a particular provision of this Chapter; or
5. The applicant has had a sexually oriented business employee license revoked by the City within two (2) years of the date of the current application. If the sexually oriented business employee license is denied, the temporary license previously issued is immediately deemed null and void. Denial, suspension or revocation of a license issued pursuant to this Subsection shall be subject to appeal as set forth in Section
607.100.
B. A license granted pursuant to this Section shall be subject to annual renewal upon the written application of the applicant and a finding by the City that the applicant has not been convicted of any specified criminal activity as defined in this Chapter or committed any act during the existence of the previous license, which would be grounds to deny the initial license application. The renewal of the license shall be subject to the payment of the fee as set forth in Section
607.060.
C. Within
thirty (30) days after receipt of a completed sexually oriented business
application, the City shall approve or deny the issuance of a license
to an applicant. The City shall approve the issuance of a license
to an applicant unless it is determined by a preponderance of the
evidence that one (1) or more of the following findings is true:
1. An applicant
is under eighteen (18) years of age.
2. An applicant
or a person with whom applicant is residing is overdue in payment
to the City of taxes, fees, fines or penalties assessed against or
imposed upon him/her in relation to any business.
3. An applicant
has failed to provide information reasonably necessary for issuance
of the license or has falsely answered a question or request for information
on the application form.
4. An applicant
or a person with whom the applicant is residing has been denied a
license by the City to operate a sexually oriented business within
the preceding twelve (12) months or whose license to operate a sexually
oriented business has been revoked within the preceding twelve (12)
months.
5. An applicant
or a person with whom the applicant is residing has been convicted
of a specified criminal activity defined in this Chapter.
6. The
premises to be used for the sexually oriented business have not been
approved by the Health Department, Fire Department and the Building
Official as being in compliance with applicable laws and ordinances.
7. The
license fee required by this Chapter has not been paid.
8. An applicant
of the proposed establishment is in violation of or is not in compliance
with any of the provisions of this Chapter.
D. The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, the address of the sexually oriented business and the classification for which the license is issued pursuant to Section
607.030. All licenses shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that they may be easily read at any time.
E. The Health
Department, Fire Department and the Building Official shall complete
their certification that the premises is in compliance or not in compliance
within twenty (20) days of receipt of the application by the City.
F. A sexually oriented business license shall issue for only one (1) classification as found in Section
607.030.
[Ord. No. 1166 §VI, 7-13-2005]
A. Every application for a sexually oriented business license (whether for a new license or for renewal of an existing license) shall be accompanied by the license required by Chapter
103.
B. Every application for a sexually oriented business employee license (whether for a new license or for renewal of an existing license) shall be accompanied by the license fee required by Chapter
103.
[Ord. No. 1166 §VII, 7-13-2005]
A. An applicant
or licensee shall permit representatives of the Police Department,
Health Department, Fire Department, Zoning Department or other City
departments or agencies to inspect the premises of a sexually oriented
business for the purpose of insuring compliance with the law at any
time it is occupied or open for business.
B. A person
who operates a sexually oriented business or his agent or employee
commits a misdemeanor if he refuses to permit such lawful inspection
of the premises at any time it is open for business.
[Ord. No. 1166 §VIII, 7-13-2005]
A. Each license shall expire one (1) year from the date of issuance and may be renewed only by making application as provided in Section
607.040. Application for renewal shall be made at least thirty (30) days before the expiration date and when made less than thirty (30) days before the expiration date, the expiration of the license will not be affected.
B. When
the City denies renewal of a license, the applicant shall not be issued
a license for one (1) year from the date of denial. If subsequent
to denial the City finds that the basis for denial of the renewal
license has been corrected or abated, the applicant may be granted
a license if at least ninety (90) days have elapsed since the date
denial became final.
[Ord. No. 1166 §IX, 7-13-2005]
A. The City
shall suspend a license for a period not to exceed thirty (30) days
if it determines that a licensee or an employee of a licensee has:
1. Violated
or is not in compliance with any Section of this Chapter;
2. Refused
to allow an inspection of the sexually oriented business premises
as authorized by this Chapter.
[Ord. No. 1166 §X, 7-13-2005]
A. The City shall revoke a license if a cause of suspension in Section
607.090 occurs and the license has been suspended within the preceding twelve (12) months.
B. The City
shall revoke a license if it determines that:
1. A licensee
gave false or misleading information in the material submitted during
the application process;
2. A licensee
has knowingly allowed possession, use or sale of controlled substances
on the premises;
3. A licensee
has knowingly allowed prostitution on the premises;
4. A licensee
knowingly operated the sexually oriented business during a period
of time when the licensee's license was suspended;
5. Except
in the case of an adult motel, a licensee has knowingly allowed any
act of sexual intercourse, sodomy, oral copulation, masturbation or
other sex act to occur in or on the licensed premises; or
6. A licensee
is delinquent in payment to the City, County or State for any taxes
or fees past due.
C. When
the City revokes a license, the revocation shall continue for one
(1) year and the licensee shall not be issued a sexually oriented
business license for one (1) year from the date the revocation became
effective. If subsequent to revocation the City finds that the basis
for the revocation has been corrected or abated, the applicant may
be granted a license if at least ninety (90) days have elapsed since
the date the revocation became effective.
D. After
denial of an application, or denial of a renewal of an application,
or suspension or revocation of any license, the applicant or licensee
may seek prompt judicial review of such administrative action in any
court of competent jurisdiction. The administrative action shall be
promptly reviewed by the court.
[Ord. No. 1166 §XI, 7-13-2005]
A licensee shall not transfer his/her license to another nor
shall a licensee operate a sexually oriented business under the authority
of a license at any place other than the address designated in the
application.
[Ord. No. 1166 §XII, 7-13-2005]
A. No person
may operate or cause to be operated a sexually oriented business within
seven hundred fifty (750) feet of:
1. A church,
synagogue, mosque, temple or building which is used primarily for
religious worship and related religious activities;
2. A public
or private educational facility including, but not limited to, child
day care facilities, nursery schools, preschools, kindergartens, elementary
schools, private schools, intermediate schools, junior high schools,
middle schools, high schools, vocational schools, secondary schools,
continuation schools, special education schools, junior colleges and
universities; "school" includes the school grounds
but does not include facilities used primarily for another purpose
and only incidentally as a school;
3. A boundary
of a residential district as defined in the Zoning Code;
4. A public
park or recreational area which has been designated for park or recreational
activities including, but not limited to, a park, playground, nature
trails, swimming pool, reservoir, athletic field, basketball or tennis
courts, pedestrian/bicycle paths, wilderness areas or other similar
public land within the City which is under the control, operation
or management of the City park and recreation authorities;
5. The
property line of a lot devoted to a residential use as defined in
the Zoning Code;
6. An entertainment
business which is oriented primarily towards children or family entertainment;
or
7. A licensed
premises, licensed pursuant to the alcoholic beverage control regulations
of the State.
B. No person
may cause or permit the operation, establishment, substantial enlargement
or transfer of ownership or control of a sexually oriented business
within fifteen hundred (1,500) feet of another sexually oriented business.
C. No person
may cause or permit the operation, establishment or maintenance of
more than one (1) sexually oriented business in the same building,
structure or portion thereof or the increase of floor area of any
sexually oriented business in any building, structure or portion thereof
containing another sexually oriented business.
D. For the purpose of Subsection
(B) of this Section, measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the building or structure used as the part of the premises where a sexually oriented business is conducted to the nearest property line of the premises of a use listed in Subsection
(B). Presence of a City, County or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this Section.
E. For purposes of Subsection
(C) of this Section, the distance between any two (2) sexually oriented businesses shall be measured in a straight line, without regard to the intervening structures or objects or political boundaries, from the closest exterior wall of the structure in which each business is located.
F. Any sexually oriented business lawfully operating on the effective date of this Chapter, that is in violation of Subsection
(A) through
(F) of this Section shall be deemed a non-conforming use. The non-conforming use will be permitted to continue for a period not to exceed one (1) year, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such non-conforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two (2) or more sexually oriented businesses are within fifteen hundred (1,500) feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later established business(es) is/are non-conforming.
G. A sexually oriented business lawfully operating as a conforming use is not rendered a non-conforming use by the location, subsequent to the grant or renewal of the sexually oriented business license, of a use listed in Subsection
(B) of this Section within fifteen hundred (1,500) feet of the sexually oriented business. This provision applies only to the renewal of a valid license and does not apply when an application for a license is submitted after a license has expired or been revoked.
[Ord. No. 1166 §XIII, 7-13-2005]
A. Evidence
that a sleeping room in a hotel, motel or a similar commercial establishments
has been rented and vacated two (2) or more times in a period of time
that is less than ten (10) hours creates a rebuttable presumption
that the establishment is an adult motel as that term is defined in
this Chapter.
B. A person
commits a misdemeanor if, as the person in control of a sleeping room
in a hotel, motel or similar commercial establishment that does not
have a sexually oriented license, he rents or subrents a sleeping
room to a person and within ten (10) hours from the time the room
is rented, he rents or subrents the same sleeping room again.
C. For purposes of Subsection
(B) of this Section, the terms
"rent" or
"subrent" mean the act of permitting a room
to be occupied for any form of consideration.
[Ord. No. 1166 §XIV, 7-13-2005]
A. A person
who operates or causes to be operated a sexually oriented business,
other than an adult motel, which exhibits on the premises in a viewing
room of less than one hundred fifty (150) square feet of floor space
a film, video cassette, live entertainment or other video reproduction
which depicts specified sexual activities or specified anatomical
areas shall comply with the following requirements:
1. Upon
application for a sexually oriented license, the application shall
be accompanied by a diagram of the premises showing a plan thereof
specifying the location of one (1) or more manager's stations and
the location of all overhead lighting fixtures and designating any
portion of the premises in which patrons will not be permitted. A
manager's station may not exceed thirty-two (32) square feet of floor
area. The diagram shall also designate the place at which the permit
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 should be oriented to the north
or to some designated street or object and should 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 (6) inches. The City 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. The
application shall be sworn to be true and correct by the applicant.
3. No alteration
in the configuration or location of a manager's station may be made
without the prior approval of the City.
4. It is
the duty of the licensee of the premises to ensure that at least one
(1) licensed employee is on duty and situated in each manager's station
at all times that any patron is present inside the premises.
5. The
interior of the premises shall be configured in such a manner that
there is an unobstructed view from a manager's station of every area
of the premises to which any patron is permitted access for any purpose,
excluding restrooms. Restrooms may not contain video reproduction
equipment. If the premises has two (2) or more manager'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 (1) of the manager's stations. The view required
in this Subsection must be by direct line of sight from the manager's
station.
6. It shall
be the duty of the licensee to ensure that the view area specified
in Subparagraph (5) remains unobstructed by any doors, curtains, partitions,
walls, merchandise, display racks or other materials and, at all times,
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 in the application filed pursuant to Subparagraph (1) of
this Subsection.
7. No viewing
room may be occupied by more than one (1) person at any time.
8. 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 five (5.0) foot-candles
as measured at the floor level.
9. It shall
be the duty of the licensee to ensure that the illumination described
above is maintained at all times that any patron is present in the
premises.
10. No
licensee shall allow openings of any kind to exist between viewing
rooms or booths.
11. No
person shall make or attempt to make an opening of any kind between
viewing booths or rooms.
12. The
licensee shall, during each business day, regularly inspect the walls
between the viewing booths to determine if any openings or holes exist.
13. The
licensee shall cause all floor coverings in viewing booths to be non-porous,
easily cleanable surfaces with no rugs or carpeting.
14. The
licensee shall cause all wall surfaces and ceiling surfaces in viewing
booths to be constructed of or permanently covered by non-porous,
easily cleanable material. No wood, plywood, composition board or
other porous material shall be used within forty-eight (48) inches
of the floor.
B. A person having a duty under Subparagraphs (1) through (14) of Subsection
(A) above commits a misdemeanor if he knowingly fails to fulfill that duty.
[Ord. No. 1166 §XV, 7-13-2005]
A. An escort
agency shall not employ any person under the age of eighteen (18)
years.
B. A person
commits an offense if the person acts as an escort or agrees to act
as an escort for any person under the age of eighteen (18) years.
[Ord. No. 1166 §XVI, 7-13-2005]
A. A nude
model studio shall not employ any person under the age of eighteen
(18) years.
B. A person
under the age of eighteen (18) years commits an offense if the person
appears semi-nude or in a state of nudity in or on the premises of
a nude model studio. It is a defense to prosecution under this Subsection
if the person under eighteen (18) years was in a restroom not open
to public view or visible to any other person.
C. A person
commits an offense if the person appears in a state of nudity or knowingly
allows another to appear in a state of nudity in an area of a nude
model studio premises which can be viewed from the public right-of-way.
D. A nude
model studio shall not place or permit a bed, sofa or mattress in
any room on the premises, except that a sofa may be placed in a reception
room open to the public.
[Ord. No. 1166 §XVII, 7-13-2005]
A. It shall
be a misdemeanor for a person who knowingly and intentionally in a
sexually oriented business appears in a state of nudity or depicts
specified sexual activities.
B. It shall
be a misdemeanor for a person who knowingly or intentionally in a
sexually oriented business appears in a semi-nude condition unless
the person is an employee who, while semi-nude, shall be at least
ten (10) feet from any patron or customer and on a stage at least
two (2) feet from the floor.
C. It shall
be a misdemeanor for an employee, while semi-nude in a sexually oriented
business, to solicit any pay or gratuity from any patron or customer
or for any patron or customer to pay or give any gratuity to any employee,
while said employee is semi-nude in a sexually oriented business.
D. It shall
be a misdemeanor for an employee, while semi-nude, to touch a customer
or the clothing of a customer.
[Ord. No. 1166 §XVIII, 7-13-2005]
A person commits a misdemeanor if the person knowingly allows
a person under the age of eighteen (18) years on the premises of a
sexually oriented business.
[Ord. No. 1166 §XIX, 7-13-2005]
No sexually oriented business, except for an adult motel, may
remain open at any time between the hours of 1:00 A.M. and 8:00 A.M.
on weekdays and Saturdays and 1:00 A.M. and 12:00 Noon on Sundays.
[Ord. No. 1166 §XX, 7-13-2005]
A. It is a defense to prosecution under Section
607.170 that a person appearing in a state of nudity did so in a modeling class operated:
1. By a
proprietary school licensed by the State of Kansas; a college, junior
college or university supported entirely or partly by taxation;
2. 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
3. In a
structure:
a. Which
has no sign visible from the exterior of the structure and no other
advertising that indicates a nude person is available for viewing;
and
b. Where
in order to participate in a class a student must enroll at least
three (3) days in advance of the class; and
c. Where
no more than one (1) nude model is on the premises at any one time.
[Ord. No. 1166 §XXI, 7-13-2005]
It shall be unlawful for any person to violate the provisions of this Chapter. A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of Section
607.120 of this Chapter is subject to a suit for injunction as well as prosecution for criminal violations. Such violations shall be punishable by a fine of up to five hundred dollars ($500.00) and one hundred eighty (180) days in jail. Each day a sexually oriented business so operates is a separate offense or violation.