[HISTORY: Adopted by the City Council of the City of El Paso
2002 by Ord. No. 782 (Ch. 5.30 of
the 1979 Code). Amendments noted where applicable.]
A.
Title. This chapter shall be known as and may be cited as the "City
of El Paso Sexually Oriented Business Licensing Chapter," and is also
referred to herein as "this chapter."
B.
Purpose. The purpose of this chapter is to establish reasonable and
uniform regulations to minimize and control the negative secondary
effects of sexually oriented businesses within the municipality in
order to promote the health, safety, and welfare of the citizens of
the municipality. The provisions of this chapter have neither the
purpose nor the effect of imposing a limitation or restriction on
the content of any communicative materials or communication, including
sexually oriented entertainment. Similarly, it is not the purpose
nor effect of this chapter to restrict or deny access by adults to
sexually oriented entertainment protected by the First Amendment,
or to deny access by distributors and exhibitors of sexually oriented
entertainment to their intended market. Furthermore, it is not the
intent or effect of this chapter to condone or legitimize the distribution
or exhibition of entertainment that is obscene.
C.
Findings. Based on evidence concerning the adverse secondary effects
of sexually oriented businesses presented to the municipality from
findings incorporated in the cases of the Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991), City of Playtime Theaters, Inc., 475 U.S.
41 (1986) and Young v. American Mini Theaters, 426 U.S. 50 (1976),
and on studies in other cities, this legislative body finds:
(1)
Sexually oriented businesses lend themselves to ancillary unlawful
and unhealthy activities.
(2)
Sexual acts, including masturbation, oral sex and anal sex, occur
at sexually oriented businesses, especially those which provide private
or semi-private booths or rooms for viewing films, videos, or live
sexually oriented entertainment. Such activities may result in spreading
communicable diseases such as syphilis, gonorrhea, and human immunodeficiency
virus (HIV).
(3)
Offering sexually oriented entertainment under conditions that encourage
such activities creates unhealthy conditions.
(4)
Sanitary conditions in some sexually oriented businesses are unhealthy,
in part because of the failure of owners and operators to regulate
those activities and maintain their facilities.
(5)
Numerous studies and reports have determined that semen is found
in the areas of sexually oriented businesses where persons view sexually
oriented films concealed from public view.
(7)
Sexually oriented businesses have operational characteristics which
should be reasonably regulated in order to protect those compelling
and substantial governmental concerns.
(8)
A reasonable licensing procedure is an appropriate mechanism to place
the burden of that reasonable regulation on the owners and operators
of sexually oriented businesses. Further, such a licensing procedure
will place a heretofore nonexistent incentive on operators to see
that sexually oriented businesses are run in a manner consistent with
the health, safety and welfare of patrons and employees, as well as
the citizens of the municipality. It is appropriate to require reasonable
assurances that the licensee is the actual operator of the sexually
oriented business, and fully in possession and control of the premises
and activities occurring therein.
(9)
The regulation of nudity, semi-nudity, and physical contact between
employees and patrons in sexually oriented businesses will further
the compelling and substantial governmental interests in preventing
prostitution and other sex-related crimes, including illegal sex acts,
and protecting the public health, safety, and welfare.
(10)
Requiring open sight lines in sexually oriented businesses and
requiring sufficient lighting will advance the compelling and substantial
governmental interest in curbing the illegal and unsanitary sexual
activity occurring in sexually oriented businesses and will facilitate
enforcement of the provisions of this chapter and other federal, state
and local laws, thereby furthering the compelling and substantial
governmental interest in protecting the public health, safety, and
welfare.
(11)
The disclosure of certain information by those persons ultimately
responsible for the day-to-day operation and maintenance of sexually
oriented businesses, and by employees of such businesses, will facilitate
the enforcement of the provisions of this chapter and other federal,
state and local laws, and will thereby further the compelling and
substantial government interest in protecting the public health, safety,
and welfare.
(12)
A person who recently has been convicted of a sexually related
crime is not an appropriate individual to operate or be employed in
a sexually oriented business.
(13)
Barring such individuals from the management of and employment
in sexually oriented businesses for a period of years serves as a
deterrent to and prevents the commission of sexually related criminal
acts, including conduct which leads to the transmission of sexually
transmitted diseases.
As used in this chapter, the following terms shall have the
meanings indicated:
A natural person who performs any service or work on the
premises of a sexually oriented business, including, but not limited
to, providing entertainment, performing work of a management or supervisory
nature, or performing support functions, 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 on the premises
exclusively for repair or maintenance of the premises or equipment
on the premises, or for the delivery of goods to the premises.
An area on the premises of a sexually oriented business designated
for occupancy exclusively by one or more employees whose duties include
assuring compliance with the provisions of this chapter.
The City Administrator of the City of El Paso.
Urination, defecation, lactation, ejaculation and menstruation.
It shall not mean urination and defecation performed in a public or
employee-only rest room in the manner in which those facilities are
intended to be used, when not performed or presented for a commercial
purpose. It shall not mean lactation as part of breast-feeding an
infant, unless performed or displayed for a commercial purpose other
than education and training in the art, science or technique of breast-feeding
an infant.
With respect to a sexually oriented business license issued
under this chapter, a person in whose name a license to operate a
sexually oriented business has been issued, as well as the individual(s)
designated on the license application as principally responsible for
the operation of the sexually oriented business. With respect to a
sexually oriented business employee license issued under this chapter,
"licensee" means a natural person in whose name a license has been
issued authorizing employment in a sexually oriented business.
The City of El Paso.
Exposing to view specified anatomical areas or any device,
costume, or covering that gives the appearance of or simulates any
specified anatomical areas.
To control or hold primary responsibility for the operation
of a sexually oriented business, either as a business entity, as an
individual, or as part of a group of individuals with shared responsibility.
It shall also mean to cause to function or to put or keep in operation.
A person may be found to be operating or causing to be operated a
sexually oriented business whether or not that person is an owner,
part owner or licensee of the business.
Any person who operates or causes to be operated a sexually
oriented business.
Any natural person who is not an employee.
A natural person, proprietorship, partnership, limited-liability
company, firm, association, joint-stock company, joint venture, corporation
or combination of individuals of whatever form or character.
Exposing to view, with less than a fully opaque covering,
any portion of the female breast below the top of the areola or any
portion of the buttocks. This definition shall include the entire
lower portion of the female breast, but shall not include any portion
of the cleavage of the female breast exhibited by a dress, blouse,
shirt, leotard, bathing suit, or other clothing, provided that the
areola is not exposed in whole or in part.
Any of the following when done in a place where the public is
invited or permitted, or when done for any commercial purpose, including
sale and rental, regardless of who pays or receives the consideration
therefor, and regardless of the form of consideration:
Live exhibition or display of a natural person or people in
the state of nudity or semi-nudity, or engaged in specified sexual
activities or excretory functions.
Engaging in, promoting or permitting a natural person or people
to engage in specified sexual activities or excretory functions.
Offering of physical contact in the form of wrestling or tumbling
between natural persons of the opposite sex, when one or more of the
persons is nude or semi-nude.
Offering of products, services or activities by or with a natural
person or people when one or more of the people, whether a patron,
agent, employee or otherwise, is in a state of nudity or semi-nudity.
Displaying or offering to others any recorded depiction of a
natural person, or created image or character, as in cartoons and
animation, by any medium, including without limitation film, videotape,
closed-circuit television, digital video disc (DVD), laser disc, compact
disc (CD), floppy disc, photograph, slide, television, book, magazine,
and computer software, which is:
Characterized or distinguished by an emphasis on the depiction
or description of specified sexual activities, excretory functions,
or specified anatomical areas; or
Advertised or otherwise held out to the public as being characterized
or distinguished by an emphasis on the depiction or description of
specified sexual activities, excretory functions, or specified anatomical
areas, including, without limitation, the use of the term "adult"
and the use of the designation of one or more "X," such as, but not
limited to, "XXX."
The display and offering to others of novelties, instruments,
devices, or paraphernalia that are designed primarily for use in connection
with specified sexual activities or that give the appearance of or
simulate any of the specified anatomical areas.
The term "sexually oriented business" shall exclude the following:
The display and offering to others of condoms, spermicide or
other nonprescription contraceptives.
The display and offering to others of drugs, instruments or
devices which require a prescription, that are designed primarily
for use in connection with specified sexual activities, and which
are in fact dispensed by or under the supervision of a pharmacist
licensed by the State of Illinois.
The display and offering to others of instruments, devices,
or paraphernalia that are designed primarily for use in connection
with specified sexual activities if they are displayed and offered
to others on the premises where a pharmacist licensed by the State
of Illinois is employed to dispense prescription drugs, instruments
or devices.
Breast-feeding an infant, unless performed or displayed for
a commercial purpose other than education and training in the art,
science or technique of breast feeding an infant.
The display and offering to others of motion pictures, by any
format, which have received a rating from the Motion Picture Association
of America of G, PG, PG-13, R or NC-17, when offered or displayed
substantially in their entirety.
Libraries and museums funded in whole or in part by federal,
state or local governmental funds.
The display and offering to others of items described in Subsection A(5) of this definition, if and only if the display and offering are done for a commercial purpose, and all of the following apply to the business displaying and offering such items to others:
Less than 25% of its gross income comes from the sale, rental
or exhibition of the following types of items:
Items which are characterized or distinguished by an emphasis
on the depiction or description of specified sexual activities, excretory
functions, or specified anatomical areas or any combination thereof;
and
Items which are advertised or otherwise held out to the public
as being characterized or distinguished by an emphasis on the depiction
or description of specified sexual activities, excretory functions,
or specified anatomical areas or any combination thereof, including,
without limitation, the use of the term "adult" and the use of the
designation of one or more "X," such as, but not limited to, "XXX";
and
Less than 25% of its display space is used for the sale, rental
or exhibition of the following types of items:
Items which are characterized or distinguished by an emphasis
on the depiction or description of specified sexual activities, excretory
functions, or specified anatomical areas or any combination thereof;
and
Items which are advertised or otherwise held out to the public
as being characterized or distinguished by an emphasis on the depiction
or description of specified sexual activities, excretory functions,
or specified anatomical areas or any combination thereof, including,
without limitation, the use of the term "adult" and the use of the
designation of one or more "X," such as, but not limited to, "XXX";
and
Less than 25% of the items it offers to others are the following
types of items:
Items which are characterized or distinguished by an emphasis
on the depiction or description of specified sexual activities, excretory
functions, specified anatomical areas or any combination thereof;
and
Items which are advertised or otherwise held out to the public
as being characterized or distinguished by an emphasis on the depiction
or description of specified sexual activities, excretory functions,
or specified anatomical areas or any combination thereof, including,
without limitation, the use of the term "adult" and the use of the
designation of one or more "X," such as, but not limited to, "XXX."
Certain uses which fall within the definition of sexually oriented
business may also constitute uses which are illegal under local, state
or federal law, such as obscenity or child pornography. Even if such
illegal uses constitute a sexually oriented business under the definition
set forth in this chapter, they shall not be permitted uses in any
district, and shall not be permitted to receive a sexually oriented
business license.
The human genitals, pubic area, perineum, anus, anal cleft
or cleavage, pubic hair, any portion of the areola of the female breast
if less than fully and opaquely covered; and the male genitals in
a discernibly turgid state, even if entirely covered by an opaque
covering. In determining whether any of the foregoing portions of
the anatomy are fully and opaquely covered, coverage by make-up, paint,
or similar matter applied directly to the skin shall not be considered
to be fully and opaquely covered.
Any of the following offenses, as set forth in the Illinois
Criminal Code of 2012, as amended, or any substantially similar offenses
to those set forth below under the criminal or penal code of any local
jurisdiction, state, country, or international law:
[Amended 2-6-2017 by Ord.
No. 994]
Indecent solicitation of a child.
Indecent solicitation of an adult.
Adultery.
Fornication.
Public indecency.
Sexual exploitation of a child.
Custodial sexual misconduct.
Presence within school zone by child sex offenders prohibited.
Sexual relations within families.
Bigamy.
Marrying a bigamist.
Prostitution.
Solicitation of a sexual act.
Soliciting for a prostitute.
Soliciting for a juvenile prostitute.
Pandering.
Keeping a place of prostitution.
Keeping a place of juvenile prostitution.
Patronizing a prostitute.
Patronizing a juvenile prostitute.
Pimping.
Juvenile pimping.
Exploitation of a child.
Obscenity.
Child pornography.
Commercial film and photographic print processor-reports.
Harmful material.
Tie-in sales of obscene publications to distributors.
Criminal sexual assault.
Aggravated criminal sexual assault.
Predatory criminal sexual assault of a child.
Criminal sexual abuse.
Aggravated criminal sexual abuse.
Criminal transmission of HIV.
Ritualized abuse of a child.
Female genital mutilation.
Violation of the Sex Offender Registration Act (730 ILCS 150/1
et seq.).
Stalking (if basis of the conviction is the threat of immediate
or future sexual assault, or placing a person in reasonable apprehension
of immediate or future sexual assault).
First degree murder [if the basis for the conviction is 720
ILCS 5/9-1(a)(3), commonly known as "felony murder," where the predicate
felony is any felony otherwise set forth in this definition).
Burglary (if the basis for conviction is an intent to commit
any felony otherwise set forth in this definition).
Residential burglary (if the basis for the conviction is an
intent to commit any felony otherwise set forth in this definition).
Armed violence (if the basis for the conviction is an intent
to commit any felony otherwise set forth in this definition).
Attempt to commit any of the foregoing crimes, conspiracy to
commit any of the foregoing crimes, and any other felony misdemeanor
for which an element of the offense is the commission of the foregoing
crimes or an intent to commit any of the foregoing crimes.
For which:
Less than two 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,
business offense or petty offense; or
Less than five years have elapsed since 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.
The fact that a conviction is being appealed shall not prevent
such conviction from constituting a specified criminal activity as
defined in this chapter.
Any of the following, whether actual or simulated:
The fondling or other erotic touching of human genitals, pubic
area, perineum, anus, anal cleft or cleavage, pubic hair, buttocks,
or female breasts, regardless of whether the performer or recipient
is clothed, in a state of nudity or in a state of semi-nudity.
The manipulation of the human body of another, including massage,
by the use of any portion of the manipulator's body, whether covered
or uncovered, or by any device, if the person performing the manipulation
or the person receiving the manipulation is in a state of nudity or
semi-nudity.
Sex acts, normal or perverted, heterosexual, homosexual or bisexual,
including without limitation intercourse, fellatio, cunnilingus, analingus,
masturbation, bestiality, sodomy, bondage and discipline, sadism and
masochism, and any other act intended to cause sexual arousal.
Sex acts between animals when offered or displayed for the purpose
or with the intent of causing the sexual arousal of a human viewer.
Any of the following:
The sale, lease, or sublease of the business;
The transfer of securities which constitute a controlling interest
in the business, whether by sale, exchange, or similar means; or
The establishment of a trust, gift, or other similar legal device
which transfers the ownership or control of the business, except for
transfers by bequest or other operation of law upon the death of the
person possessing the ownership or control.
A.
No person shall operate a sexually oriented business without a valid
sexually oriented business license issued by the municipality pursuant
to this chapter.
B.
No person shall, in connection with operating a sexually oriented
business, retain the services of a person as an employee who is not
licensed as a sexually oriented business employee by the municipality
pursuant to this chapter.
No person shall act as an employee on the premises of a sexually
oriented business without having secured a sexually oriented business
employee license pursuant to this chapter.
A.
An application for a sexually oriented business license shall be
submitted to the municipality's Clerk on a form provided by the enforcement
officer. The application may request and the applicant shall provide
such information as reasonably necessary (including fingerprints)
to enable the municipality to determine whether the applicant meets
the qualifications established in this chapter.
B.
An application for a sexually oriented business license shall identify
the following persons and be signed under oath by said persons that
the information contained therein is true:
(1)
If the business entity is a sole proprietorship, that sole proprietor.
(2)
If the business entity is a corporation, each officer and director
of the corporation and each individual with a ten-percent or greater
ownership interest in the corporation.
(3)
If the business entity is a partnership, each general partner, and
each limited partner who owns 10% or more of total limited partnership
interest.
(4)
If the business is a limited-liability company, each manager, and
each member with a ten-percent or greater ownership interest in the
company. If the limited-liability company does not have any managers,
then each member.
C.
An application for a sexually oriented business license must designate
one or more natural persons who are to be principally responsible
for the operation of the proposed sexually oriented business, if a
license is granted. At least one natural person so designated must
be involved in the day-to-day operation of the proposed sexually oriented
business on a regular basis. Each natural person so designated, as
well as the business entity itself, shall be considered a license
applicant, must qualify as a licensee under this chapter, and shall
be considered a licensee if a license is granted.
D.
An application for a sexually oriented business license shall be
completed according to the instructions of the application form, which
shall require the following:
(1)
If the applicant is:
(a)
An individual, state the legal name, address, date of birth,
social security number, and any aliases of such individual.
(b)
A partnership, state the complete name of the partnership and all of its partners and whether the partnership is general or limited, and provide a copy of the partnership agreement, if any, and the information specified in Subsection D(1)(a) of this section for each partner.
(c)
A corporation, state the complete name of the corporation and the date of its incorporation, provide evidence that the corporation is in good standing under the laws of its state of incorporation and of Illinois, and state the names and capacity of all officers and directors, the name of the registered corporate agent, and the address of the registered office for service of process, and the information specified in Subsection D(1)(a) of this section for each officer and director.
(d)
A limited-liability company, state the complete name of the company and the date of its organization, provide evidence that the company is in good standing under the laws of its state of organization and of Illinois, and state the names and capacity of all members and managers, the name of the registered agent, and the address of the registered office for service of process, and the information specified in Subsection D(1)(a) of this section for each member and manager;
(2)
If the applicant intends to operate the sexually oriented business
under a name other than that of the applicant, state the fictitious
name to be used and submit copies of documentation evidencing the
registration of the business name under applicable laws.
(3)
State whether any applicant has been convicted of a specified criminal
activity, and if so, the specified criminal activity involved and
the date, place, and jurisdiction of each such conviction.
(4)
State whether any applicant has had a previous license under this
chapter or other similar regulation of another jurisdiction 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 state
whether the applicant has been a partner in a partnership or an officer,
director or ten-percent or greater owner of a corporation, or a member
or manager of a limited-liability company, licensed under this chapter,
whose license has previously been denied, suspended or revoked, including
the name and location of the business for which the permit was denied,
suspended or revoked as well as the date of denial, suspension or
revocation.
(5)
State whether any applicant holds any other licenses under this chapter
or other similar regulation from this or another jurisdiction and,
if so, the names and locations of other such licensed businesses.
(6)
State the nature of the sexually oriented business for which the
applicant is filing.
(7)
State the location of the proposed sexually oriented business, including
a legal description of the property (i.e., block and lot), street
address, telephone number(s), e-mail address and internet website
URL, if any.
(8)
State the mailing address and residential address of each applicant
and each person signing the application.
(9)
Submit a recent photograph of each applicant who is a natural person.
(10)
Submit the fingerprints of each applicant who is a natural person
recorded by the El Paso Police Department.
(11)
For any applicant who is a natural person, describe and identify
the location of any tattoos on such person's face, arms, legs or hands,
or any other anatomical area that normally would be visible when such
person is on the premises of the proposed sexually oriented business.
(12)
State the driver's license number of each applicant who is a
natural person and each person signing the application, or, for an
applicant that is not a natural person, the applicant's federally
issued tax identification number.
(13)
Submit proof that each applicant who is a natural person is
at least 18 years old.
(14)
Submit a sketch or diagram showing the configuration of the
premises of the sexually oriented business, including the location
of all stages, walls, partitions, designated sales areas, bookcases
and patrons' seating, and a statement of total floor space occupied
by the business. The diagram shall also designate the place at which
the sexually oriented business license will be conspicuously posted,
if granted. 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 one
foot.
A.
Upon receipt of a completed application for a sexually oriented business
license, the municipality's Clerk shall immediately file a copy of
the completed application with the enforcement officer.
B.
Upon receipt of a copy of a completed application for a sexually
oriented business license, the enforcement officer, or any peace officer
designated by the enforcement officer, shall promptly investigate
the information provided in the application concerning the criminal
background of the applicants and shall record the results of the investigation
in writing within five days of the completion of the investigation.
If the investigation is done by a peace officer designated by the
enforcement officer, then the written results of the investigation
shall also be filed with the enforcement officer within five days
of the completion of the investigation.
C.
Within five days of receipt of a copy of a completed application
for a sexually oriented business license, the enforcement officer
shall notify the municipality's Fire Chief and Building Department
of such application. In making such notification, the enforcement
officer shall request that the Fire Chief and the Building Department
promptly inspect the premises for which the sexually oriented business
license is sought to assess compliance with the regulations under
their respective jurisdictions.
D.
The Fire Chief shall provide to the enforcement officer a written
certification of whether the premises are in compliance with the Fire
Code within five days of completing the inspection.
E.
The Building Department shall provide the enforcement officer with
a written certification of whether the premises are in compliance
with the Building Code, the Planning and Zoning Code, and the provisions
of this chapter related to physical characteristics of the premises
within five days of completing the inspection.
F.
The enforcement officer shall approve the issuance of a license to
an applicant unless the enforcement officer determines by a preponderance
of the evidence that one or more of the following findings is true:
(1)
An applicant is a natural person under 18 years of age.
(2)
An applicant has failed to provide information reasonably necessary
for issuance of the license as requested on the application form,
or has provided false information.
(3)
An applicant has been denied a sexually oriented business license
or has had a license to operate a sexually oriented business revoked
within the preceding 12 months by any jurisdiction.
(4)
An applicant has been convicted of a specified criminal activity.
(5)
The proposed sexually oriented business or the premises on which it would operate would violate or fail to be in compliance with any provisions of Chapter 315, Zoning, the provisions of this chapter related to physical characteristics of the premises, or any state or federal law.
(6)
The application and investigation fee required by this chapter has
not been paid.
(7)
An applicant is otherwise in violation of or is not in compliance
with any provision of this chapter.
G.
If the enforcement officer determines that no grounds for denial
of a license exist under this section, the enforcement officer shall
not delay approval of the application.
H.
A sexually oriented business license, if granted, shall state on
its face the name of the person or persons to whom it is granted,
the expiration date, and the address of the licensed sexually oriented
business. All sexually oriented business licenses shall be posted
in a conspicuous place at or near the entrance to the business so
that they may be easily read at any time.
I.
The enforcement officer shall advise the applicant in writing of
the reasons for any license denial. The written license denial shall
be either served on the applicant personally or by placing it in a
sealed envelope, addressed to the applicant at the address set forth
in the application, and depositing it with the United States Postal
Service, proper first class postage prepaid. The enforcement officer
may but is not required to serve the written license denial by certified
or registered mail, as set forth above.
A.
An application for a sexually oriented business employee license
shall be submitted to the municipality's Clerk on a form provided
by the enforcement officer. The application may request and the applicant
shall provide such information as reasonably necessary (including
fingerprints) to enable the municipality to determine whether the
applicant meets the qualifications established in this chapter.
B.
An application for a sexually oriented business employee license
shall be completed according to the instructions of the application
form, signed by the applicant under oath that the information contained
therein is true, and shall require the following:
(1)
State the applicant's name and any other names (including "stage"
names) or aliases used by the applicant.
(2)
State the applicant's date and place of birth.
(3)
State the applicant's height, weight, and hair and eye color.
(4)
Submit a recent photograph of the applicant which clearly shows the
applicant's face.
(5)
Submit the applicant's fingerprints, recorded by the El Paso Police
Department.
(6)
Describe and identify the location of any tattoos on the applicant's
face, arms, legs, or hands, or any other anatomical area that normally
would be visible when the applicant is on the premises of the proposed
sexually oriented business.
(7)
State the applicant's present residence address and telephone number.
(8)
State the applicant's present and intended business address and telephone
number, identifying the sexually oriented business at which the applicant
intends employment.
(9)
State the applicant's driver's license number.
(10)
Submit proof that the applicant is at least 18 years old.
(11)
Provide a statement detailing the sexually oriented business
employee license history of the applicant for the five years immediately
preceding the date of the filing of the application, including whether
such applicant previously operated or is seeking to operate a sexually
oriented business, in this or any other jurisdiction, and whether
the applicant has ever had a sexually oriented business license or
a sexually oriented business employee license, permit, or authorization
to do business denied, revoked, or suspended by this or any other
jurisdiction. In the event of any such denial, revocation, or suspension,
state the name of the issuing or denying jurisdiction and describe
in full the reason for the denial, revocation, or suspension. Attach
a copy of any order of denial, revocation, or suspension.
(12)
State whether the applicant has been convicted of a specified
criminal activity and, if so, the specified criminal activity involved
and the date, place and jurisdiction of each such conviction, and
the date of release from confinement, if any, for such conviction.
A.
Upon receipt of a completed application for a sexually oriented business
employee license, the municipality's Clerk shall immediately file
a copy of the completed application with the enforcement officer.
B.
Upon receipt of a copy of a completed application for a sexually
oriented business employee license, the enforcement officer, or any
peace officer designated by the enforcement officer, shall promptly
investigate the information provided in the application concerning
the criminal background of the applicant and shall record the results
of the investigation in writing within five days of the completion
of the investigation. If the investigation is done by a peace officer
designated by the enforcement officer, then the written results of
the investigation shall also be filed with the enforcement officer
within five days of the completion of the investigation.
C.
The enforcement officer shall approve the issuance of a license to
an applicant unless the enforcement officer determines by a preponderance
of the evidence that one or more of the following findings is true:
(1)
The applicant has failed to provide information reasonably necessary
for issuance of the license as requested on the application form,
or has given false information.
(2)
The applicant is under 18 years of age.
(3)
The applicant has been convicted of a specified criminal activity.
(4)
The sexually oriented business employee license is to be used for
employment in a business prohibited by local, state or federal law,
statute, rule or regulation.
(5)
The sexually oriented business where the applicant intends employment
is not a licensed sexually oriented business pursuant to this chapter.
(6)
The applicant has been denied a sexually oriented business license
or a sexually oriented business employee license, or has had a sexually
oriented business license or a sexually oriented business employee
license revoked within the preceding 12 months by any jurisdiction.
D.
The enforcement officer shall advise the applicant in writing of
the reasons for any license denial. The written license denial shall
be either served on the applicant personally or by placing it in a
sealed envelope, addressed to the applicant at the address set forth
in the application, and depositing it with the United States Postal
Service, proper first class postage prepaid. The enforcement officer
may but is not required to serve the written license denial by certified
or registered mail, as set forth above.
[Amended 2-6-2017 by Ord.
No. 994]
A.
Every application for a new sexually oriented business license shall
be accompanied by a nonrefundable application and investigation fee
as set forth in the fee schedule.
B.
Every application for renewal of a sexually oriented business license
shall be accompanied by a nonrefundable application and investigation
fee as set forth in the fee schedule.
C.
In addition to the application and investigation fee required in Subsection A or B of this section, every applicant that is granted a sexually oriented business license (new or renewal) shall pay to the municipality an annual, nonrefundable license fee as set forth in the fee schedule, prior to or at the time of issuance or renewal.
D.
Every application for a new sexually oriented business employee license
shall be accompanied by an annual, nonrefundable application, investigation,
and license fee as set forth in the fee schedule.
E.
Every application for renewal of a sexually oriented business employee
license shall be accompanied by an annual, nonrefundable application,
investigation and license fee as set forth in the fee schedule.
A.
Each license issued pursuant to this chapter shall expire one year
from the date of issuance and may be renewed by making application
as provided in this section. Application for renewal shall be made
no more than 90 days and no less than 28 days before the expiration
date. If the application is made less than 28 days before the expiration
date, the license will not be extended pending a decision on the application,
but will expire on its normal expiration date.
B.
An application for renewal of a sexually oriented business license
or sexually oriented business employee license shall be submitted
to the municipality's Clerk on a form provided by the enforcement
officer. The renewal application may request and the applicant shall
provide such information as reasonably necessary to enable the municipality
to determine whether the applicant meets the qualifications established
in this chapter. The completed renewal application shall describe
any changes or additions to, or deletions from, the information provided
in the applicant's initial license application. The completed renewal
application shall be accompanied by copies of any document or material
submitted in connection with the initial license application that
has been revised or requires revision to reflect any change in circumstances
or conditions. Sketches or diagrams submitted with an initial sexually
oriented business license application may be resubmitted with subsequent
renewal applications, provided that the applicant certifies in writing
that the sketch or diagram still depicts the premises accurately.
C.
The enforcement officer shall make the determination concerning the
approval license renewals based on the same criteria and using the
same procedures used to evaluate applications for new licenses under
this chapter.
D.
The enforcement officer shall advise the applicant in writing of
the reasons for any renewal denial, and shall serve the written renewal
denial on the applicant in the same manner as a denial of an initial
application.
E.
When the enforcement officer denies an application for renewal of
a license, the applicant shall not be issued another license for one
year from the date of denial.
A.
The enforcement officer shall suspend a sexually oriented business
license for a period not to exceed 30 days if the enforcement officer
determines that a licensee:
B.
The enforcement officer shall suspend a sexually oriented business employee license for a period not to exceed 30 days if the enforcement officer determines that a licensee has violated or is not in compliance with any section of this chapter, except as set forth in § 241-12C.
C.
The enforcement officer shall advise the licensee in writing of the
reasons for any suspension. The written suspension shall be either
served on the applicant personally on or before five days before the
suspension is to take effect, or by placing it in a sealed envelope,
addressed to the licensee at the address set forth in the application,
and depositing it with the United States Postal Service, proper first
class postage prepaid, on or before five days before the suspension
is to take effect. The enforcement officer may but is not required
to serve the written suspension by certified or registered mail, as
set forth above.
A.
The enforcement officer shall revoke a sexually oriented business license or sexually oriented business employee license if a cause of suspension under § 241-11 of this chapter occurs and the license has been suspended two times within the preceding 12 months.
B.
The enforcement officer shall revoke a sexually oriented business
license if he/she determines that:
(1)
A licensee gave false or misleading information in the material submitted
during the application or renewal process;
(2)
A licensee has knowingly allowed possession, use, or sale of controlled
substances on the premises;
(3)
A licensee has knowingly allowed any specific criminal activity,
or the commission of any felony on the premises;
(4)
A licensee knowingly operated the sexually oriented business during
a period of time when the licensee's license was pending initial application,
expired or suspended;
(5)
A licensee has knowingly allowed one or more specified sexual activities
to occur in or on the licensed premises;
(6)
A licensee has been convicted of a specified criminal activity during
the term of the license; or
(7)
A licensee is delinquent in payment to the municipality for any taxes
or fees past due that were assessed or imposed in relation to any
business or business property.
C.
The enforcement officer shall revoke a sexually oriented business
employee license if he/she determines that:
(1)
The licensee gave false or misleading information in the material
submitted during the application or renewal process;
(2)
The licensee has knowingly acted as an employee on the premises of
a sexually oriented business during a period of time when the licensee's
license was pending initial application, expired or suspended; or
(3)
The licensee has been convicted of a specified criminal activity
during the term of the license.
D.
The enforcement officer shall advise the licensee in writing of the
reasons for any revocation. The written revocation shall be either
served on the applicant personally on or before five days before the
revocation is to take effect, or by placing it in a sealed envelope,
addressed to the licensee at the address set forth in the application,
and depositing it with the United States Postal Service, proper first
class postage prepaid, on or before five days before the revocation
is to take effect. The enforcement officer may but is not required
to serve the written revocation by certified or registered mail, as
set forth above.
E.
When the enforcement officer revokes a license, the licensee shall
not be issued another license for one year from the date the revocation
became effective.
A.
Any denial, suspension, or revocation of a new or renewal license
under this chapter may be appealed to the Mayor by written notice
filed with the municipality's Clerk within 10 days of the effective
date of such denial, suspension, or revocation.
B.
The Mayor shall notify the appellant in writing of the date of the
hearing on the appeal. The written notice shall be either served on
the appellant personally on or before five days before the hearing,
or by placing it in a sealed envelope, addressed to the appellant
at the address set forth in the application, and depositing it with
the United States Postal Service, proper first class postage prepaid,
on or before seven days before the hearing. The Mayor may but is not
required to serve the written notice by certified or registered mail,
as set forth above.
C.
The Mayor shall conduct a hearing on the appeal within 14 days of
receipt of the written notice of appeal by the municipality's Clerk,
at which hearing the appellant may present witnesses or other evidence
opposing the denial, suspension or revocation. The enforcement officer
may also present witnesses or other evidence supporting the denial,
suspension or revocation. Both parties shall have the right to cross-examine
witnesses.
D.
The Mayor shall determine whether the preponderance of the evidence
presented at the hearing supported the decision of the enforcement
officer to deny, suspend or revoke the license of the appellant.
E.
The Mayor shall issue a written decision setting forth his findings
regarding the evidence presented at the hearing, and his decision
to affirm or overrule the decision of the enforcement officer. The
Mayor shall serve a copy of his written decision on the appellant
and the enforcement officer in writing. The written decision shall
be either served on the parties personally on or before five days
after the date of the hearing, or by placing it in a sealed envelope,
addressed to the respective parties at the address set forth in the
application and at the enforcement officer's ordinary business address,
and depositing it with the United States Postal Service, proper first
class postage prepaid, on or before five days after the hearing. The
Mayor may but is not required to serve the written decision by certified
or registered mail, as set forth above.
F.
The written decision of the Mayor shall be considered a final decision.
A.
A sexually oriented business license is not transferable from one
licensee to another or from one location to another. Any purported
transfer of a sexually oriented business license shall automatically
and immediately revoke that license.
B.
A sexually oriented business employee license is not transferable
from one licensee to another, but the use of the license by the individual
to whom it was issued may be transferred from one licensed sexually
oriented business to another such licensed establishment during the
term of the license, provided that the licensee gives written notice
of such transfer to the enforcement officer within 15 days after such
transfer.
A.
No employee on the premises of a sexually oriented business may engage
in any specified criminal activity, specified sexual activities or
excretory functions.
B.
Any employee appearing on the premises of a sexually oriented business,
in a place that can be viewed by patrons, when said employee is in
a state of nudity or semi-nudity, must be on a stage that is at least
45 inches from the floor, and at a distance at least 72 inches from
all parts of a clearly designated area in which patrons will be present,
and no patron shall be permitted in any area closer than 72 inches
to the stage.
C.
No employee appearing on the premises of a sexually oriented business
in a state of nudity or semi-nudity may intentionally or knowingly
touch a patron or a patron's clothing or permit himself or herself
to be touched by a patron or a patron's clothing. No employee may
intentionally or knowingly touch a patron's genitals, pubic area,
perineum, anus, anal cleft or cleavage, buttocks, pubic hair, or female
breast either directly or through clothing or other covering. No employee
may intentionally or knowingly permit a patron to touch the employee's
genitals, pubic area, perineum, anus, anal cleft or cleavage, buttocks,
pubic hair, or female breast either directly or through clothing or
other covering. For purposes of this subsection, touching need not
be accomplished by the hand, and includes the touching by any part
of the toucher's body, clothing or device held by the toucher.
D.
Dressing rooms. All sexually oriented businesses that offer live
entertainment must provide separate dressing room facilities for female
and male employees, which shall not be occupied or used in any way
by anyone other than employees.
E.
Minors prohibited. No person under the age of 18 years shall be permitted
on the premises of a sexually oriented business. Mistake of age is
not a defense to a charge under this section, unless the person under
the age of 18 who was permitted on the premises exhibited to the employee
a driver's license, or other apparently official government-issued
identification card bearing the patron's photograph, and purporting
to show that the person was 18 years of age or over, and the employee
to whom that document was exhibited did not otherwise have reasonable
cause to believe that the person seeking admittance was under 18 years
of age.
F.
Hours of operation. No sexually oriented business shall remain open
at any time between the hours of 12:00 midnight and 7:00 a.m. on weekdays
and Saturdays, and 12:00 midnight and 12:00 noon on Sundays, nor shall
any entertainment, service, or product be provided to a patron on
the premises of a sexually oriented business during those hours.
G.
Minimum lighting level.
(1)
The premises of every sexually oriented business shall be equipped
with overhead lighting fixtures of sufficient intensity to illuminate
every place to which patrons are permitted access, including rest
rooms, at an illumination level of not less than 150 footcandles as
measured at floor level.
(2)
The illumination described in Subsection G(1) shall be maintained at all times that any patron is present in the premises. In the event of a power failure, the business shall stop operating immediately and all patrons shall be cleared from the premises. The premises shall not be reopened until the minimum illumination level is restored.
H.
Exterior display. No sexually oriented business shall be operated
in any manner that permits the observation from outside the premises
of any image, material or entertainment depicting or describing excretory
functions, specified sexual activities or specified anatomical areas
or any person in a state of nudity or semi-nudity, whether by means
of display, decoration, sign, window or any other means.
I.
Liquor license prohibited. No liquor license of any class shall be
issued by municipality to any sexually oriented business involving
adult uses as defined in this chapter.
J.
Consumption of alcoholic beverages prohibited. It shall be unlawful
for any patron to possess or consume any alcoholic beverage on the
premises of a sexually oriented business. It shall also be unlawful
for any operator to serve any alcoholic beverage to any patron or
to permit any patron to possess or consume any alcoholic beverage
on the premises of a sexually oriented business.
A.
Any person who violates or who intentionally or knowingly permits
the violation of any section of this chapter shall be fined the amount
of $750 and may additionally be sentenced to a term of incarceration
not to exceed six months.
B.
Each day that a sexually oriented business or employee operates in
violation of this chapter shall constitute a separate offense or violation.
Any person who operates or causes to be operated a sexually oriented business in violation of this chapter is subject to a suit for injunction as well as prosecution for chapter violations as provided in § 241-16 of this chapter.
