[HISTORY: Adopted by the Township Board of Trustees of the
Charter Township of Pittsfield 2-25-2015 by Ord. No. 317 as Ch. 23 of the 2015
Pittsfield Charter Township Code. Amendments noted where applicable.]
A.
Whereas, sexually oriented businesses require special supervision
from the public safety agencies of the Township in order to protect
and preserve the health, safety, and welfare of the patrons of such
businesses as well as the citizens of the Township; and
B.
Whereas, the Board of Trustees finds that sexually oriented businesses,
as a category of establishments, are frequently used for unlawful
sexual activities, including prostitution and sexual liaisons of a
casual nature; and
C.
Whereas, there is convincing documented evidence that sexually oriented
businesses, as a category of establishments, have deleterious secondary
effects and are often associated with crime and adverse effects on
surrounding properties; and
D.
Whereas, the Board of Trustees desires to minimize and control these
adverse effects and thereby protect the health, safety, and welfare
of the citizenry; protect the citizens from crime; preserve the quality
of life; preserve the character of surrounding neighborhoods and deter
the spread of urban blight; and
E.
Whereas, certain sexually oriented products and services offered
to the public are recognized as not inherently expressive and not
protected by the First Amendment, see, e.g., Heideman v. South Salt
Lake City, 348 F.3d 1182, 1195 (10th Cir. 2003) ("On its face, the
Ordinance applies to all 'sexually oriented businesses,'
which include establishments such as 'adult motels' and 'adult
novelty stores,' which are not engaged in expressive activity.");
Sewell v. Georgia, 233 S.E.2d 187 (Ga. 1977), dismissed for want of
a substantial federal question, 435 U.S. 982 (1978) (sexual devices);
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 224 (1990) (escort services
and sexual encounter services); and
F.
Whereas, there is documented evidence of sexually oriented businesses,
including adult bookstores and adult video stores, manipulating their
inventory and/or business practices to avoid regulation while retaining
their essentially "adult" nature, see, e.g., Z.J. Gifts D-4, L.L.C.
v. City of Littleton, Civil Action No. 99-N-1696, Memorandum Decision
and Order (D. Colo. March 31, 2001) (finding retail adult store's
"argument that it is not an adult entertainment establishment" to
be "frivolous at best"); People ex rel. Deters v. The Lion's
Den, Inc., Case No. 04-CH-26, Modified Permanent Injunction Order
(III. Fourth Judicial Circuit, Effingham County, July 13, 2005) (noting
that "the accuracy and credibility" of the evidence on inventory in
adult retail store was suspect, and that testimony was "less than
candid" and "suggested an intention to obscure the actual amount of
sexually explicit material sold"); City of New York v. Hommes, 724
N.E.2d 368 (N.Y. 1999) (documenting manipulation of inventory to avoid
adult classification); Taylor v. State, No. 01-01-00505-CR, 2002 WL
1722154 (Tex. App. July 25, 2002) (noting that "the nonadult video
selections appeared old and several of its display cases were covered
with cobwebs"); and
G.
Whereas, the manner in which an establishment holds itself out to
the public is a reasonable consideration in determining whether the
establishment is a sexually oriented business, see, e.g., East Brooks
Books, Inc. v. Shelby County, 588 F.3d 360, 365 (6th Cir. 2009) ("A
prominent display advertising an establishment as an 'adult store,'
moreover, is a more objective indicator that the store is of the kind
the Act aims to regulate, than the mere share of its stock or trade
comprised of adult materials."); FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 261 (1991) (Scalia, J., concurring in part and dissenting
in part) ("[I]t is most implausible that any enterprise which has
as its constant intentional objective the sale of such [sexual] material
does not advertise or promote it as such."); Patterson v. City of
Grand Forks, Case No. 18-2012-CV-00742 (Nov. 1, 2012) (upholding sex
paraphernalia store location restriction which exempted stores in
regional shopping malls because malls on are on large parcels that
buffer sensitive land uses, have their own security personnel, and
limit signage and hours of operation); see also Johnson v. California
State Bd. of Accountancy, 72 F.3d 1427 (9th Cir. 1995) (rejecting
First Amendment challenge to statute which used the phrase "holding
out" to identify conduct indicative of the practice of public accountancy,
but did not ban any speech); Spencer v. World Vision, Inc., 633 F.3d
723 (9th Cir. 2010) (O'Scannlain, J., concurring) (concluding
that whether an entity "holds itself out" as religious is a neutral
factor and that factor helps to ensure that the entity is a bona fide
religious entity); and
H.
Whereas, the Township intends to regulate such businesses as sexually
oriented businesses through a narrowly tailored ordinance designed
to serve the substantial government interest in preventing the negative
secondary effects of sexually oriented businesses; and
I.
Whereas, the Township's regulations shall be narrowly construed
to accomplish this end; and
J.
Whereas, the Township recognizes its constitutional duty to interpret
and construe its laws to comply with constitutional requirements as
they are announced; and
K.
Whereas, with the passage of any ordinance, the Township and the
Board of Trustees accept as binding the applicability of general principles
of criminal and civil law and procedure and the rights and obligations
under the United States and Michigan Constitutions, Michigan Code,
and the Michigan Rules of Civil and Criminal Procedure; and
L.
Whereas, it is not the intent of this ordinance to suppress any speech
activities protected by the U.S. Constitution or the Michigan Constitution,
but to enact ordinance to further the content-neutral governmental
interests of the Township, to wit, the controlling of secondary effects
of sexually oriented businesses.
M.
Now, therefore, Pittsfield Charter Township, Washtenaw County, Michigan
hereby ordains that the following ordinance be enacted.
A.
Purpose. It is the purpose of this chapter to regulate sexually oriented
businesses in order to promote the health, safety, and general welfare
of the citizens of the Township, and to establish reasonable and uniform
regulations to prevent the deleterious secondary effects of sexually
oriented businesses within the Township. The provisions of this chapter
have neither the purpose nor effect of imposing a limitation or restriction
on the content or reasonable access to any communicative materials,
including sexually oriented materials. Similarly, it is neither the
intent nor effect of this chapter to restrict or deny access by adults
to sexually oriented materials protected by the First Amendment, or
to deny access by the distributors and exhibitors of sexually oriented
entertainment to their intended market. Neither is it the intent nor
effect of this chapter to condone or legitimize the distribution of
obscene material.
B.
Findings and rationale.
(1)
Based on evidence of the adverse secondary effects of adult uses
presented in hearings and in reports made available to the Board of
Trustees, and on findings, interpretations, and narrowing constructions
incorporated in the cases of City of Littleton v. Z.J. Gifts D-4,
L.L.C., 541 U.S. 774 (2004); City of Los Angeles v. Alameda Books,
Inc., 535 U.S. 425 (2002); City of Erie v. Pap's A.M., 529 U.S.
277 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); Barnes
v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. LaRue, 409
U.S. 109 (1972); N.Y. State Liquor Authority v. Bellanca, 452 U.S.
714 (1981); Sewell v. Georgia, 435 U.S. 982 (1978); FW/PBS, Inc. v.
City of Dallas, 493 U.S. 215 (1990); City of Dallas v. Stanglin, 490
U.S. 19 (1989); and
Entm't Prods., Inc. v. Shelby County, 721 F.3d 729 (6th
Cir. 2013); Lund v. City of Fall River, 714 F.3d 65 (1st Cir. 2013);
Imaginary Images, Inc. v. Evans, 612F.3d 736 (4th Cir. 2010); LLEH,
Inc. v. Wichita County, 289 F.3d 358 (5th Cir. 2002); Ocello v. Koster,
354 S.W.3d 187 (Mo. 2011); 84 Video/Newsstand, Inc. v. Sartini, 2011
WL 3904097 (6th Cir. Sept. 7, 2011); Plaza Group Properties, LLC v.
Spencer County Plan Commission, 877 N.E.2d 877 (Ind. Ct. App. 2007);
Flanigan's Enters., Inc. v. Fulton County, 596 F.3d 1265 (11th
Cir. 2010); East Brooks Books, Inc. v. Shelby County, 588 F.3d 360
(6th Cir. 2009); Entm't Prods., Inc. v. Shelby County, 588 F.3d
372 (6th Cir. 2009); Sensations, Inc. v. City of Grand Rapids, 526
F.3d 291 (6th Cir. 2008); World Wide Video of Washington, Inc. v.
City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Ben's Bar, Inc.
v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); Peek-a-Boo Lounge
v. Manatee County, 630 F.3d 1346 (11th Cir. 2011); Daytona Grand,
Inc. v. City of Daytona Beach, 490 F.3d 860 (11th Cir. 2007); Heideman
v. South Salt Lake City, 348 F.3d 1182 (10th Cir. 2003); Williams
v. Morgan, 478 F.3d 1316 (11th Cir. 2007); Jacksonville Property Rights
Ass'n, Inc. v. City of Jacksonville, 635 F.3d 1266 (11th Cir.
2011); H&A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th
Cir. 2007); Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th
Cir. 1995); Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546
(5th Cir. 2006); Illinois One News, Inc. v. City of Marshall, 477
F.3d 461 (7th Cir. 2007); G.M. Enterprises, Inc. v. Town of St. Joseph,
350 F.3d 631 (7th Cir. 2003); Richland Bookmart, Inc. v. Knox County,
555 F.3d 512 (6th Cir. 2009); Bigg Wolf Discount Video Movie Sales,
Inc. v. Montgomery County, 256 F. Supp. 2d 385 (D. Md. 2003); Richland
Bookmart, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998); Spokane Arcade,
Inc. v. City of Spokane, 75 F.3d 663 (9th Cir. 1996); DCR, Inc. v.
Pierce County, 964 P.2d 380 (Wash. Ct. App. 1998); City of New York
v. Hommes, 724 N.E.2d 368 (N.Y. 1999); Fantasyland Video, Inc. v.
County of San Diego, 505 F.3d 996 (9th Cir. 2007); Bronco's Entm't,
Ltd. v. Charter Twp. of Van Buren, 421 F.3d 440 (6th Cir. 2005); Charter
Twp. of Van Buren v. Garter Belt, Inc., 258 Mich. App. 594 (2003);
Jott, Inc. v. Clinton Twp., 224 Mich. App. 513 (1997); Michigan ex
rel. Wayne County Prosecutor v. Dizzy Duck, 449 Mich. 353 (1995);
Gora v. City of Ferndale, 456 Mich. 704 (1998); Rental Property Owners
Ass'n of Kent County v. City of Grand Rapids, 455 Mich. 246 (1996);
15192 Thirteen Mile Road, Inc. v. City of Warren, 626 F. Supp. 803
(E.D. Mich. 1985); City of Warren v. Executive Art Studio, Inc., No.
197353, 1998 WL 1993022 (Mich. App. Feb. 13, 1998); Tally v. City
of Detroit, 54 Mich. App. 328 (1974); Z.J. Gifts D-2, L.L.C. v. City
of Aurora, 136 F.3d 683 (10th Cir. 1998); ILQ Investments, Inc. v.
City of Rochester, 25 F.3d 1413 (8th Cir. 1994); Enlightened Reading,
Inc. v. Jackson County, 2009 WL 792492 (W.D. Mo. March 24, 2009);
MJJG Restaurant, LLC v. Horry County, 2014 WL 1314445 (D.S.C. Mar.
28, 2014); Cricket Store 17, LLC v. City of Columbia, — F.Supp.2d
—, 2014 WL 526339 (D.S.C. Feb. 10, 2014); Taylor v. State, No.
01-01-00505-CR, 2002 WL 1722154 (Tex. App. July 25, 2002); Gammoh
v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005); Z.J. Gifts D-4,
L.L.C. v. City of Littleton, Civil Action No. 99-N-1696, Memorandum
Decision and Order (D. Colo. March 31, 2001); People ex rel. Deters
v. The Lion's Den, Inc., Case No. 04-CH-26, Modified Permanent
Injunction Order (III. Fourth Judicial Circuit, Effingham County,
July 13, 2005); Reliable Consultants, Inc. v. City of Kennedale, No.
4:05-CV-166-A, Findings of Fact and Conclusions of Law (N.D. Tex.
May 26, 2005); Warren Gifts, LLC v. City of Warren, No. 2:02-cv-70062,
R. 26 (E.D. Mich. June 21, 2002) (denying motion for preliminary injunction);
Patterson v. City of Grand Forks, Case No. 18-2012-CV-00742, Memorandum
Decision and Order (Grand Forks Cnty. Dist. Ct. Nov. 1, 2012); and
based upon reports concerning secondary effects occurring in and around
sexually oriented businesses, including, but not limited to, "Correlates
of Current Transactional Sex among a Sample of Female Exotic Dancers
in Baltimore, MD," Journal of Urban Health (2011); "Does the Presence
of Sexually Oriented Businesses Relate to Increased Levels of Crime?"
Crime & Delinquency (2012) (Louisville, KY); Metropolis, Illinois
— 2011-12; Manatee County, Florida — 2007; Hillsborough
County, Florida — 2006; Clarksville, Indiana — 2009; El
Paso, Texas — 2008; Memphis, Tennessee — 2006; New Albany,
Indiana — 2009; Louisville, Kentucky — 2004; Fulton County,
GA — 2001; Chattanooga, Tennessee — 1999-2003; Jackson
County, Missouri — 2008; Ft. Worth, Texas — 2004; Kennedale,
Texas — 2005; Greensboro, North Carolina — 2003; Dallas,
Texas — 1997; Houston, Texas — 1997, 1983; Phoenix, Arizona
— 1995-98, 1979; Tucson, Arizona — 1990; Spokane, Washington
— 2001; St. Cloud, Minnesota — 1994; Austin, Texas —
1986; Indianapolis, Indiana — 1984, 2009; Garden Grove, California
— 1991; Los Angeles, California — 1977; Whittier, California
— 1978; Oklahoma City, Oklahoma — 1986; New York, New
York Times Square — 1994; the Report of the Attorney General's
Working Group On The Regulation Of Sexually Oriented Businesses, (June
6, 1989, State of Minnesota); Dallas, Texas — 2007; "Rural Hotspots:
The Case of Adult Businesses," 19 Criminal Justice Policy Review 153
(2008); "Stripclubs According to Strippers: Exposing Workplace Sexual
Violence," by Kelly Holsopple, Program Director, Freedom and Justice
Center for Prostitution Resources, Minneapolis, Minnesota; "Sexually
Oriented Businesses: An Insider's View," by David Sherman, presented
to the Michigan House Committee on Ethics and Constitutional Law,
Jan. 12, 2000; Sex Store Statistics and Articles; and Law Enforcement
and Private Investigator Affidavits (Adult Cabarets in Forest Park,
GA and Sandy Springs, GA).
(2)
The Board of Trustees finds:
(a)
Sexually oriented businesses, as a category of commercial uses,
are associated with a wide variety of adverse secondary effects, including,
but not limited to, personal and property crimes, prostitution, potential
spread of disease, lewdness, public indecency, obscenity, illicit
drug use and drug trafficking, negative impacts on surrounding properties,
urban blight, litter, and sexual assault and exploitation. Alcohol
consumption impairs judgment and lowers inhibitions, thereby increasing
the risk of adverse secondary effects.
(b)
Sexually oriented businesses should be separated from sensitive
land uses to minimize the impact of their secondary effects upon such
uses, and should be separated from other sexually oriented businesses,
to minimize the secondary effects associated with such uses and to
prevent an unnecessary concentration of sexually oriented businesses
in one area.
(c)
Each of the foregoing negative secondary effects constitutes
a harm which the Township has a substantial government interest in
preventing and/or abating. This substantial government interest in
preventing secondary effects, which is the Township's rationale
for this chapter, exists independent of any comparative analysis between
sexually oriented and nonsexually oriented businesses. Additionally,
the Township's interest in regulating sexually oriented businesses
extends to preventing future secondary effects of either current or
future sexually oriented businesses that may locate in the Township.
The Township finds that the cases and documentation relied on in this
chapter are reasonably believed to be relevant to said secondary effects.
C.
The Township hereby adopts and incorporates herein its stated findings
and legislative record related to the adverse secondary effects of
sexually oriented businesses, including the judicial opinions and
reports related to such secondary effects.
For purposes of this chapter, the words and phrases defined
in this section shall have the meanings therein respectively ascribed
to them unless a different meaning is clearly indicated by the context.
A commercial establishment which, as one of its principal
business activities, offers for sale or rental for any form of consideration
any one or more of the following: books, magazines, periodicals or
other printed matter, or photographs, films, motion pictures, video
cassettes, compact discs, digital video discs, slides, or other visual
representations which are characterized by their emphasis upon the
display of specified sexual activities or specified anatomical areas.
A "principal business activity" exists where the commercial establishment
meets any one or more of the following criteria:
At least 35% of the establishment's displayed merchandise
consists of said items; or
At least 35% of the retail value (defined as the price charged
to customers) of the establishment's displayed merchandise consists
of said items; or
At least 35% of the establishment's revenues derive from
the sale or rental, for any form of consideration, of said items;
or
The establishment maintains at least 35% of its floor space
for the display, sale, and/or rental of said items (aisles and walkways
used to access said items, as well as cashier stations where said
items are rented or sold, shall be included in "floor space" maintained
for the display, sale, or rental of said items); or
The establishment maintains at least 500 square feet of its
floor space for the display, sale, and/or rental of said items (aisles
and walkways used to access said items, as well as cashier stations
where said items are rented or sold, shall be included in "floor space"
maintained for the display, sale, or rental of said items); or
The establishment regularly offers for sale or rental at least
2,000 of said items; or
The establishment maintains an "adult arcade," which means any
place to which the public is permitted or invited wherein coin-operated
or slug-operated or electronically, electrically, or mechanically
controlled still or motion-picture machines, projectors, or other
image-producing devices are regularly maintained to show images to
five or fewer persons per machine at any one time, and where the images
so displayed are characterized by their emphasis upon matter exhibiting
specified sexual activities or specified anatomical areas.
A nightclub, bar, juice bar, restaurant, bottle club, or
similar commercial establishment that regularly features live conduct
characterized by seminudity. No establishment shall avoid classification
as an adult cabaret by offering or featuring nudity.
A commercial establishment where films, motion pictures,
videocassettes, slides, or similar photographic reproductions which
are characterized by their emphasis upon the display of specified
sexual activities or specified anatomical areas are regularly shown
to more than five persons for any form of consideration.
Describing the essential character or quality of an item.
As applied in this chapter, no business shall be classified as a sexually
oriented business by virtue of showing, selling, or renting materials
rated NC-17 or R by the Motion Picture Association of America.
Describe and pertain to any person who performs any service
on the premises of a sexually oriented business, on a full-time, part-time,
or contract basis, regardless of whether the person is denominated
an employee, independent contractor, agent, lessee, or otherwise.
"Employee" does not include a person exclusively on the premises for
repair or maintenance of the premises or for the delivery of goods
to the premises.
Includes any of the following:
The opening or commencement of any sexually oriented business
as a new business;
The conversion of an existing business, whether or not a sexually
oriented business, to any sexually oriented business; or
The addition of any sexually oriented business to any other
existing sexually oriented business.
To give special prominence to.
The floor area inside an establishment that is visible or
accessible to patrons for any reason, excluding restrooms.
An attorney, not an employee of the Township, who is licensed
to practice law in Michigan, and retained to serve as an independent
tribunal to conduct hearings under this chapter.
Any of the following:
The actual power to operate the sexually oriented business or
control the operation, management or policies of the sexually oriented
business or legal entity which operates the sexually oriented business;
Ownership of a financial interest of 30% or more of a business
or of any class of voting securities of a business; or
Holding an office (e.g., president, vice president, secretary,
treasurer, managing member, managing director, etc.) in a legal entity
which operates the sexually oriented business.
A person in whose name a license to operate a sexually oriented
business has been issued, as well as the individual or individuals
listed as an applicant on the application for a sexually oriented
business license. In the case of an "employee," it shall mean the
person in whose name the sexually oriented business employee license
has been issued.
The showing of the human male or female genitals, pubic area,
vulva, or anus with less than a fully opaque covering, or the showing
of the female breast with less than a fully opaque covering of any
part of the nipple and areola.
Any person on the premises of a sexually oriented business
who manages, supervises, or controls the business or a portion thereof.
A person may be found to be an operator regardless of whether such
person is an owner, part owner, or licensee of the business.
An individual, proprietorship, partnership, corporation,
association, or other legal entity.
The real property upon which the sexually oriented business
is located, and all appurtenances thereto and buildings thereon, including,
but not limited to, the sexually oriented business, the grounds, private
walkways, and parking lots and/or parking garages adjacent thereto,
under the ownership, control, or supervision of the licensee, as described
in the application for a sexually oriented business license.
A group of retail and other commercial establishments that
is planned, developed, and managed as a single property, with onsite
parking provided around the perimeter of the shopping center, and
that is generally at least 40 acres in size and flanked by two or
more large "anchor" stores, such as department stores. The common
walkway or "mall" is enclosed, climate-controlled and lighted, usually
with an inward orientation of the stores facing the walkway.
The consistent and repeated doing of an act on an ongoing
basis.
A place where persons regularly appear in a state of seminudity
for money or any form of consideration in order to be observed, sketched,
drawn, painted, sculptured, photographed, or similarly depicted by
other persons. This definition does not apply to any place where persons
appearing in a state of seminudity did so in a class operated:
By a college, junior college, or university supported entirely
or partly by taxation;
By a private college or university which maintains and operates
educational programs in which credits are transferable to a college,
junior college, or university supported entirely or partly by taxation;
or
The showing of the female breast below a horizontal line
across the top of the areola and extending across the width of the
breast at that point, or the showing of the male or female buttocks.
This definition shall include the lower portion of the human female
breast, but shall not include any portion of the cleavage of the human
female breasts exhibited by a bikini, dress, blouse, shirt, leotard,
or similar wearing apparel, provided the areola is not exposed in
whole or in part.
A commercial establishment that regularly features sexual
devices. This definition shall not be construed to include any:
Any three-dimensional object designed for stimulation of
the male or female human genitals, anus, buttocks, female breast,
or for sadomasochistic use or abuse of oneself or others and shall
include devices commonly known as dildos, vibrators, penis pumps,
cock rings, anal beads, butt plugs, nipple clamps, and physical representations
of the human genital organs. Nothing in this definition shall be construed
to include devices primarily intended for protection against sexually
transmitted diseases or for preventing pregnancy.
An adult bookstore or adult video store, an adult cabaret,
an adult motion-picture theater, a seminude model studio or a sex
paraphernalia store.
Includes:
Any of the following specified crimes for which less than
five years has elapsed since the date of conviction or the date of
release from confinement for the conviction, whichever is the later
date:
Criminal sexual conduct (MCL 750.520b to 750.520e);
Sex offenses concerning a minor (MCL 750.142 to 750.145c);
Indecent exposure (MCL 750.335a);
Gross indecency (MCL 750.338 to 750.338b);
Soliciting and accosting, pandering, prostitution, and related
offenses (MCL 750.448 to 750.462);
Obscenity (MCL 752.365);
Controlled substance offenses (MCL 333.7401 to 333.7455);
Money laundering (MCL 750.411k to 750.411p);
Assault and related offenses (MCL 750.81 to 750.90c);
Any attempt, solicitation, or conspiracy to commit one of the
foregoing offenses; or
Any offense in another jurisdiction that, had the predicate
act(s) been committed in Michigan, would have constituted any of the
foregoing offenses.
Any of the following:
Pittsfield Charter Township, Michigan.
Any of the following:
The sale, lease, or sublease of the business;
The transfer of securities which constitute an influential interest
in the business, whether by sale, exchange, or similar means; or
The establishment of a trust, gift, or other similar legal device
which transfers the ownership or control of the business, except for
transfer by bequest or other operation of law upon the death of the
person possessing the ownership or control.
The room, booth, or area where a patron of a sexually oriented
business would ordinarily be positioned while watching a film, videocassette,
digital video disc, or other video reproduction.
A.
Sexually oriented business license. It shall be unlawful for any
person to operate a sexually oriented business in the Township without
a valid sexually oriented business license.
B.
Employee license. It shall be unlawful for any person to be an employee,
as defined in this chapter, of a sexually oriented business in the
Township without a valid sexually oriented business employee license,
except that a person who is a licensee under a valid sexually oriented
business license shall not be required to also obtain a sexually oriented
business employee license. It shall be unlawful for any person who
operates a sexually oriented business to employ a person at the establishment
who does not have a valid sexually oriented business employee license.
C.
Application.
(1)
An applicant for a sexually oriented business license or a sexually oriented business employee license shall file in person at the office of the Township Clerk a completed application made on a form provided by the Township Clerk. A sexually oriented business may designate an individual with an influential interest in the business to file its application for a sexually oriented business license in person on behalf of the business. The application shall be signed as required by Subsection D herein and shall be notarized. An application shall be considered complete when it contains, for each person required to sign the application, the information and/or items required in this Subsection C, accompanied by the appropriate licensing fee:
(a)
The applicant's full legal name and any other names used
by the applicant in the preceding five years.
(b)
Current business address or another mailing address for the
applicant.
(c)
Written proof of age, in the form of a driver's license,
a picture identification document containing the applicant's
date of birth issued by a governmental agency, or a copy of a birth
certificate accompanied by a picture identification document issued
by a governmental agency.
(d)
If the application is for a sexually oriented business license,
the business name, location, legal description, mailing address and
phone number of the sexually oriented business.
(e)
If the application is for a sexually oriented business license,
the name and business address of the statutory agent or other agent
authorized to receive service of process.
(f)
A statement of whether an applicant has been convicted of or
has pled guilty or nolo contendere to a specified criminal activity
as defined in this chapter, and if so, each specified criminal activity
involved, including the date, place, and jurisdiction of each as well
as the dates of conviction and release from confinement, where applicable.
(g)
A statement of whether any sexually oriented business in which
an applicant has had an influential interest has, in the previous
five years (and at a time during which the applicant had the influential
interest):
(h)
An application for a sexually oriented business license shall be accompanied by a legal description of the property where the business is located and a sketch or diagram showing the configuration of the premises, including a statement of total floor area occupied by the business and a statement of floor area visible or accessible to patrons for any reason, excluding restrooms. The sketch or diagram need not be professionally prepared but shall be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. Applicants who are required to comply with the stage, booth, and/or room configuration requirements of this chapter shall submit a diagram indicating that the setup and configuration of the premises meets the requirements of the applicable regulations. The Township Clerk may waive the requirements of this Subsection C(1)(h) for a renewal application if the applicant adopts a legal description and a sketch or diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.
D.
Signature. A person who seeks a sexually oriented business employee
license under this section shall sign the application for a license.
If a person who seeks a sexually oriented business license under this
section is an individual, he shall sign the application for a license
as applicant. If a person who seeks a sexually oriented business license
is other than an individual, each person with an influential interest
in the sexually oriented business or in a legal entity that controls
the sexually oriented business shall sign the application for a license
as applicant. Each applicant must be qualified under this chapter
and each applicant shall be considered a licensee if a license is
granted.
E.
The information provided by an applicant in connection with an application
for a license under this chapter shall be maintained by the office
of the Township Clerk on a confidential basis, and such information
may be disclosed only as may be required, and only to the extent required,
by governing law or court order. Any information protected by the
right to privacy as recognized by state or federal law shall be redacted
prior to such disclosure.
A.
Sexually oriented business license. Upon the filing of a completed
application for a sexually oriented business license, the Township
Clerk shall immediately issue a temporary license to the applicant
if the completed application is from a preexisting sexually oriented
business that is lawfully operating in the Township and the completed
application, on its face, indicates that the applicant is entitled
to an annual sexually oriented business license. The temporary license
shall expire upon the final decision of the Township to deny or grant
an annual license. Within 30 days of the filing of a completed sexually
oriented business license application, the Township Clerk shall either
issue a license to the applicant or issue a written notice of intent
to deny a license to the applicant. The Township Clerk shall issue
a license unless:
(1)
An applicant is less than 18 years of age.
(2)
An applicant has failed to provide information required by this chapter
for issuance of a license or has falsely answered a question or request
for information on the application form.
(3)
The license application fee required by this chapter has not been
paid.
(4)
The sexually oriented business, as defined herein, is not in compliance
with the interior configuration requirements of this chapter or is
not in compliance with locational requirements of this chapter.
(6)
An applicant has been convicted of or pled guilty or nolo contendere
to a specified criminal activity, as defined in this chapter.
B.
Employee license. Upon the filing of a completed application for
a sexually oriented business employee license, the Township Clerk
shall immediately issue a temporary license to the applicant if the
applicant seeks licensure to work in a licensed sexually oriented
business and the completed application, on its face, indicates that
the applicant is entitled to an annual sexually oriented business
employee license. The temporary license shall expire upon the final
decision of the Township to deny or grant an annual license. Within
30 days of the filing of a completed sexually oriented business employee
license application, the Township Clerk shall either issue a license
to the applicant or issue a written notice of intent to deny a license
to the applicant. The Township Clerk shall issue a license unless:
(1)
The applicant is less than 18 years of age.
(2)
The applicant has failed to provide information as required by this
chapter for issuance of a license or has falsely answered a question
or request for information on the application form.
(3)
The license application fee required by this chapter has not been
paid.
(5)
The applicant has been convicted of or pled guilty or nolo contendere
to a specified criminal activity, as defined in this chapter.
C.
The license, if granted, shall state on its face the name of the
person or persons to whom it is granted, the number of the license
issued to the licensee(s), the expiration date, and, if the license
is for a sexually oriented business, the address of the sexually oriented
business. The sexually oriented business license shall be posted in
a conspicuous place at or near the entrance to the sexually oriented
business so that it may be read at any time that the business is occupied
by patrons or is open to the public. A sexually oriented business
employee shall keep the employee's license on his or her person
or on the premises where the licensee is then working or performing.
The initial license and annual renewal fees for sexually oriented
business licenses and sexually oriented business employee licenses
shall be set forth in the Township fee schedule.
Sexually oriented businesses and sexually oriented business
employees shall permit the Township Clerk and his or her agents to
inspect, from time to time on an occasional basis, the portions of
the sexually oriented business premises where patrons are permitted,
for the purpose of ensuring compliance with the specific regulations
of this chapter, during those times when the sexually oriented business
is occupied by patrons or is open to the public. This section shall
be narrowly construed by the Township to authorize reasonable inspections
of the licensed premises pursuant to this chapter, but not to authorize
a harassing or excessive pattern of inspections.
A.
Each license shall remain valid for a period of one calendar year
from the date of issuance unless otherwise suspended or revoked. Such
license may be renewed only by making application and payment of a
fee as provided in this chapter.
B.
Application for renewal of an annual license should be made at least
90 days before the expiration date of the current annual license,
and when made less than 90 days before the expiration date, the expiration
of the current license will not be affected.
A.
The Township Clerk shall issue a written notice of intent to suspend
a sexually oriented business license for a period not to exceed 30
days if the sexually oriented business licensee has knowingly or recklessly
violated this chapter or has knowingly or recklessly allowed an employee
or any other person to violate this chapter.
B.
The Township Clerk shall issue a written notice of intent to suspend
a sexually oriented business employee license for a period not to
exceed 30 days if the employee licensee has knowingly or recklessly
violated this chapter.
A.
The Township Clerk shall issue a written notice of intent to revoke
a sexually oriented business license or a sexually oriented business
employee license, as applicable, if the licensee knowingly or recklessly
violates this chapter or has knowingly or recklessly allowed an employee
or any other person to violate this chapter and a suspension of the
licensee's license has become effective within the previous twelve-month
period.
B.
The Township Clerk shall issue a written notice of intent to revoke
a sexually oriented business license or a sexually oriented business
employee license, as applicable, if:
(1)
The licensee has knowingly given false information in the application
for the sexually oriented business license or the sexually oriented
business employee license;
(2)
The licensee has knowingly or recklessly engaged in or allowed possession,
use, or sale of controlled substances on the premises of the sexually
oriented business;
(3)
The licensee has knowingly or recklessly engaged in or allowed prostitution
on the premises of the sexually oriented business;
(4)
The licensee knowingly or recklessly operated the sexually oriented
business during a period of time when the license was finally suspended
or revoked;
(5)
The licensee has knowingly or recklessly engaged in or allowed any
specified sexual activity or specified criminal activity to occur
in or on the premises of the sexually oriented business;
(6)
The licensee has knowingly or recklessly allowed a person under the
age of 21 years to consume alcohol on the premises of the sexually
oriented business;
(7)
The licensee has knowingly or recklessly allowed a person under the
age of 18 years to appear in a seminude condition or in a state of
nudity on the premises of the sexually oriented business; or
(8)
The licensee has knowingly or recklessly allowed three or more violations
of this chapter within a twelve-month period.
C.
The fact that any relevant conviction is being appealed shall have
no effect on the revocation of the license, provided that, if any
conviction which serves as a basis of a license revocation is overturned
or reversed on appeal, that conviction shall be treated as null and
of no effect for revocation purposes.
D.
When, after the notice and hearing procedure described in this chapter,
the Township revokes a license, the revocation shall continue for
one year, and the licensee shall not be issued a sexually oriented
business license or sexually oriented business employee license for
one year from the date revocation becomes effective.
A.
When the Township Clerk issues a written notice of intent to deny,
suspend, or revoke a license, the Township Clerk shall immediately
send such notice, which shall include the specific grounds under this chapter
for such action, to the applicant or licensee (respondent) by personal
delivery or certified mail. The notice shall be directed to the most
current business address or other mailing address on file with the
Township Clerk for the respondent. The notice shall also set forth
the following: The respondent shall have 10 days after the delivery
of the written notice to submit, at the office of the Township Clerk,
a written request for a hearing. If the respondent does not request
a hearing within said 10 days, the Township Clerk's written notice
shall become a final denial, suspension, or revocation, as the case
may be, on the 30th day after it is issued.
B.
If the respondent does make a written request for a hearing within
said 10 days, then the Township Clerk shall, within 10 days after
the submission of the request, send a notice to the respondent indicating
the date, time, and place of the hearing. The hearing shall be conducted
not less than 10 days nor more than 20 days after the date that the
hearing notice is issued. The Township shall provide for the hearing
to be transcribed.
C.
At the hearing, the respondent shall have the opportunity to present
all relevant arguments and to be represented by counsel, present evidence
and witnesses on his or her behalf, and cross-examine any of the Township
Clerk's witnesses. The Township Clerk shall also be represented
by counsel, and shall bear the burden of proving the grounds for denying,
suspending, or revoking the license. The hearing shall take no longer
than two days, unless extended at the request of the respondent to
meet the requirements of due process and proper administration of
justice. The hearing officer shall issue a final written decision,
including specific reasons for the decision pursuant to this chapter,
to the respondent within five days after the hearing.
D.
If the decision is to deny, suspend, or revoke the license, the decision
shall advise the respondent of the right to appeal such decision to
a court of competent jurisdiction, and the decision shall not become
effective until the 30th day after it is rendered. If the hearing
officer's decision finds that no grounds exist for denial, suspension,
or revocation of the license, the hearing officer shall, contemporaneously
with the issuance of the decision, order the Township Clerk to immediately
withdraw the intent to deny, suspend, or revoke the license and to
notify the respondent in writing by certified mail of such action.
If the respondent is not yet licensed, the Township Clerk shall contemporaneously
therewith issue the license to the applicant.
E.
If any court action challenging a licensing decision is initiated,
the Township shall consent to expedited briefing and/or disposition
of the action, shall comply with any expedited schedule set by the
court, and shall facilitate prompt judicial review of the proceedings.
The following shall apply to any sexually oriented business that is
lawfully operating as a sexually oriented business, or any sexually
oriented business employee that is lawfully employed as a sexually
oriented business employee, on the date on which the completed business
or employee application, as applicable, is filed with the Township
Clerk: Upon the filing of any court action to appeal, challenge, restrain,
or otherwise enjoin the Township's enforcement of any denial,
suspension, or revocation of a temporary license or annual license,
the Township Clerk shall immediately issue the respondent a provisional
license. The provisional license shall allow the respondent to continue
operation of the sexually oriented business or to continue employment
as a sexually oriented business employee and will expire upon the
court's entry of a judgment on the respondent's appeal or
other action to restrain or otherwise enjoin the Township's enforcement.
A licensee shall not transfer his or her license to another,
nor shall a licensee operate a sexually oriented business under the
authority of a license at any place other than the address designated
in the sexually oriented business license application.
No sexually oriented business shall be or remain open for business
between 12:00 midnight and 6:00 a.m. on any day.
A.
A person who operates or causes to be operated a sexually oriented
business which exhibits in a booth or viewing room on the premises,
through any mechanical or electronic image-producing device, a film,
video cassette, digital video disc, or other video reproduction characterized
by an emphasis on the display of specified sexual activities or specified
anatomical areas shall comply with the following requirements.
(1)
Each application for a sexually oriented business license shall contain
a diagram of the premises showing the location of all operator's
stations, booths or viewing rooms, overhead lighting fixtures, and
restrooms, and shall designate all portions of the premises in which
patrons will not be permitted. Restrooms shall not contain equipment
for displaying films, video cassettes, digital video discs, or other
video reproductions. The diagram shall also designate the place at
which the license will be conspicuously posted, if granted. A professionally
prepared diagram in the nature of an engineer's or architect's
blueprint shall not be required; however, each diagram shall be oriented
to the north or to some designated street or object and shall be drawn
to a designated scale or with marked dimensions sufficient to show
the various internal dimensions of all areas of the interior of the
premises to an accuracy of plus or minus six inches. The Township
Clerk may waive the foregoing diagram for renewal applications if
the applicant adopts a diagram that was previously submitted and certifies
that the configuration of the premises has not been altered since
it was prepared.
(2)
It shall be the duty of the operator, and of any employees present
on the premises, to ensure that no patron is permitted access to any
area of the premises which has been designated as an area in which
patrons will not be permitted.
(3)
The interior premises shall be equipped with overhead lighting fixtures
of sufficient intensity to illuminate every place to which patrons
are permitted access at an illumination of not less than five footcandles
as measured at the floor level. It shall be the duty of the operator,
and of any employees present on the premises, to ensure that the illumination
described above is maintained at all times that the premises is occupied
by patrons or open for business.
(4)
It shall be the duty of the operator, and of any employees present
on the premises, to ensure that no specified sexual activity occurs
in or on the licensed premises.
(5)
It shall be the duty of the operator to post conspicuous signs in
well-lighted entry areas of the business stating all of the following:
(a)
That the occupancy of viewing rooms less than 150 square feet
is limited to one person.
(b)
That specified sexual activity on the premises is prohibited.
(c)
That the making of openings between viewing rooms is prohibited.
(d)
That violators will be required to leave the premises.
(e)
That violations of these regulations are unlawful.
(7)
The interior of the premises shall be configured in such a manner
that there is an unobstructed view from an operator's station
of every area of the premises, including the interior of each viewing
room but excluding restrooms, to which any patron is permitted access
for any purpose. An operator's station shall not exceed 32 square
feet of floor area. If the premises has two or more operator's
stations designated, then the interior of the premises shall be configured
in such a manner that there is an unobstructed view of each area of
the premises to which any patron is permitted access for any purpose,
excluding restrooms, from at least one of the operator's stations.
The view required in this subsection must be by direct line of sight
from the operator's station. It is the duty of the operator to
ensure that at least one employee is on duty and situated in each
operator's station at all times that any patron is on the premises.
It shall be the duty of the operator, and it shall also be the duty
of any employees present on the premises, to ensure that the view
area specified in this subsection remains unobstructed by any doors,
curtains, walls, merchandise, display racks or other materials or
enclosures at all times that any patron is present on the premises.
(8)
It shall be the duty of the operator to ensure that no porous materials
are used for any wall, floor, or seat in any booth or viewing room.
C.
No patron shall knowingly or recklessly enter or remain in a viewing
room less than 150 square feet in area that is occupied by any other
patron.
D.
No patron shall knowingly or recklessly be or remain within one foot
of any other patron while in a viewing room that is 150 square feet
or larger in area.
E.
No person shall knowingly or recklessly make any hole or opening
between viewing rooms.
A.
It shall be the duty of the operator of a sexually oriented business
to: (i) ensure that at least two conspicuous signs stating that no
loitering is permitted on the premises are posted on the premises;
(ii) designate one or more employees to monitor the activities of
persons on the premises by visually inspecting the premises at least
once every 90 minutes or inspecting the premises by use of video cameras
and monitors; and (iii) provide lighting to the exterior premises
to provide for visual inspection or video monitoring to prohibit loitering.
Said lighting shall be of sufficient intensity to illuminate every
place to which customers are permitted access at an illumination of
not less than one footcandle as measured at the floor level. If used,
video cameras and monitors shall operate continuously at all times
that the premises is open for business. The monitors shall be installed
within an operator's station.
B.
It shall be the duty of the operator of a sexually oriented business
to ensure that the interior premises shall be equipped with overhead
lighting of sufficient intensity to illuminate every place to which
customers are permitted access at an illumination of not less than
five footcandles as measured at the floor level, and the illumination
must be maintained at all times that any customer is present in or
on the premises.
C.
No sexually oriented business shall erect a fence, wall, or similar
barrier that prevents any portion of the parking lot(s) for the establishment
from being visible from a public right-of-way.
D.
It shall be unlawful for a person having a duty under this section
to knowingly or recklessly fail to fulfill that duty.
A.
A person, business, or entity violating or refusing to comply with
any provision of this chapter shall be responsible for a civil infraction
and shall be punished by imposition of a fine not to exceed $500.
Each day that a violation is permitted to exist or occur, and each
separate occurrence, shall constitute a separate offense. Further,
any premises, building, or other structure in which a sexually oriented
business, as defined in this chapter, is repeatedly operated or maintained
in violation of the provisions of this chapter shall constitute a
public nuisance and shall be subject to civil abatement proceedings
initiated by Pittsfield Charter Township, in a court of competent
jurisdiction. Any premises, building, or other structure declared
by the court to be a public nuisance may be closed for up to one year
and the property owner assessed the costs of abatement. Each day that
a violation is permitted to exist or occur shall constitute a separate
operation or maintenance of the violation.
B.
Notwithstanding Subsection A hereof, the Township's legal counsel is hereby authorized to employ any remedy available at law or in equity, including a suit for injunctive relief, to prevent or remedy a violation of any provision of this chapter. Such proceedings shall be brought in the name of the Township; provided, however, that nothing in this section and no action taken hereunder shall be held to exclude such criminal or administrative proceedings as may be authorized by other provisions of this chapter or any of the laws in force in the Township or to exempt anyone violating this chapter or any part of the said laws from any penalty which may be incurred.
A.
Licensing requirements. All preexisting sexually oriented businesses
lawfully operating in the Township in compliance with all state and
local laws prior to the effective date of this chapter, and all sexually
oriented business employees working in the Township prior to the effective
date of this chapter, are hereby granted a de facto temporary license
to continue operation or employment for a period of 90 days following
the effective date of this chapter. By the end of said 90 days, all
sexually oriented businesses and sexually oriented business employees
must apply for a license under this chapter.
B.
Interior configuration requirements. Any preexisting sexually oriented business that is required to, but does not, have interior configurations or stages that meet at least the minimum requirements of §§ 23-14 and 23-18B shall have 90 days from the effective date of this chapter to conform its premises to said requirements. During said 90 days, any employee who appears within view of any patron in a seminude condition shall nevertheless remain, while seminude, at least six feet from all patrons.[1]
A.
No patron, employee, or any other person shall knowingly or intentionally,
in a sexually oriented business, appear in a state of nudity or engage
in a specified sexual activity.
B.
No person shall knowingly or intentionally, in a sexually oriented
business, appear in a seminude condition unless the person is an employee
who, while seminude, remains at least six feet from all patrons and
on a stage at least 18 inches from the floor in a room of at least
600 square feet.
C.
No employee who appears seminude in a sexually oriented business
shall knowingly or intentionally touch a customer or the clothing
of a customer on the premises of a sexually oriented business. No
customer shall knowingly or intentionally touch such an employee or
the clothing of such an employee on the premises of a sexually oriented
business.
D.
No person shall possess, use, or consume alcoholic beverages on the
premises of a sexually oriented business.
E.
No person shall knowingly or recklessly allow a person under the
age of 18 years to be or remain on the premises of a sexually oriented
business.
F.
No operator of a sexually oriented business shall knowingly or recklessly
allow a room in the sexually oriented business to be simultaneously
occupied by any patron and any employee who is seminude or who appears
seminude on the premises of the sexually oriented business, unless
an operator of the sexually oriented business is present in the same
room.
G.
No operator or licensee of a sexually oriented business shall violate
the regulations in this section or knowingly or recklessly allow an
employee or any other person to violate the regulations in this section.
H.
A sign in a form to be prescribed by the Township Clerk, and summarizing the provisions of Subsections A, B, C, D and E, shall be posted near the entrance of the sexually oriented business in such a manner as to be clearly visible to patrons upon entry. No person shall cover, obstruct, or obscure said sign.
This chapter does not impose strict liability. Unless a culpable
mental state is otherwise specified herein, a showing of a reckless
mental state is necessary to establish a violation of a provision
of this chapter. Notwithstanding anything to the contrary, for the
purposes of this chapter, an act by an employee that constitutes grounds
for suspension or revocation of that employee's license shall
be imputed to the sexually oriented business licensee for purposes
of finding a violation of this chapter, or for purposes of license
denial, suspension, or revocation, only if an officer, director, or
general partner, or a person who managed, supervised, or controlled
the operation of the business premises, knowingly or recklessly allowed
such act to occur on the premises. It shall be a defense to liability
that the person to whom liability is imputed was powerless to prevent
the act.
A.
It shall be unlawful to establish, operate, or cause to be operated
a sexually oriented business in Pittsfield Charter Township, unless
said sexually oriented business is at least 250 feet from all parcels
occupied by a place of worship, public or private elementary or secondary
school, licensed child-care facility, a public park, or any residence.
B.
For the purpose of this section, measurements shall be made in a straight line in all directions without regard to intervening structures or objects, from the closest part of the structure used in conjunction with the sexually oriented business to the closest point on a property boundary or right-of-way associated with any of the land use(s) identified in Subsection A above. If the sexually oriented business is located in a multitenant structure, the distance shall be measured from the closest part of the tenant space occupied by the sexually oriented business to the closest point on a property boundary or right-of-way associated with any of the land use(s) identified in Subsection A above.
