[Adopted 1-22-2010 by Ord. No. 186]
A.
Purpose. It is the purpose of this ordinance to regulate sexually
oriented businesses in order to promote the health, safety, and general
welfare of the citizens of the City, and to establish reasonable and
uniform regulations to prevent the deleterious secondary effects of
sexually oriented businesses within the City. The provisions of this
ordinance 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 ordinance 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 ordinance to condone or legitimize
the distribution of obscene material.
B.
Findings and rationale. Based on evidence of the adverse secondary
effects of adult uses presented in hearings and in reports made available
to the City, 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); and Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291
(6th Cir. 2008); Deja Vu of Nashville, Inc. v. Metropolitan Gov't
of Nashville and Davidson County, 466 F.3d 391 (6th Cir. 2006); Deja
Vu of Cincinnati, L.L.C. v. Union Township Bd. Of Trustees, 411 F.3d
777 (6th Cir. 2005) (en banc); Fantasy Ranch, Inc. v. City of Arlington,
459 F.3d 546 (5th Cir. 2006); City of Chicago V. Pooh Bah Enterprises,
Inc., 865 N.E.2d 133 (III. 2006); Andy's Restaurant & Lounge,
Inc. v. City of Gary, 466 F.3d 550 (7th Cir. 2006); 181 South, Inc.
V. Fischer, 454 F.3d 228 (3rd Cir. 2006); Bronco's Entertainment,
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);
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); Little Mack Entm't II, Inc. v. Twp. of Marengo, 2008 WL
2783252 (W.D. Mich. July 17, 2008); Kentucky Restaurant Concepts,
Inc. v. City of Louisville, 209 F. Supp. 2d 672 (W.D. Ky. 2002); Restaurant
Ventures v. Lexington-Fayette Urban County Gov't, 60 S.W.3d 572 (Ky.
Ct. App. 2001); Deja Vu of Nashville, Inc., et at v. Metropolitan
Government of Nashville and Davidson County, 274 F.3d 377 (6th Cir.
2001); Ctr. for Fair Public Policy v. Maricopa County, 336 F.3d 1153
(9th Cir. 2003); Bigg Wolf Discount Video Sales, Inc. v. Montgomery
County, 256 F. Supp. 2d 385 (D. Md. 2003); DLS, Inc. v. City of Chattanooga,
107 F.3d 403 (6th Cir. 1997); Brandywine, Inc. v. City of Richmond,
359 F.3d 830 (6th Cir. 2004); Currence v. City of Cincinnati, 28 Fed.
Appx. 438 (6th Cir. Jan. 24, 2002); Broadway Books v. Roberts, 642
F. Supp. 486 (E.D. Tenn. 1986); Bright Lights, Inc. v. City of Newport,
830 F. Supp. 378 (E.D. Ky. 1993); Bamon Corp. v. City of Dayton, 923
F.2d 470 (6th Cir. 1991); Triplett Grille, Inc. v. City of Akron,
40 F.3d 129 (6th Cir. 1994); O'Connor v. City and County of Denver,
894 F.2d 1210 (10th Cir. 1990); Threesome Entertainment v. Strittmather,
4 F. Supp. 2d 710 (N.D. Ohio 1998); Lady J. Lingerie, Inc. v. City
of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); In re Tennessee Public
Indecency Statute, 172 F.3d 873 (6th Cir. Jan. 13 1999)(table); 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); Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d
860 (11th Cir. 2007); Williams v. Morgan, 478 F.3d 1316 (11th Cir.
2007); H&A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th
Cir. 2007); 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. Nichols,
137 F.3d 435 (6th Cir. 1998); Spokane Arcade, Inc. v. City of Spokane,
75 F.3d 663 (9th Cir. 1996); Gammoh v. City of La Habra, 395 F.3d
1114 (9th Cir. 2005); 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-1 66-A, Findings of Fact and
Conclusions of Law (N.D. Tex. May 26, 2005); and based upon reports
concerning secondary effects occurring in and around sexually oriented
businesses, including, but not limited to, Austin, Texas -1986; Indianapolis,
Indiana - 1984; Garden Grove, California - 1991; Houston, Texas -
1983, 1997; Phoenix, Arizona - 1979, 1995-98; Chattanooga, Tennessee
- 1999-2003; Los Angeles, California -1977; Whittier, California -
1978; Spokane, Washington - 2001; St. Cloud, Minnesota - 1994; Littleton,
Colorado - 2004; Oklahoma City, Oklahoma - 1986; Dallas, Texas - 1997;
Ft. Worth, Texas - 2004; Kennedale, Texas - 2005; Greensboro, North
Carolina - 2003; Amarillo, Texas - 1977; McCleary Report - 2006; New
York, New York Times Square - 1994; Jackson County, Missouri - 2008;
Warren, Michigan - 2005; and the Report of the Attorney General's
Working Group On The Regulation Of Sexually Oriented Businesses, (June
6, 1989, State of Minnesota), the City finds as follows:
1.
Sexually oriented businesses, as a category of commercial uses, are
associated with a wide variety of adverse secondary effects including,
but not limited to, personal and property crimes, prostitution, 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.
2.
Sexually oriented businesses should be separated from sensitive land
uses to minimize the impact of their secondary effects upon such uses,
and should be separated from other sexually oriented businesses, to
minimize the secondary effects associated with such uses and to prevent
an unnecessary concentration of sexually oriented businesses in one
area.
3.
Each of the foregoing negative secondary effects constitutes a harm
which the City has a substantial government interest in preventing
and/or abating. This substantial government interest in preventing
secondary effects, which is the City's rationale for this ordinance,
exists independent of any comparative analysis between sexually oriented
businesses and non-sexually oriented businesses. Additionally, the
City's interest in regulating sexually oriented businesses extends
to preventing future secondary effects of either current or future
sexually oriented businesses that may locate in the City. The City
finds that the cases and documentation set forth above and relied
on by the City are reasonably believed to be relevant to said secondary
effects.
C.
The City 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.
As used in this article, the following terms shall have the
meanings indicated:
Any place to which the public is permitted or invited wherein
coin-operated, slug-operated, or for any form of consideration, or
electronically, electrically, or mechanically controlled still or
motion picture machines, projectors, video or laser disc players,
or other image-producing devises are maintained to show images to
five or fewer persons per machine at any one time, and where the images
so displayed are distinguished or characterized by the depicting or
describing of "specified sexual activities" or "specified anatomical
areas".
A commercial establishment having 30% or more of all usable
interior, retail, wholesale, or warehouse space devoted to the distribution,
display, or storage of books, magazines, and other periodicals and/or
photographs, drawings, slides, films, video tapes, recording tapes,
and/or novelty items which are distinguished or characterized by their
emphasis on matter depicting, describing, or relating to "specified
Sexual Activities" or "specified Anatomical Areas" (as defined herein).
An establishment which regularly features persons who appear
seminude.
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, films,
motion pictures, video cassettes, slides or other photographic reproductions
which are characterized by the depiction or description of "specified"
sexual activities" or "specified" anatomical areas"; and has a sign
visible from the public right-of-way which advertises the availability
of this adult type of photographic reproductions; or
Offers a sleeping room for rent for a period of time that is
less than 10 hours; or
Allows a tenant or occupant of a sleeping room to subrent the
room for a period of time that is less than 10 hours.
An enclosed building used for presenting material distinguished
or characterized by an emphasis on matter depicting, describing or
relating to "specified" sexual activities" or "specified" anatomical
areas" (as defined herein) for observation by patrons therein. Such
establishment is customarily not open to the public generally, but
only to one or more classes of the public, excluding any minor by
reason of age.
A person who performs any service on the premises of a sexually
oriented business on a full-time, part-time or contract basis, whether
or not the person is denominated an employee, independent contractor,
agent or otherwise and whether or not said person is paid a salary,
wage or other compensation by the operator of said business. Employee
does not include a person exclusively on the premises for repair or
maintenance of the premises or equipment on the premises, or for the
delivery of goods to the premises.
A person who, for consideration, agrees or offers to act
as a companion, guide, or date for another person, or who agrees or
offers to privately model lingerie or to privately perform a striptease
for another person.
A person or business association who furnishes, offers to
furnish, or advertises to furnish escorts as one of its primary business
purposes for a fee, tip, or other consideration.
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;
The additions of any sexually oriented business to any other
existing sexually oriented business; or
The relocation of any sexually oriented business.
A person in whose name a license to operate a sexually oriented
business has been issued, as well as the individual listed as an applicant
on the application for a license; and in the case of an employee,
a person in whose name a license has been issued authorizing employment
in a sexually oriented business.
Any place where a person who appears seminude, in a state
of nudity, or who displays "specified anatomical areas" and is provided
to be observed, sketched, drawn, painted, sculptured, photographed,
or similarly depicted by other persons who pay money or any form of
consideration. Nude model studio shall not include a proprietary school
licensed by the State of Michigan or a college, junior college or
university support entirely or in part by public taxation; a private
college or university which maintains and operates educational programs
in which credits are transferable to a college, junior college, or
university support entirely or partly by taxation; or in a structure:
That has no sign visible from the exterior of the structure
and no other advertising that indicates a nude or seminude person
is available for viewing; and
Where in order to participate in a class a student must enroll
at least three days in advance of the class; and
Where no more than one nude or seminude model is on the premises
at any one time.
The showing of the human male or female genitals, public
area, vulva, anus, anal cleft or cleavage with less than a fully opaque
covering, the showing of the female breast with less than a fully
opaque covering of any part of the nipple, or the showing of the covered
male genitals in a discernibly turgid state. Nudity or a state of
nudity does not include the following:
A woman's breast-feeding of a baby whether or not the nipple
or areola is exposed during or incidental to the feeding.
Material as defined in Section 2 of Act No. 343 of the Public
Acts of 1984, being MCLA § 752.362.
Sexually explicit visual material as defined in Section 3 of
Act No. 33 of the Public Acts of 1978, being MCLA § 722.673.
An individual, proprietorship, partnership, corporation,
association, or other legal entity.
The showing of the female breast below a horizontal line
across the top of the areola at its highest point or the showing of
the male or female buttocks. This definition shall include the entire
lower portion of the human female breast, but shall not include any
portion of the cleavage of the human female breast, exhibited by a
bikini, dress, blouse, skirt, leotard, bathing suit, or other wearing
apparel provided the areola is not exposed in whole or in part. Semi-nudity
or a state of semi-nude condition does not include the following:
A woman's breast-feeding of a baby whether or not the nipple
or areola is exposed during or incidental to the feeding.
Material as defined in Section 2 of Act No. 343 of the Public
Acts of 1984, being MCLA § 752.362.
Sexually explicit visual material as defined in Section 3 of
Act No. 33 of the Public Acts of 1978, being MCLA § 722.673.
A business or commercial enterprise that, as one of its principal
business purposes, offers for any form of consideration:
An adult arcade, adult bookstore, adult novelty store, adult
video store, adult cabaret, adult motel, adult motion-picture theater
or adult live stage performing theater, escort agency, nude model
studio, or sexual encounter center.
Portions of the human body defined as follows:
Any of the following offenses:
Prostitution or promotion of prostitution; dissemination of
obscenity; sale, distribution or display of harmful material to a
minor; sexual performance by a child; possession or distribution of
child pornography; public lewdness; indecent exposure; indecency with
a child; engaging in organized criminal activity; sexual assault,
molestation of a child; gambling; or distribution of a controlled
substance; or any similar offenses to those described above under
the criminal or penal code of other states or countries;
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
offense;
Less than five years have elapsed since the date of conviction
or the date of release from confinement for the conviction, whichever
is the later date, if the conviction is of a felony offense; or
Less than five years have elapsed since the date of the last
conviction or the date of release from confinement for the conviction,
whichever is the later date, if the convictions are of two or more
misdemeanors or combination of misdemeanor offenses occurring within
any twenty-four-month period.
The fact that a conviction is being appealed shall have no effect
on the disqualification of the applicant.
The explicit display of one or more of the following:
Of a sexually oriented business means the increase in floor
areas occupied by the business by more than 25%, as the floor areas
exist on the date this ordinance takes effect.
Of a sexually oriented business means and includes 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
transfer by bequest or other operation of law upon the death of the
person possessing the ownership or control.
Sexually oriented businesses are classified as follows:
A.
It is unlawful:
1.
For any person to operate a sexually oriented business without a
valid sexually oriented business license issued by the City pursuant
to this ordinance.
2.
For any person who operates a sexually oriented business to employ
a person to work for the sexually oriented business who is not licensed
as a sexually oriented business employee by the City pursuant to this
ordinance.
3.
For any person to obtain employment with a sexually oriented business
without having secured a sexually oriented business employee license
pursuant to this ordinance.
B.
An application for a license must be made on a form provided by the
City.
C.
All applicants must be qualified according to the provisions of this ordinance. An application shall be considered complete when it contains, for each person required to sign the application, the information and/or items required in Subsection E of this section, accompanied by the appropriate licensing fee.
D.
If a person who wishes to operate a sexually oriented business is
an individual, the person must sign the application for a license
as applicant. If a person who wishes to operate a sexually oriented
business is other than an individual, each individual who has a 30%
or greater interest in the business must sign the application for
a license as applicant. Each applicant must be qualified under the
following section and each applicant shall be considered a license
if a license is granted.
E.
The completed application for a sexually oriented business license
shall contain the following information and shall be accompanied by
the following documents:
1.
If the applicant is:
a.
An individual, the individual shall state his/her legal name and
any aliases and submit proof that he/she is 18 years of age;
b.
A partnership, the partnership shall state its complete name and
the names of all general partners and whether the partnership is general
or limited;
c.
A corporation, the corporation shall state its complete name, the
date of its incorporation, the names and capacity of all officers,
directors and stockholders with at least 30% ownership interest in
the corporation, and the name of the registered corporate agent and
the address of the registered office for service of process.
2.
If the applicant intends to operate the sexually oriented business
under a name other than that of the applicant; he or she must state
the sexually oriented business's fictitious name.
3.
Whether the applicant has been convicted of a specific criminal activity
as defined in this ordinance, and, if so, the specified criminal activity
involved, the date, place and jurisdiction of each.
4.
Whether the applicant has had a previous license under this ordinance
or other similar sexually oriented business ordinances from another
municipality or county denied, suspended or revoked, including the
name and location of the sexually oriented business for which the
permit was denied, suspended or revoked, as well as the date of the
denial, suspension or revocation, and whether the applicant has been
a partner in a partnership or an officer, director or principal stockholder
of a corporation that is licensed under this ordinance whose license
has previously been denied, suspended or revoked, including the name
and location of the sexually oriented business for which the permit
was denied, suspended or revoked as well as the date of denial, suspension
or revocation.
5.
Whether the applicant holds any other licenses under this ordinance
or other similar sexually oriented business ordinance from another
municipality or county and, if so, the names and locations of such
other licensed businesses.
6.
The category(ies) of sexually oriented business that the applicant
intends to engage in at the licensed premises.
7.
The location of the proposed sexually oriented business, including
a legal description of the property, street address, and telephone
number(s), if any.
8.
The applicant's business address or other mailing address.
9.
A recent photograph of the applicant(s).
10.
The applicant's driver's license number and/or his/her state or federally
issued tax identification number.
11.
A sketch or diagram showing the configuration of the premises, including
a statement of total floor space occupied by the business. The sketch
or diagram need not be professionally prepared, but it must be drawn
to a designated scale or drawn with marked dimensions of the interior
of the premises to an accuracy of plus or minus six inches.
12.
A current certificate and straight-line drawing prepared within 30 days prior to application by a registered land surveyor depicting the property lines and the structures of any land use identified in Section 9-73 of this article that is within 1,000 feet of the property to be certified. For purposes of this section, a use shall be considered existing or established if it is legally in existence at the time an application is submitted.
13.
If an applicant wishes to operate a sexually oriented business, other than an adult motel, which shall exhibit on the premises, in a viewing room or booth of less than 150 square feet of floor space, films, videos cassettes, other video reproductions, or live entertainment which depict specified sexual activities or specified anatomical areas, then the applicant shall also comply with the application requirements set forth in Section 9-75.
F.
Before any applicant may be issued a sexually oriented business employee
license, the applicant shall submit on a form to be provided by the
City the following information:
1.
The applicant's name or any other name (including "stage" names)
or aliases used by the individual;
2.
Written proof of age, in the form of a driver's license or a copy
of a birth certificate accompanied by a picture identification document
issued by a governmental agency;
3.
Height, weight, hair and eye color;
4.
Present business telephone number, if any;
5.
Present business address or other mailing address; and
6.
Date, issuing state and number of driver's permit or other identification
card information.
7.
A color photograph of the applicant clearly showing the applicant's
face, and the applicant's fingerprints on a form provided by the police
department. The police department shall provide fingerprinting service
upon request for a nominal fee during business hours.
8.
A statement detailing the 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, in this or any other municipality, county or state has
ever had license, permit, or authorization to do business denied,
revoked, or suspended, or had any professional or vocational license
or permit denied, revoked, or suspended. In the event of any such
denial, revocation, or suspension, state the name, the name of the
issuing or denying jurisdiction, and describe in full the reason for
the denial, revocation or suspension. A copy of any order of denial,
revocation, or suspension shall be attached to the application.
9.
A statement whether the applicant has been convicted of a specified
criminal activity as defined in this ordinance and, if so, the specified
criminal activity involved, the date, place and jurisdiction of each.
A.
Upon the filing of a completed application for a sexually oriented
business employee license, the City shall immediately issue a temporary
license to the applicant if the applicant seeks 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 application shall then be immediately
referred to the appropriate City departments for an investigation
to be made on such information as is contained in the application.
The application process shall be completed within 30 days from the
date the completed application is filed, and the City shall issue
a license, unless:
1.
The applicant has failed to provide information required under the
terms of this ordinance for issuance of the license or has falsely
answered a question or request for information on the application
form;
2.
The applicant is under the age of 18 years;
3.
The applicant has been convicted of a "specified criminal activity"
as defined in this ordinance;
4.
The sexually oriented business employee license is to be used for
employment in a business prohibited by local or state law, statute,
rule or regulation, or prohibited by a particular provision of this
ordinance;
5.
The applicant has had a sexually oriented business employee license revoked by the City within two years of the date of the current application. If the sexually oriented business employee license is denied, the temporary license previously issued is immediately deemed null and void. Denial, suspension, or revocation of a license issued pursuant to this subsection shall be subject to appeal as set forth in Section 9-72.
B.
A license granted pursuant to this section shall be subject to annual renewal upon the written application of the applicant and a finding by the City that the applicant has not been convicted of any specified criminal activity as defined in this ordinance or committed any act during the existence of the previous license, which would be grounds to deny the initial license application. The renewal of the license shall be subject to the payment of the fee as set forth in Section 9-67.
C.
Within 30 days after receipt of a completed sexually oriented business
license application, the City shall approve or deny the issuance of
a license to an applicant. The City shall approve the issuance of
a license to an applicant unless:
1.
An applicant is under 18 years of age.
2.
An applicant is overdue in payment to the City of taxes, fees, fines,
or penalties assessed against or imposed upon him/her in relation
to any sexually oriented business.
3.
An applicant has failed to provide information required under the
terms of this ordinance for issuance of the license or has falsely
answered a question or request for information on the application
form.
4.
An applicant has been denied a license by the City to operate a sexually
oriented business within the preceding 12 months or whose license
to operate a sexually oriented business has been revoked within the
preceding 12 months.
5.
An applicant has been convicted of a specified criminal activity
defined in this ordinance.
6.
The premises to be used for the sexually oriented business have been
disapproved by the health department, fire department, or the Building
Official as being out of compliance with applicable health, fire,
or building laws and ordinances.
7.
The license fee required by this ordinance has not been paid.
8.
The sexually oriented business, as defined herein, is not in compliance
with the interior configuration requirements of this ordinance or
is not in compliance with locational requirements of this ordinance
or the locational requirements of any other part of the City's ordinances.
D.
The license, if granted shall state on its face the kind of license, the name of the person or persons to whom it is granted, and the expiration date. Sexually oriented business licenses shall further state the address of the sexually oriented business and the classification for which the license is issued pursuant to Section 9-64. Sexually oriented business licenses shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time. Sexually oriented business employee licenses shall be kept on the licensee's person or on the premises of the sexually oriented business where the licensee is working.
E.
The Health Department, Fire Department, and the Building Official
shall complete their certification that the premises is in compliance
or not in compliance within 25 days of receipt of the application
by the City.
The initial license and annual renewal fees for sexually oriented
business licenses and sexually oriented business employee licenses
shall be as follows: $100 for the initial fee for a sexually oriented
business license and $50 for annual renewal; $50 for the initial sexually
oriented business employee license and $25 for annual renewal.
A.
An applicant or licensee shall permit representatives of the Police
Department, Health Department, Fire Department, Zoning Department,
or other City departments or 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 ordinance, during
those times when the sexually oriented business is occupied by patrons
or is open to the public. This section shall be narrowly construed
by the City to authorize reasonable inspections of the licensed premises
pursuant to this ordinance, but not to authorize a harassing or excessive
pattern of inspections.
B.
A person who operates a sexually oriented business or his agent or
employee commits a misdemeanor if he refuses to permit such lawful
inspection of the premises at any time it is open for business.
A.
Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in Section 9-65. Application for renewal shall be made at least 60 days before the expiration date, and when made less than 60 days before the expiration date, the expiration of the license will not be affected.
B.
When the City denies renewal of a license, the applicant shall not
be issued a license for one year from the date of denial. If, subsequent
to denial, the City finds that the basis for denial of the renewal
license has been corrected or abated, the applicant may be granted
a license if at least 90 days have elapsed since the date denial became
final.
The City shall suspend a license for a period not to exceed
30 days if it determines that the licensee has:
A.
The City shall revoke a license if a cause of suspension in Section 9-70 occurs and the license has been previously suspended within the preceding 12 months.
B.
The City shall revoke a license if it determines that:
1.
A licensee gave false information in the material submitted during
the application process;
2.
A licensee has knowingly allowed possession, use, or sale of controlled
substances on the premises;
3.
A licensee has knowingly allowed prostitution on the premises;
4.
A licensee knowingly operated the sexually oriented business during
a period of time when the licensee's license was suspended;
5.
Except in the case of an adult motel, a licensee has knowingly allowed
any act of sexual intercourse, sodomy, oral copulation, masturbation,
or other sex act to occur in or on the licensed premises; or
6.
A licensee is delinquent in payment to the City, County, or State
for any taxes or fees in relation to a sexually oriented business.
C.
When the City revokes a license, the revocation shall continue for
one year, and the licensee shall not be issued a sexually oriented
business license for one year from the date the revocation became
effective. If, subsequent to revocation, the City finds that the basis
for the revocation has been corrected or abated, the applicant may
be granted a license if at least 90 days have elapsed since the date
the revocation became effective.
D.
After denial of an application, or denial of a renewal of an application,
or suspension or revocation of any license, the applicant or licensee
may seek prompt judicial review of such administrative action in any
court of competent jurisdiction. The administrative action shall be
promptly reviewed by the court.
A.
When the City issues a written notice of intent to deny, suspend, or revoke a license, the City shall immediately send such notice, which shall include the specific grounds under this Ordinance 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 City 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 City, a written request for a hearing. If the respondent does not request a hearing within said 10 days, the City's written notice shall become a final denial, suspension, or revocation, as the case may be, on the 30th day after it is issued, and shall be subject to the provisions of Subsection B of this section.
1.
If the respondent does make a written request for a hearing within
said 10 days, then the City 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 City shall provide for the hearing to be transcribed.
2.
At the hearing, the respondent shall have the opportunity to present
all of respondent's arguments and to be represented by counsel, present
evidence and witnesses on his or her behalf, and cross-examine any
of the City's witnesses. The City 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 Ordinance, to the
respondent within five days after the hearing. 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 thirtieth 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 City 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 City shall contemporaneously therewith issue
the license to the applicant.
B.
If any court action challenging a licensing decision is initiated,
the City 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 decision. The following
shall apply to any sexually oriented business that is, in all respects,
lawfully operating as a sexually oriented business, or any sexually
oriented business employee that is, in all respects, 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 Clerk of the City: Upon the filing of any court action to
appeal, challenge, restrain, or otherwise enjoin the City's enforcement
of the denial, suspension, or revocation, the City shall immediately
issue the applicant or licensee (respondent) a provisional license.
The provisional license shall allow the respondent to continue operation
of the sexually oriented business or to continue employment as a sexually
oriented business employee and will expire upon the court's entry
of a judgment on the respondent's appeal or other action to restrain
or otherwise enjoin the City's enforcement.
C.
A licensee shall not transfer his/her license to another, nor shall
a licensee operate a sexually oriented business under the authority
of a license at any place other than the address designated in the
application.
A.
It shall be unlawful for any person to operate or cause to be operated
a sexually oriented business within 250 feet of:
1.
A church, synagogue, mosque, temple or building which is used primarily
for religious worship and related religious activities;
2.
A public or private educational facility including but not limited
to child day care facilities, nursery schools, preschools, kindergartens,
elementary schools, private schools, intermediate schools, junior
high schools, middle schools, high schools, vocational schools, secondary
schools, continuation schools, special education schools, junior colleges,
and universities; school includes the school grounds, but does not
including facilities used primarily for another purpose and only incidentally
as a school;
4.
A public park or recreational area which has been designated for
park or recreational activities including but not limited to: parks,
playgrounds, beaches, marinas, boat launches, picnic shelters, nature
trails, swimming pools, athletic fields, basketball or tennis courts,
pedestrian/bicycle paths, wilderness areas, dog parks, or other similar
public lands within the City which is under the control, operation,
or management of the City's Park and Recreation Board;
6.
An entertainment business which is oriented primarily towards children
or family entertainment; or
7.
A licensed premises, licensed pursuant to the alcoholic beverage
control regulations of the State.
B.
For the purpose of Subsection A of this section, measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the building or structure used to conduct a sexually oriented business, to the nearest property line of the premises of a use listed in Subsection A. The presence of a use listed in Subsection A that is located outside the geographic boundaries of the City shall be irrelevant for purposes of calculating and applying the distance requirements of this section.
A.
Evidence that a sleeping room in a hotel, motel, or a similar commercial
establishment has been rented and vacated two or more times in a period
of time that is less than 10 hours creates a rebuttal presumption
that the establishment is an adult motel as that term is defined in
this ordinance.
B.
A person commits a misdemeanor if, as the person in control of a
sleeping room in a hotel, motel, or similar commercial establishment
that does not have a sexually oriented license, he rents or subrents
a sleeping room to a person and, within 10 hours from the time the
room is rented, he rents or subrents the same sleeping room again.
A.
A person who operates or causes to be operated a sexually oriented
business, other than an adult motel, which exhibits on the premises
in a viewing room of less than 150 square feet of floor space, a film,
videocassette, live entertainment, or other video reproduction which
depicts specified sexual activities or specified anatomical areas,
shall comply with the following requirements:
1.
Upon application for a sexually oriented business license, the application
shall be accompanied by a diagram of the premises showing a plan thereof
specifying the location of one or more manager's stations and the
location of all overhead lighting fixtures and designating any portion
of the premises in which patrons will not be permitted. A manager's
station may not exceed 32 square feet of floor area. The diagram shall
also designate the place at which the permit will be conspicuously
posted, if granted. A professionally prepared diagram in the nature
of an engineer's or architect's blueprint shall not be required; however,
each diagram should be oriented to the north or to some designated
street or object and should be drawn to a designated scale or with
marked dimensions sufficient to show the various internal dimensions
of all areas of the interior of the premises to an accuracy of plus
or minus six inches. The City may waive the foregoing diagram for
renewal applications if the applicant adopts a diagram that was previously
submitted and certifies that the configuration of the premises has
not been altered since it was prepared.
2.
The application shall be sworn to be true and correct by the applicant.
3.
No alteration in the configuration or location of a manager's station
may be made without the prior approval of the City.
4.
It is the duty of the licensee of the premises to ensure that at
least one licensed employee is on duty and situated in each manager's
station at all times that any patron is present inside the premises.
5.
The interior of the premises shall be configured in such a manner
that there is an unobstructed view from a manager's station of every
area of the premises to which any patron is permitted access for any
purpose, excluding rest rooms. Rest rooms may not contain video reproduction
equipment. If the premises have two or more manager's stations designated,
then the interior of the premises shall be configured in such a manner
that there is an unobstructed view of each area of the premises to
which any patron is permitted access for any purpose from at least
one of the manager's stations. The view required in this subsection
must be by direct line of sight from the manager's station.
6.
It shall be the duty of the licensee to ensure that the view area specified in Subsection A(5) remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times, to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection A(1) of this section.
7.
No viewing room of less than 150 square feet of floor space may be
occupied by more than one person at any time.
8.
The premises shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place to which patrons are
permitted access at an illumination of not less than five foot-candles
as measured at the floor level.
9.
It shall be the duty of the licensee to ensure that the illumination
described above is maintained at all times that any patron is present
in the premises.
10.
No licensee shall allow openings of any kind to exist between viewing
rooms or booths.
11.
No person shall make or attempt to make an opening of any kind between
viewing booths or rooms.
12.
The licensee shall, during each business day, regularly inspect the
walls between the viewing booths to determine if any openings or holes
exist.
13.
The licensee shall cause all floor coverings in viewing booths to
be nonporous, easily cleanable surfaces, with no rugs or carpeting.
14.
The licensee shall cause all wall surfaces and ceiling surfaces in
viewing booths to be constructed of, or permanently covered by, nonporous,
easily cleanable material. No wood, plywood, composition board or
other porous material shall be used within 48 inches of the floor.
A.
A nude model studio shall not employ any person under the age of
18 years.
B.
It shall be unlawful for any person under the age of 18 years to
appear seminude or in a state of nudity in or on the premises of a
nude model studio. It is a defense to prosecution under this subsection
if the person under 18 years was in a rest room not open to public
view or visible to any other person.
C.
It shall be unlawful for any person to appear in a state of nudity,
or to knowingly allow another to appear in a state of nudity in an
area of a nude model studio premises which can be viewed from the
public right-of-way.
D.
A nude model studio shall not place or permit a bed, sofa, or mattress
in any room on the premises, except that a sofa may be placed in a
reception room open to the public.
A.
It shall be a misdemeanor for a person to knowingly or intentionally,
in a sexually oriented business, appear in a state of nudity or depict
specified sexual activities.
B.
It shall be a misdemeanor for a person to knowingly or intentionally,
in a sexually oriented business, appear in a seminude condition unless
the person is an employee who, while seminude, shall be at least six
feet from any patron or customer and on a stage at least two feet
from the floor.
C.
It shall be a misdemeanor for an employee, while seminude in a sexually
oriented business, to solicit any pay or gratuity from any patron
or customer or for any patron or customer to pay or give any gratuity
to any employee, while said employee is seminude in a sexually oriented
business.
D.
It shall be a misdemeanor for an employee, while seminude, to touch
a customer or the clothing of a customer in a sexually oriented business.
E.
It shall be a misdemeanor for any person to sell, use, or consume
alcoholic beverages on the premises of a sexually oriented business.
It shall be unlawful for any person to knowingly or recklessly
allow a person under the age of 18 years on the premises of a sexually
oriented business.
No sexually oriented business, except for an adult motel, may
remain open at any time between 12:00 midnight and 6:00 a.m. on any
day.
Any person, corporation, partnership or any other legal entity
who violates the provisions of this ordinance shall be guilty of a
misdemeanor and may be fined not more than $500 and/or imprisoned
for not more than 90 days, or both. Each day that a violation is permitted
to exist or occur, and each separate occurrence, shall constitute
a separate offense.
All other ordinances or parts of ordinances in conflict with
the provisions of this ordinance, except as herein provided, are hereby
repealed only to the extent necessary to give this ordinance full
force and effect.
If any section, subsection, clause, phrase, or portion of this
ordinance, or any application thereof, is for any reason held invalid
or unconstitutional by any court of competent jurisdiction, such portion,
or application thereof, shall be deemed a separate, distinct and independent
provisions, and such holding shall not affect the validity of the
remaining portion thereof.
The repeal or amendment herein shall not abrogate or affect
any offense or act committed or done, or any penalty or forfeiture
incurred, or any pending litigation or prosecution of any right established
or occurring prior to the effective date of this ordinance, as amended.
This ordinance, as amended, shall take full force and effect
30 days after publication.
