[HISTORY: Adopted by the Township Council of the Township of Denville 4-5-2011 by Ord. No. 4-11 (Ch. 30 of the 1978 Revised General Ordinances). Amendments noted where applicable.]
It is the responsibility of the local government to adopt regulations designed to promote the public health, safety and general welfare. Such power has been delegated to the municipalities from the legislature of the State of New Jersey. The Township Committee of the Township of Denville, in order to better promote the public health, safety and general welfare of its citizens, does ordain as follows.
Pursuant to N.J.S.A. 2C:34-2b, the Legislature of the State of New Jersey has determined that it is a fourth-degree crime to sell, distribute, rent or exhibit material which is obscene. Consequently, the State of New Jersey has preempted the Township of Denville from prohibiting the sale of material which the Township believes to be obscene. However, in order to promote the public health, safety and general welfare of its citizens, the Township of Denville may promulgate reasonable time, place and manner regulations with respect to the sale, distribution, rental or exhibition of various items by sexually oriented businesses.
The Township of Denville has reviewed studies conducted by the American Family Association (AFA) Center for Law and Policy, as well as studies conducted in cities including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and findings reported in the Final Report of the Attorney General's Commission on Pornography (1986), the Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses (June 6, 1989, State of Minnesota), statistics obtained from the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention and through complaints lodged within its own jurisdiction indicates that sexually oriented businesses may have a deleterious effect on both the existing businesses adjacent to such establishments as well as the surrounding residential areas; cause increased crime, especially prostitution; adversely affect property value; create an atmosphere which is inimical to the values of a significant segment of the Township's population; and encourage residents and businesses to move elsewhere and that such sexually oriented businesses, when located in close proximity to each other, contribute to urban blight and downgrade the quality of life in the adjacent areas.
The Township of Denville further determines through its own investigation and review of complaints brought within the Township as well as through the aforementioned studies that sexually oriented businesses may be targeted by patrons of such establishments for engaging in sexual acts. Such conduct may occur in sexually oriented businesses which install booths with doors in which patrons can view adult-oriented movies or videotape or film or view other forms of adult entertainment.
It is the purpose of this chapter to regulate both preexisting and subsequently established sexually oriented businesses so as to minimize and control the adverse effects recognized in the preceding section and to promote the public health, safety and general welfare of the citizens of the Township of Denville. The Township Council of the Township of Denville finds that the secondary effects of adult entertainment establishments, as established through the reports and studies of other cities and municipalities with the appropriate resources to conduct the same, as well as complaints received from residents within the Township of Denville, is deleterious and inimical to health, safety and general welfare of the residents of the municipality. It is not the purpose of this chapter to restrict or deny access by adults to sexually oriented material protected by the First Amendment nor will this chapter have the effect of restricting or denying such access.
As used in this chapter, the following terms shall have the meanings indicated:
- ADULT ARCADE
- Any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically or mechanically controlled still or image-producing devices are maintained to show images to one person per machine at any one time and where the images displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
- ADULT BOOKSTORE or ADULT VIDEO STORE
- A commercial establishment which as its principal business conspicuously offers for sale or for rental for any form of consideration any one or more of the following:
- A. Books, magazines, periodicals or other printed material or photographs, films, motion pictures and videocassette or video reproductions, slides or other visual representations which depict or describe specified sexual activities or specified anatomical areas.
- B. Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities.
- ADULT CABARET
- A nightclub, bar, restaurant or other commercial establishment, whether or not same is licensed to sell alcoholic beverages for on-premises consumption, which regularly features:
- A. Persons who appear in a state of nudity; or
- B. Live performances which are characterized by the exposure of specified anatomical areas or by sexual conduct or by specified sexual activities; or
- C. Films, motion pictures, videocassettes, compact disks, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities, sexual activities, sexual conduct or specified anatomical areas.
- ADULT MOTION-PICTURE THEATER
- A commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas. Adult motion-picture theaters shall meet the seating criteria established for all adult theaters.
- ADULT SEX TOY OR EQUIPMENT SHOP
- A commercial establishment which sells retail, in whole or in part, as defined in the popular culture, sex toys and/or equipment utilized by some as part of the sex act. This is a propriety; these types of items shall be called sexual paraphernalia.
- NUDITY or A STATE OF NUDITY
- The appearance of human bare buttocks, anus, male genitals, female genitals or female breasts.
- OBSCENE MATERIALS
- The definition of obscene materials set forth in N.J.S.A. 2C:34-2, as the same shall be from time to time amended or supplemented, as well as in accordance with and not more strictly than judicial interpretations thereof pursuant to the Constitution of the United States and of the State of New Jersey finally concluded in courts of jurisdiction sufficient to render decisions on constitutional questions of general application.
- An individual, proprietorship, partnership, corporation, association or other legal entity.
- SEXUALLY ORIENTED BUSINESS
- An adult arcade, adult bookstore, adult cabaret, adult motion-picture theater or adult theater.
- SPECIFIED SEXUAL ACTIVITIES
- Includes any of the following:
It shall be a violation of this chapter if a person operates or causes to operate or allows to be operated a sexually oriented business:
Within 1,000 feet of a place of worship.
Within 1,000 feet of a school, whether public or private, or within 1,000 feet of any school bus stop.
Within 1,000 feet of any other sexually oriented business.
Within 1,000 feet of any residential use or zone.
Within 1,000 feet of any public park or playground.
Measurements shall be made in a straight line, without regard to intervening structures or objects, from the nearest point of the building or structure used as a part of the premises where a sexually oriented business is conducted to the nearest property line of the premises of a place of worship, a school, a boundary of a residential district, a public park or playground, a lot devoted to residential use or a school bus stop.
A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the establishment of the sexually oriented business, of a place of worship, school, public area, residential district or residential lot within 1,000 feet of the sexually oriented business.
Sexually oriented businesses shall conform to the following requirements:
Every sexually oriented business shall be surrounded by a perimeter buffer of at least 50 feet in width with plantings, fence or other physical divider along the outside of the perimeter sufficient to impede the view of the interior of the premises in which the business is located. This subsection shall not apply to a sexually oriented business already lawfully operating on the effective date of this chapter.
No sexually oriented business shall display more than three exterior signs consisting of at least one sign giving notice that the premises are off limits to minors. The identification sign shall be no more than 30 square feet in size.
Any sexually oriented business having available for customers, patrons or members any booth, room or cubicle for private viewing of any adult entertainment must comply with the following requirements:
Access. Each booth, room or cubicle shall be totally accessible to and from aisles and public areas of the sexually oriented business and shall be unobstructed by any, door, lock or other control-type devices.
Construction. Every booth, room or cubicle shall meet the following construction requirements in addition to those requirements imposed by the Construction Code:
Each booth, room or cubicle shall be separated from adjacent booths, rooms and cubicles and any nonpublic areas by a wall.
Have at least one side totally open to a public lighted aisle so that there is an unobstructed view at all times of anyone occupying same.
The lighting level of each booth, room or cubicle, when not in use, shall be a minimum of 10 footcandles at all times, as measured from the floor.
Occupants. Only one individual shall be permitted to occupy a booth, room or cubicle at any time No occupant of same shall engage in any type of sexual activity, cause any bodily discharge or litter while in the booth, room or cubicle. No individual shall damage or deface any portion of the booth, room or cubicle.
The interior of any sexually oriented business shall be adequately lighted and constructed so that every portion thereof is readily visible to the Clerk or other supervisory personnel at the counter or other regular station.
No person under the age of 18 years shall be permitted on the premises of a sexually oriented business for any purpose.
No display visible from the exterior of the sexually oriented business shall contain material of a sexually oriented nature.
Sexually oriented businesses shall only be permitted to operate within the jurisdiction of the Township of Denville between the hours of 10:00 a.m. and 10:00 p.m.
Administration and enforcement of this chapter shall be the responsibility of the Township of Denville Zoning Official, Township of Denville Police Department, Township of Denville Health Officer and the Township of Denville Engineer. The Township, by and through its authorized representatives, is hereby authorized to enter any property regulated by this ordinance, at reasonable or necessary times in order to properly inspect for violations in accordance with § 444-7 of this chapter.
An owner, agent or employee of a sexually oriented business shall permit representatives of the Denville Township Police Department, the Township Health Department and the Township Zoning and Construction Departments to inspect the premises for the purpose of ensuring compliance with the law, at any time the establishment is occupied or open for business.
A person who operates a sexually oriented business or his or her agents or employees commit an offense if he or she refuses to permit a lawful inspection of the premises by any of the above representatives at any time the establishment is occupied or open for business.
It shall be a petty disorderly offense for a retailer as defined by N.J.S.A. 2C:34-3.1 to display or permit to be displayed at his or her business premises, any obscene material as defined by N.J.S.A. 2C:34-3 at a height of less than five feet or without a blinder or other covering placed or printed on the front of the material displayed. The public display of the obscene material shall constitute presumptive evidence that the retailer knowingly made or permitted the display.