[HISTORY: Adopted by the Village Council of the Village of
Vicksburg 3-6-2006 by Ord. No.
253 (Ch. 79 of the 1995 Village Code). Amendments
noted where applicable.]
A.
Purpose.
(1)
In the development and execution of this chapter, it is recognized
that there are some uses, known as adult regulated uses or sexually-oriented
businesses, which, because of their nature, have serious objectionable
operational characteristics. Special regulation of these uses is necessary
to prevent the adverse secondary effects associated with such enterprises.
The controls contained within this chapter are for the purpose of
preventing the negative secondary effects associated with sexually-oriented
businesses.
(2)
It is the purpose of this chapter to regulate sexually-oriented businesses
in order to promote the health, safety, morals, and general welfare
of the citizens of the Village and to establish reasonable and uniform
regulations to prevent the deleterious secondary effects of sexually-oriented
businesses within the Village. 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.
(1)
This chapter is based on evidence of the adverse secondary effects
of adult uses that is within the common knowledge of municipalities
and is widely reported in judicial opinions, media reports, land use
studies, and crime impact reports made available to the Village Council,
several of which are set forth herein. Additionally, the Village Council
relies on repeated judicial findings of municipalities' reasonable
reliance on this body of secondary effects evidence to support time,
place, and manner regulations of sexually-oriented businesses. The
Village Council relies upon and incorporates the findings of secondary
effects discussed in the following nonexhaustive list of cases from
the U.S. Supreme Court: Pap's A.M. v. City of Erie, 529 U.S. 277 (2000);
City of Los Angeles v. Alameda Books, Inc., 122 S. Ct. 1728 (2002);
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young
v. American Mini Theatres, 426 U.S. 50 (1976), Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991); FW/PBS, Inc. v. City of Dallas, 493 U.S.
215 (1990); California v. LaRue, 409 U.S. 109 (1972).
(2)
The Village Council also relies on relevant decisions of federal
appellate and trial courts: DLS, Inc. v. City of Chattanooga, 107
F. 3d 403 (6th Cir. 1997); Currence v. City of Cincinnati, 2002 U.S.
App. LEXIS 1258; 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); Richland Bookmart v. Nichols, 137 F. 3d 435 (6th
Cir. 1998); Center for Fair Public Policy v. Maricopa County, 2003
U.S. App. Lexis 14918 (9th Cir. July 28, 2003); Deja Vu v. Metro Government,
1999 U.S. App. LEXIS 535 (6th Cir. 1999); Bamon Corp. v. City of Dayton,
7923 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); Deja Vu of Nashville, Inc., et al.
v. Metropolitan Government of Nashville and Davidson County, 274 F.
3d 377 (6th Cir. 2001); 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); World Wide Video of Spokane, Inc. v.
City of Spokane, 227 F. 3d 1143 (E.D. Wash. 2002); Threesome Entertainment
v. Strittmather, 4 F. Supp. 2d 710 (N.D. Ohio 1998); Kentucky Restaurant
Concepts, Inc. v. City of Louisville and Jefferson County, 209 F.
Supp. 2d 672 (W.D. Ky. 2002).
(3)
Additionally, the Village Council expressly relies upon Michigan
cases relating to adult businesses, municipal regulatory authority,
and public nuisances, including, but not limited to, the following
cases: Rental Property Owners Association of Kent County v. City of
Grand Rapids, 455 Mich. 246; 566 N.W. 2d 514 (1996); Michigan ex rel
Wayne County Prosecutor v. Dizzy Duck, 449 Mich. 353; 535 N.W. 2d
178 (1995); City of Warren v. Executive Art Studio, 1998 Mich. App
LEXIS 2258 (1998); Tally v. City of Detroit, 54 Mich. App 328 (1974);
Jott, Inc. v. Clinton Township, 224 Mich. App 513 (1997).
(4)
The Village Council also relies upon media reports that document
the harms associated with adult businesses: See, e.g., Muskegon Man
Convicted in Beating Death of Adult Bookstore Manager, Associated
Press state & local wire, Sept. 9, 1999; Katie Merx, X-Rated Inkster
Theater Razed: Officials, Cops, Residents Cheer Demolition of Melody,
An Embarrassment for 22 Years, The Detroit News, August 19, 1999,
at D3 (discussing documented sexual activity in and around adult business);
Craig Garrett, Suburbs Declare War on Smut Shops, The Detroit News,
June 30, 1999, at A1 (describing how adult theater patrons would solicit
young people in the area for sex); Justin Hyde, Warren Leaders Want
to Pursue Product Liability Against Porn Shop, Associated Press state
& local wire, Feb. 4, 1999 (child rapist arrested in peep show
establishment).
(5)
The Village Council further relies on reports concerning secondary
effects occurring in and around sexually-oriented businesses, including,
but not limited to, Phoenix, Arizona - 1984; Minneapolis, Minnesota
- 1980; Houston, Texas - 1997; Indianapolis, Indiana - 1984; Amarillo,
Texas - 1977; Garden Grove, California - 1991; Los Angeles, California
- 1977; Whittier, California - 1978; Austin, Texas - 1986; Seattle,
Washington - 1989; Oklahoma City, Oklahoma - 1986; Cleveland, Ohio
- 1977; Dallas, Texas - 1997; McCleary Report, Alliance, Ohio - 2002;
Tucson, Arizona - 1990; Testimony, Warner-Robins, Georgia - 2000;
St. Croix County, Wisconsin - 1993; Bellevue, Washington - 1998; Newport
News, Virginia - 1996; St. Cloud, Minnesota - 1994; New York Times
Square Study - 1994; Phoenix, Arizona - 1995-98; and also on findings
of physical abuse from the paper entitled "Stripclubs According to
Strippers: Exposing Workplace Sexual Violence," by Kelly Holsopple,
Program Director, Freedom and Justice Center for Prostitution Resources,
Minneapolis, Minnesota; from "Sexually-Oriented Businesses: An Insider's
View," by David Sherman, presented to the Michigan House Committee
on Ethics and Constitutional Law, Jan. 12, 2000; and the Report of
the Attorney General's Working Group on the Regulation of Sexually-Oriented
Businesses, (June 6, 1989, State of Minnesota). Based on the cases
and reports documenting the adverse impact of adult businesses, the
Council 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, illicit
sex acts, potential spread of disease, lewdness, public indecency,
illegal drug use and drug trafficking, negative impacts on property
values, urban blight, pornographic litter, and sexual assault and
exploitation.
(b)
Sexual acts, including masturbation, oral and anal sex, occur
at unregulated sexually-oriented businesses, especially those that
provide private or semiprivate rooms, booths, or cubicles for view
films, videos, or live sexually explicit shows.
(c)
Each of the foregoing negative secondary effects constitutes
a harm, which the Village has a substantial government interest in
preventing and/or abating.
C.
Adult regulated uses enumerated.
(1)
The following adult regulated uses are subject to these controls:
(a)
Adult arcade or mini motion-picture theaters;
(b)
Adult bookstores, adult novelty stores, or adult video stores;
(c)
Adult cabarets;
(d)
Adult motels;
(e)
Adult motion-picture theaters;
(f)
Adult outdoor motion-picture theaters;
(g)
Adult model studios;
(h)
Adult physical culture businesses;
(i)
Adult theaters;
(j)
Adult personal service businesses.
As used in this chapter, the following terms shall have the
indicated meanings:
Any place to which the public is permitted or invited which
contains adult booths, as defined herein, and 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
patrons and where the images regularly displayed are distinguished
or characterized by their emphasis on matter depicting, describing
or relating to specified sexual activities or specified anatomical
areas (as defined herein).
A commercial establishment which has significant or substantial
portion of its inventory, or derives a significant or substantial
portion of its revenues, or devotes a significant or substantial portion
of its interior or exterior advertising, or maintains a substantial
section of its sales or display space, to the promotion and sale or
rental, for any form of consideration, of any one or more of the following:
Books, magazines, periodicals or other printed matter, or photographs,
films, motion pictures, video cassettes, compact discs, slides, or
other visual representations which are characterized by their emphasis
upon the display or description of specified sexual activities or
specified anatomical areas.
Noncontraceptive instruments, devices, or paraphernalia which
are designed for use in connection with specified sexual activities
or marketed primarily for stimulation of human genital organs or for
persons' sadomasochistic use or abuse of themselves or others.
A partitioned area of less than 100 square feet inside an
adult regulated use, which is:
Designed or regularly used for the viewing of books, magazines,
periodicals, or other printed matter, photographs, films, motion pictures,
video cassettes, slides, or other visual representations, recordings,
and novelties or devices which are distinguished or characterized
by their emphasis on matter depicting, describing, or relating to
specified sexual activities or specified anatomical areas by one or
more persons; and
Is accessible to any person, regardless of whether a fee is
charged for access. "Adult booth" does not include a foyer through
which any person can enter or exit the establishment or a restroom.
A nightclub, cafe, restaurant, lounge, bar or similar establishment
(which may or may not include the service of food or beverages), which
regularly features persons who appear seminude.
Any place where a person who displays specified anatomical
areas is regularly provided to be observed, sketched, drawn, painted,
sculptured, photographed or similarly depicted by other persons who
pay money or any form of consideration. Such an establishment includes,
but is not limited to, the following activities and services: modeling
studios, body painting studios, wrestling studios, individual theatrical
performance or dance performances, barber shops or hair salons, car
washes, and/or convenience stores. An adult model studio shall not
include a proprietary school licensed by the State of Michigan or
a college, junior college, or university supported entirely or in
part by public taxation; a private college or university which maintains
and operates educational programs in which credits are transferable
to a college, junior college, or university supported entirely or
partly by taxation; or in a structure: (1) that has no sign visible
from the exterior of the structure and no other advertising that indicates
a nude or seminude person is available for viewing; and (2) where
in order to participate in a class a student must enroll at least
three days in advance of the class; and (3) where no more than one
nude or seminude model is on the premises at any one time.
A hotel, motel or similar commercial establishment, which:
Offers accommodations to the public for any form of consideration;
and
Provides patrons with closed circuit television transmissions,
films, motion pictures, video cassettes, slides, or other photographic
reproductions which are distinguished or characterized by their emphasis
on matter depicting, describing, or relating to specified sexual activities
or specified anatomical areas; and
Has a sign visible from the public right-of-way, which:
A commercial establishment where, for any form of consideration,
films, motion pictures, videos, slides, or other photographic reproductions
are regularly shown in which a substantial portion of the total presentation
is devoted to the showing of material which are distinguished or characterized
by their emphasis on the depiction, description, or relation to specified
sexual activities or specified anatomical areas for observation or
entertainment of patrons, guests, and/or members.
A commercial establishment having an open lot or part thereof
with appurtenant facilities devoted primarily to the presentation
of motion pictures, films, theatrical productions, and other forms
of visual productions for any form of consideration to persons in
motor vehicles or in outdoor seats, and regularly presenting material
distinguished or characterized by their emphasis on matter depicting,
describing, or relating to specified sexual activities or specified
anatomical areas for observation or entertainment of patrons, guests,
and/or members.
A commercial business having as a principal activity a person,
while nude or partially nude, providing personal services for another
person on an individual basis. Such a business includes, but is not
limited to, the following activities and services: modeling studios,
body painting studios, wrestling studios, individual theatrical performances
or dance performances, barber shops or hair salons, car washes, convenience
stores or other commercial business establishments where food or goods
and services are sold, and tattoo parlors where services are being
performed by a person who is nude or partially nude. "Nude" or "partially
nude" is defined as having attire which reveals specified anatomical
areas, as defined in this section.
Any commercial establishment, club or business, by whatever
name designated, which regularly offers or advertises or is equipped
or arranged to provide massages, body rubs, alcohol rubs, physical
stimulation, baths, or other similar treatment by any person. An adult
physical cultural business may include, but is not limited to, establishments
commonly known as massage parlors, health spas, sauna baths, Turkish
bathhouses, and steam baths.
Adult physical culture business, adult bookstore, adult novelty
store, adult video store, adult theater; adult cabaret, adult motion-picture
theater, adult outdoor motion-picture theater, adult arcade or mini
motion-picture theater, adult motel, adult booth, or adult personal
service business.
A commercial establishment which is a theater, concert hall,
auditorium, or similar commercial establishment, either indoor or
outdoor in nature, which, for any form of consideration, regularly
features live performances which are distinguished or characterized
by their emphasis on special sexual activities or by exposure of specified
anatomical areas for observation by guests, patrons and/or members.
An adult theater does not include a theater, concert hall, auditorium
or similar establishment which, for any fee or consideration, regularly
features live performances which are not distinguished or characterized
by their emphasis on the depiction or description of specified sexual
activities or specified anatomical areas in that any such depiction
or description is only incidental to the primary purpose of the performance.
An adult theater does not include a proprietary school licensed by
the State of Michigan or a college, junior college, or university
supported entirely or in part by public taxation or 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 party by taxation.
Any business, location, or place which conducts or allows
to be conducted on its premises any activity for commercial gain.
The dominant or principal theme of the object so described.
For example, "films which are distinguished or characterized by an
emphasis upon the exhibition or description of specified sexual activities
or specified anatomical areas," the films so described are those whose
dominant or principal character and theme are the exhibition or description
of "specific anatomical areas" or "specified sexual activities."
A person who performs any service for any consideration in
the premises of an adult regulated use 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 adult regulated use. "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.
The site or premises on which an adult regulated use is located,
including the interior of the establishment or portions thereof upon
which certain activities or operations are being conducted for commercial
gain.
The knowing or intentional live display of a human genital
organ or anus with less than a fully opaque covering or a female individual's
breast with less than a fully opaque covering of the nipple and areola.
Nudity, as used in this chapter, does not include a woman's breast-feeding
of a baby, whether or not the nipple or areola is exposed during or
incidental to the feeding.
An owner, manager, or other person who exercises control
over the premises or operation of an adult regulated use.
In the context of "regularly features," "regularly shown"
or similar contexts in this chapter, means a consistent or substantial
course of conduct, such that the films or performances exhibited constitute
a substantial portion of the films or performances offered as a part
of the ongoing business of the sexually-oriented business.
A state of dress in which opaque covering covers no more
than the genitals or anus and nipple and areola of the female breast,
as well as portions of the
body covered by supporting straps or devices. This definition shall
not include any portion of the cleavage of the human female breast
exhibited by a dress, blouse, skirt, leotard, bathing suit, or other
wearing apparel, provided that the areola and nipple are not exposed
in whole or in part.
Portions of the human body defined as follows:
The explicit act or display of one or more of the following:
Nothing contained in this chapter is intended, or shall be construed,
to permit or authorize activities that are unlawful under state law
or Village ordinance. It shall be unlawful for an operator to knowingly
violate the following regulations or to allow, either knowingly or
through negligent failure to supervise, an employee or a patron to
violate the following regulations.
A.
It shall be a violation of this chapter for a patron, employee or
any other person to knowingly or intentionally, in an adult regulated
use, appear in a state of nudity, regardless of whether such public
nudity is expressive in nature.
B.
It shall be a violation of this chapter for an employee to knowingly
or intentionally, in an adult regulated use, appear in a seminude
condition except on a fixed stage that is at least 18 inches from
the floor and at least six feet removed from all patrons or customers.
C.
It shall be a violation of this chapter for any employee, while seminude
in an adult regulated use, to knowingly or intentionally receive any
pay or gratuity directly from any patron or customer or for any patron
or customer to knowingly or intentionally pay or give any gratuity
directly to any employee, while said employee is seminude in an adult
regulated use.
D.
It shall be a violation of this chapter for any employee, who regularly
appears seminude in an adult regulated use, to knowingly or intentionally
touch a customer or the clothing of a customer.
E.
It shall be a violation of this chapter to knowingly operate an adult
booth other than as follows: the interior of the premises shall be
configured in such a manner that there is an unobstructed view from
a manager's station to each area of the premises, including the interior
of each adult booth but excluding restrooms, to which any patron is
permitted for any purpose. A manager's station shall not exceed 32
square feet of floor area. The view required in this paragraph must
be by direct line of sight from a manager's station, and at least
one employee is required to be on duty and situated in each manager's
station at all times that any patron is in the area monitored by that
respective manager's station. The view area specified in this paragraph
shall remain unobstructed by any doors, curtains or walls at all times
that any patron is on the premises.
F.
It shall be a violation of this chapter for any person to knowingly
enter or remain present in an adult booth at any time the adult booth
is occupied by another person, unless two or more persons are necessary
for repair or maintenance of the booth.
G.
It shall be a violation of this chapter for any employee to create,
maintain or permit holes or openings of any kind to exist between
adult booths.
H.
It shall be a violation of this chapter for any operator to allow
an adult regulated use to remain open to customers between the hours
of 2:00 a.m. and 7:00 a.m. on any day.
I.
It shall be a violation of this chapter for any person to possess,
use or distribute any illegal controlled substance on the premises
of an adult regulated use.
J.
It shall be a violation of this chapter for any person to engage
in any act of lewdness, assignation or prostitution on the premises
of an adult regulated use.
Notwithstanding anything to the contrary, for the purposes of
this chapter, an act by an employee shall be imputed to the adult
regulated use operator for the purpose of establishing a violation
of this chapter only if the operator allowed, either knowingly or
through negligent failure to supervise, a violation of this chapter
to occur. It shall be a defense to liability that the operator was
powerless to prevent the violation.
The provisions of this chapter shall apply, upon its effective
date, to the activities of all adult regulated uses described herein,
provided that adult regulated uses which must make physical alterations
to the regulated business premises in order to conform to this chapter
shall have 180 days from the effective date of this chapter to make
such changes and so conform.
Any person, business or entity violating or refusing to comply
with any provision of this chapter shall, upon conviction, be deemed
guilty of a misdemeanor and shall be punished by imposition of a fine
not to exceed $500 or by imprisonment for a period not to exceed 90
days, or both. Further, any premises, building, dwelling, or other
structure in which an adult regulated use 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 nuisance abatement proceedings initiated by the Village in a court
of competent jurisdiction. Each day that a violation is permitted
to exist or occur shall constitute a separate operation or maintenance
of the violation.
Every provision of this chapter shall be narrowly interpreted,
construed and enforced in a manner consistent with the purpose of
this chapter and consistent with all applicable statutes and constitutional
provisions.
The chapter shall take effect on March 11, 2006. All other ordinances
or parts of ordinances inconsistent with this amendment are hereby
repealed.
