[Added 11-1-2010]
A.
Establishments in other communities in Maine that allow nude entertainment
have been found to create or result in certain undesirable conditions;
and
B.
Other communities have determined that nude entertainment can induce
individuals to engage in prostitution, sexual assaults, breaches of
the peace and other criminal activity; and
C.
The presentation of nude entertainment in an establishment can have
negative impacts upon surrounding neighborhoods and result in a tawdry
atmosphere in the area; and
D.
Establishments that allow or provide nude entertainment on the premises
must be carefully located in a manner that minimizes their negative
secondary effects on public health, safety and morals, as discussed
in detail in the McCleary Report for Jackson County, Missouri (dated
May 9, 2008);
E.
Therefore, the City Council of the City of Westbrook hereby determines
that this article is necessary to address the issues set forth in
this section and to lessen the negative effects that nude entertainment
can have on the City.
As used in this article, the following terms shall have the
meanings indicated:
Any retail establishment that offers food, beverages, merchandise,
products or entertainment services for sale to members of the general
public, operated as a for-profit business and treated as such for
federal or state tax purposes.
Any display of live persons in a state of nudity or in a
visible state of sexual excitement, whether or not clothed.
The showing of the human male or female genitals, pubic area
or buttocks or the female breast below the top of the nipple or the
depiction of covered male genitals in a discernibly turgid state.
Any individual, partnership, firm, association, corporation,
trustee, lessee, agent, assignee or other legal entity.
The entire building and parcel of land on which it is located
where a use occurs, including storage and unoccupied areas, regardless
of whether areas are partitioned into separate rooms or used for other
purposes.
Flagellation or torture by or upon a person clad in undergarments
or a mask or bizarre costume or the condition of being fettered, bound
or otherwise physically restrained on the part of one so clothed.
Acts of sodomy, masturbation, homosexuality, sexual intercourse
or physical contact with a person's clothed or unclothed genitals,
pubic area, buttocks or, if such person is a female, breast.
The condition of the human male or female genitals when in
a state of sexual stimulation or arousal.
No person operating a commercial establishment in the City of Westbrook shall present or allow presentation of any form of nude entertainment on the premises of the establishment concerned without first obtaining a use permit for that purpose from the City's Code Enforcement Officer. The application procedure and criteria for issuance of a use permit shall be as provided in §§ 335-14.2 and 335-14.3 of Chapter 335, Land Use; provided, however, that the following additional requirements shall apply to commercial establishments offering nude entertainment:
A.
The application for a use permit under §§ 335-14.2 and 335-14.3 of Chapter 335, Land Use, shall state that the proposed use includes nude entertainment. The application shall describe the nude entertainment to be offered, including the intended frequency and times, and shall indicate the area of the premises where the nude entertainment shall take place.
B.
The application shall disclose the name and current residence address
of all principals of the business concerned and shall disclose the
name and current residence address of all persons holding a financial
interest of 5% or more in the business concerned.
C.
Prior to granting a use permit, the Code Enforcement Officer shall forward the application to the Chief of Police for a criminal information background check on each of the persons named in the application under Subsection B above. The Code Enforcement Officer shall deny the application if the applicant, any principal of the business concerned or any holder of a 5% or greater financial interest in the business concerned has a record of conviction of prostitution, promoting prostitution or of a Class A, B, or C felony under Maine law, or equivalent offenses in other jurisdictions, during the ten-year period ending immediately prior to the application date.
D.
Location and standards.
(1)
No use permit shall be granted for a commercial establishment offering nude entertainment unless the premises concerned is located in an industrial zoning district and the premises concerned meets all district provisions and development standards contained in Chapter 335, Land Use, plus the following additional requirements:
(a)
No use permit shall be granted for a commercial establishment
offering nude entertainment if the premises concerned is located within
500 feet of any other such establishment for which a use permit previously
issued remains in force; any establishment licensed to sell alcohol
for on-premises or off-premises consumption under 28-A M.R.S.A. § 601
et seq.; a church, chapel, parish house or other place of worship;
or a public library, juvenile shelter or orphanage in existence as
of the application date, as measured from the main entrance of the
premises to the main entrance of a building by the ordinary course
of travel.
(b)
The premises concerned must not be located within 500 feet of the nearest residentially improved and used property located within a residential zoning district established under the provisions of Chapter 335, Land Use, as measured in a straight line from the premises to such property.
(c)
The premises concerned must not be located within 500 feet of
the nearest property line of any public or private school, school
dormitory, or school ground, public playground or public park, as
measured in a straight line from the premises to the property line.
E.
No use permit shall be issued for a commercial establishment offering
nude entertainment unless the premises concerned includes changing
rooms and toilet facilities for performers that are separated from
any area of the premises to which the public will have access.
F.
No use permit shall be issued for a commercial establishment offering
nude entertainment if any portion of the premises concerned consists
of residential apartments or other dwelling units, whether or not
occupied.
G.
The premises concerned, in addition, shall meet all applicable local
code requirements.
H.
The subsequent establishment of an establishment licensed to sell
alcohol, a public or private school or school dormitory, a church,
chapel, parish house or other place of worship, a public library,
a juvenile shelter or orphanage, a playground or public park or the
rezoning of any nonresidential district within 500 feet of a residential
district (with the exception of the zoning district in which the adult
business is situated) shall not affect the validity of a use permit
of a legally existing commercial establishment offering nude entertainment.
In the event of the subsequent establishment of any of the foregoing
uses, the commercial establishment offering nude entertainment shall
be treated as any other use permitted in the zoning district.
I.
Notwithstanding any other ordinance provision to the contrary, the
CEO must decide any application hereunder within 30 days of its receipt,
the applicant must appeal to the Zoning Board of Appeals within 30
days thereafter, the Zoning Board of Appeals must hear the case within
30 days of any such appeal, and then must decide the appeal within
30 days of the conclusion of the appeal hearing.
A.
No person under the age of 18 years shall be employed in any capacity
upon the premises of a commercial establishment that offers nude entertainment.
The operator of each such establishment shall be responsible for verifying
the age of each employee through photographic identification, including
hourly employees, salaried employees and all persons working on the
premises for tips, commissions or as independent contractors, contract
dancers or contract performers.
(1)
Each employer shall maintain records showing the name and date of
birth for each employee, including a copy of the photographic identification
used to verify age. Prior to any employee's beginning employment,
the operator shall bring the records to the Westbrook Police Department
to verify the age of the prospective employee. These records must
be maintained by the employer until six months after the employee
ceases to work for the employer. These records are also subject to
review by the Westbrook police on the business premises during normal
operating hours.
(2)
In the event that the Westbrook police reasonably suspect that any
employee listed in the records is under the age of 18 years, they
may copy the record for investigatory purposes. Any record or information
so obtained, and any subsequent information developed therefrom, is
declared to be "intelligence and investigative information" under
16 M.R.S.A. § 803, Subsection 7, the Intelligence and Investigative
Record Information Act, which, if publicly disclosed, would endanger
the life or safety of the individuals named therein. Record information
may be disclosed to the person named therein, notwithstanding this
declaration.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
B.
No person under the age of 18 years shall be admitted to any commercial
establishment offering nude entertainment, as a customer or patron.
The operator of each such establishment shall be responsible for verifying
the age of each person entering the premises, through photographic
identification.
C.
No alcoholic beverages shall be sold, served or given away on the
premises of any commercial establishment offering nude entertainment,
whether for on-premises or off-premises consumption. Further, operators
of any such establishment shall not allow customers or patrons to
bring or consume alcoholic beverages on the premises.
D.
There shall be no physical contact on the premises between patrons
and dancers. For the purposes of this subsection, physical contact
does not include incidental touching between a dancer and patron,
but does include contact that occurs if a patron is giving a monetary
tip to a dancer. In no case shall incidental contact be deemed to
include physical contact otherwise prohibited by law.
E.
Dancers or performers who remove any garments during the nude entertainment
shall not toss or throw those garments to any customer or patron.
F.
Dancers or performers providing the nude entertainment shall not engage in any sadomasochistic abuse or sexual conduct as defined in § 234-27.
G.
Nude entertainment presented in a commercial establishment shall
not include any showing of the male or female genitals, pubic area,
perineum or anus or the female breast below the top of the nipple
of any person with less than a fully opaque covering.
H.
No nude entertainment shall be presented after the hour of 1:00 a.m.,
local prevailing time. All premises offering nude entertainment shall
be closed and cleared of customers and patrons between the hours of
1:15 a.m. and 6:00 a.m. Mondays through Saturdays and 9:00 a.m. Sundays,
local prevailing time.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
A.
Any violation of this article by the owner, lessee, licensee, permittee or operator of a premises shall constitute a land use violation and shall be subject to prosecution and penalties as provided in 30-A M.R.S.A. § 4452, provided that the minimum fine for any violation by such persons shall be as set forth in Chapter A401, Master Fine Schedule, for each offense. Each day in violation shall constitute a separate offense. In addition, the Code Enforcement Officer may suspend or revoke the use permit for any establishment offering nude entertainment in violation of this article, or in violation of conditions contained in the use permit. Suspension or revocation of a certificate of occupancy shall be subject to administrative appeal as provided in § 335-15.3 of Chapter 335, Land Use, subject to the various time requirements imposed under § 234-28I above.
The provisions of § 234-28A through D shall not apply to theaters, dinner theaters, licensed movie theaters or similar establishments which are primarily devoted to theatrical performances or the presentation of movies, provided that any displays of live nudity within such theaters, dinner theaters, licensed movie theaters or similar establishments shall be limited to occasional nudity by bona fide stage actors during the course of theatrical performances; provided also that the provisions of §§ 234-28E through H, 234-29C through H and 234-30 of this article shall apply to nude theatrical performances under this section.
Notwithstanding any other provision of law to the contrary,
and to the maximum extent allowed by the state savings statute, 1
M.R.S.A. § 302, this article when enacted shall be applicable
to any use, application, change of use or related land use or licensing
ordinance applications for any use not lawfully in existence as of
September 22, 2010, when this article first appeared on the City Council
agenda.
