[Ord. No. 1034, 1-26-2016]
(a)
It is the purpose of this article to regulate alcohol beverage licensed
premises in relation to adult entertainment establishments in order
to promote the health, safety, and general welfare of the citizens
of the City of Williston, and to establish reasonable and uniform
regulations to prevent the deleterious secondary effects and concentrations
of adult entertainment establishments within the City of Williston.
The provisions of this article have neither the purpose nor effect
of imposing a limitation or restriction on the content or reasonable
access to any communicative materials, including any sexually oriented
materials. Further, it is neither the intent nor effect of this article
to restrict or deny access by the distributors and exhibitors of sexually
oriented entertainment protected by the First Amendment, or to deny
access by the distributors and exhibitors of sexually oriented entertainment
to their intended market. Neither it is the intent nor effect of this
ordinance to condone or legitimize the distribution of obscene material.
(b)
Whereas, the City of Williston has explicit authority under Section
40-05-01(29) of the North Dakota Century Code to adopt regulations
governing the sale of alcohol beverages within city limits; and
Whereas, the City has general police powers set forth in Chapter
40-05 of the North Dakota Century Code to act for the good order of
the City of Williston, for its commercial benefit, and for the health,
safety and welfare of the public and may carry its powers out by regulation
or suppression;
Whereas, by adopting this ordinance, the City does not intend
to regulate obscenity, as nudity in and of itself is not obscene;
Whereas, the City declares its intent to address the secondary
effects of live nude dancing, as defined in this chapter, in liquor
licensed premises within City limits; and
Whereas, the liquor licensed establishments featuring live nude
dancing have:
(1)
Caused depreciation in surrounding property values near these
establishments;
(2)
Harmed the economic welfare of communities;
(3)
Negatively affected the quality of life of communities, including
the City of Williston;
(4)
Increased criminal and other offensive activity in other communities
facing these same issues;
(5)
Increased criminal activity in our own community, as evidenced
by the police reports and police call logs that were provided to City
Commission members as they contemplated action on the secondary effects
of nude dancing in liquor-licensed establishments; and
(6)
Disrupted the peace and order of these communities, and our
own community as police resources are diverted a disproportionate
period of time to address recurring issues at these live nude dancing
liquor licensed establishments.
These secondary effects are detrimental to the health, safety,
and welfare of the citizens of the City of Williston.
Whereas, the City recognizes that the First Amendment to the
United States Constitution is applicable to the states through the
14th Amendment of the United States Constitution and further recognizes
that the United States Supreme Court has held that nude dancing is
expressive conduct entitled to limited protection under the First
Amendment of the US Constitution; and
Whereas, the Commission further recognizes that freedom of speech
and expression are amongst our most precious and highly protected
rights and wishes to act consistently with protection of those rights
as they enact these regulations; and
Whereas, however, the Commission is aware, based on the effects
felt in our community and those experienced in other communities,
that liquor licensed establishments featuring live nude dancing may
and do generate secondary effects which the Commission believes are
detrimental to the public health, safety, and welfare; and
Whereas, based on evidence concerning the adverse secondary
effects of adult uses presented in hearings and in studies and local
police reports made available to the board, and on findings incorporated
in the cases of 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, 426 U.S. 50 (1976); FW/PBS, Inc. V. City of
Dallas, 493 U.S. 215 (1990); Barnes v. Glen Theatre, Inc., 501 US.
560 (1991); Thomas v. Chicago Park District, 122 S. Ct. 775 (2002);
California v. LaRue, 409 U.S. 109 (1972); City of Los Angeles v. Alameda
Books, Inc., 535 U.S. 425 (2002); McCrothers Corp. v. Mandan, 2007
ND 28, 728 N.E. 2d 124 (2007); City of Chicago v. Poo Bah Enterprises,
Inc., 865 N.E. 2d 390 (III. 2006) and other cases; and reports of
secondary effects occurring in and around adult entertainment establishments,
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 County, Oklahoma; Cleveland,
Ohio; Dallas, Texas; Tucson, Arizona; St. Croix County, Wisconsin;
Bellevue, Washington; Newport News, Virginia; New York, New York;
Phoenix, Arizona; and from summaries of several of the foregoing secondary
effects report; the board finds:
(1)
Employees of unregulated sexually oriented businesses, especially
live nude dancing establishments, are at risk of engaging in certain
types of illicit and illegal sexual behavior at a higher incidence
than employees of other establishments.
(2)
Sex acts, including masturbation and oral and anal sex, occur
at unregulated sexually oriented businesses, especially those which
provide private or semi-private booths or cubicles for viewing films
or videos or live nude dancing and/or sexually oriented shows.
(3)
Patrons frequent these types of establishments with the purpose
of soliciting and engaging in certain illicit and illegal sexual acts
within the premises of the sexually oriented businesses. These acts
and solicitation often occur over the exchange of money.
(4)
The Office of the Texas Attorney General presented a report
to the Texas Legislature in March 2013 regarding the relationship
between human trafficking and sexually oriented businesses. The increase
in human trafficking in the Bakken region is something state and local
officials are acutely aware of and taking steps to combat.
(5)
Research supports the finding that sexually oriented businesses
that serve alcohol or that are located near liquor-serving businesses
pose "larger and qualitatively different ambient public safety hazards"
than other establishments. The Illinois Supreme Court, after reviewing
available research, found that "Victims become more vulnerable because
of alcohol's debilitating effects, thus creating an attractive situation
for potential offenders." City of Chicago v. Pooh Bah Enterprises,
Inc. et al. (III. 2006). Research found that patrons of sexually oriented
businesses are reluctant to involve or contact law enforcement when
victimized. Testimony of Dr. Richard McCleary, a professor at the
University of California, Irvin, and Professor Lori Sexton to the
Illinois State Senate Public Health Committee in March 2012 in support
of SB 3348. Dr. McCleary is a nationally recognized expert on sexually
oriented businesses. He's been studying secondary effects of sexually
oriented businesses and the sexually oriented business industry since
the 1980s. He and Professor Lori Sexton proffered written testimony
in March 2012 to the Illinois State Legislature discussing the impact
of alcohol, crime, and sexually oriented businesses when the legislature
was contemplating creating a program to offer Grants to combat sexual
assaults and sexual violence.
(6)
Between mid-2013 and June 2015 there were 200 incidents at the
two strip clubs located within City limits that the Williston Police
Department responded to.
a.
The following is a summary of the types of calls and incidents
that the Williston Police Department responded to:
1.
The following criminal violations occurred: murder (2), fights/assaults,
DUI, disorderly conduct, unruly and intoxicated patrons, hit and run
calls, theft of property calls (including stolen vehicles), welfare
checks, traffic violations, junk ordinance violations, minors admitted
to the establishments, minors being served alcohol.
2.
Of the fight/assault calls, almost all involved intoxicated
individuals. For example, in September 2014, there was a fight between
overly intoxicated individuals outside one of the strip clubs. One
individual was pushed and struck his head. The head injury resulted
in permanent brain damage.
3.
A review of the police reports of the incidences at the adult
entertainment venues within City limits shows that over 90% of these
incidences involved alcohol.
b.
A review of the police reports of the incidences at the adult
entertainment venues within City limits shows that over 90% of these
incidences involved alcohol.
(7)
The Office of the Texas Attorney General presented a report
to the Texas Legislature in March 2013 regarding the relationship
between human trafficking and sexually oriented businesses. The increase
in human trafficking in the Bakken region is something state and local
officials are acutely aware of and taking steps to combat.
(8)
A limited study was done by The Freedom and Justice Center for
Prostitution Resources. A program of the Volunteers of America of
Minnesota. The Survey Data was analyzed on the Statistical Program
for Social Sciences. 100% of the women involved in the study reported
incidences of physical abuse in the strip club at which they were
working. 100% of the women involved in the study reported sexual abuse
in the strip club at which they were working. 100% of these incidences
went unreported to law enforcement.
(9)
The City of St. Marys, Georgia published a Digest of Research.
The Evidence of Relationships Between Adult-Oriented Businesses and
Community Crime and Disorder.
(10)
Eric S. McCord and Richard Tewksbury of the Department of Justice
Administration at the University of Louisville, KY published an article
in Crime & Delinquency addressing if sexually oriented businesses
in communities is related to increased levels of crime. Their study
revealed that "sexually oriented businesses are associated with much
higher rates of all types of offenses in the immediate vicinity of
the business and continue to have significant effects on crime levels
as one moves further from the business." Crime & Delinquency 59(7),
1108-25(2012).
(11)
Offering and providing unregulated space encourages unsafe and
unsanitary acts, which create public health issues and possibly even
health code violations.
(12)
The National Health Research and Development Program of Health
Canada published a Final Report on Erotic/Exotic Dancing: HIV-Related
Risk Factors detailing the sexual health issues that exist in live
nude dancing establishments.
(13)
Numerous communicable diseases may be spread by activities occurring
in adult entertainment establishments.
(14)
According to the best scientific evidence, sexually transmitted
diseases and infections are principally transmitted through sexual
acts. Sex acts at adult entertainment establishments is a real concern.
(15)
According to the Kaiser Family Foundation, 1.1 million people
are living with HIV in the US. 76% diagnosed are male and 24% female.
84% of new HIV infections of women occur through heterosexual sex.
The majority of all new infections across all races and genders resulted
from sexual contact. In 2010 there were 47,500 new HIV infections
in the US.
(16)
According to the CDC, there were 1.4 million reported cases
of Chlamydia in the US in 2013.
(17)
There were over 333,000 reported cases of Gonorrhea in the US
in 2013 according to the CDC.
(18)
Sanitary conditions in some adult oriented businesses are unhealthy,
in part, because of the activities conducted there are conducted in
an unhealthy fashion, and, in part, because of the unregulated nature
of the activities and the failure of the owners and operators of the
facilities to self-regulate those activities and maintain their facilities.
(19)
Numerous studies and reports have shown that semen is found
in the areas of adult entertainment establishments where persons view
adult oriented films and live nude shows, like the live nude shows
that take place at the adult establishments in Williston; and
Whereas, the Commission finds that the consumption of alcoholic
beverages exacerbates these negative secondary effects; and
Whereas, the Commission desires to minimize, prevent and control
these negative secondary effects and thereby protect the health, safety,
and welfare of its citizens; and
Whereas, the Commission is also aware that Courts in North Dakota
and in the United States Eighth Circuit Court of Appeals have found
that there is no constitutionally protected right to consume or sell
alcohol while watching or offering live nude dancing; and
Whereas, the Commission has received and contemplated studies
regarding the secondary effects of nude dancing in communities, judicial
opinions, ordinances from other communities, and City of Williston
police reports and police call logs while determining a course of
action; and
Whereas, the Commission has determined that an ordinance prohibiting
live nude dancing in liquor licensed establishments promotes the substantial
goal of minimizing, preventing, and controlling the negative secondary
effects associated with such activity; and
Whereas, the Commission has also determined that an ordinance
prohibiting live nude dancing in liquor licensed establishments is
the least restrictive means of regulating such negative secondary
effects, staying mindful of not infringing on any more protected speech
than is necessary to achieve its lawful interest in regulating the
adverse secondary effects of live nude dancing that are exacerbated
by the sale and consumption of alcohol in such establishments that
offer live nude dancing.
[- Ord. No. 1034, 1-26-2016]
(a)
Definitions for the purposes of this title:
(1)
ENTERTAINMENT - Means all forms and types of performing or entertaining
for patrons on licensed premises without regard to whether such entertainment
is provided by means of live performances or manually operated or
electronic systems designed for stereophonic playback of prerecorded
signals; provided, however, that entertainment shall not be deemed
to include the use of any television, radio or coin-operated music
machine subject to the restrictions in this section.
(2)
LIVE PERFORMANCES - Means any person who for consideration,
monetary or otherwise, performs in person on a licensed premises as
a singer, musician, dancer, comedian, model, or any other type of
entertainer.
(3)
ADULT CABARET - Means any commercial premises or private club
to which any member of the public or club member is invited or admitted,
and where an entertainer provides live entertainment or activity as
defined in adult entertainment.
(4)
ADULT ENTERTAINMENT - Means:
a.
Any exhibition, performance or dance of any type conducted in
any premises where such exhibition, performance, or dance involves
a person who performs in such clothing or sheds clothing to a point
where the area below the top to the bottom of the areola of a female
breast or any portion of pubic area, anus, buttocks, vulva or genitals
are covered by opaque material, or wearing any device or covering
exposed to view which simulates the appearance of any portion of the
female breast below the top of the areola or any portion of the pubic
region, anus, buttocks, vulva or genital, or human male genitals in
a discernibly turgid state, even if completely and opaquely covered;
and/or
b.
Any exhibition, performance, or dance which includes any of
the following:
1.
The performance of acts, or simulated acts, of sexual intercourse,
masturbation, sodomy, bestiality, oral copulation, flagellation or
any sexual acts which are prohibited by law; and/or
2.
The actual or simulated touching, caressing, or fondling of
the breast, buttock, anus, or genitals; and/or
3.
The actual or simulated display of the pubic hair, anus, vulva,
or genitals or the nipples of the female; and/or
4.
Appearances, entertainment or performances of any type consisting
of or containing any nude performer or topless female dancer; and/or
c.
Any exhibition, performance or dance which is intended to sexually
stimulate any member of the public and which is conducted on a regular
basis or as a substantial part of the premises activity. This includes,
but is not limited to, any such exhibition, performance or dance performed
for, arranged with, or engaged in with fewer than all members of the
public on the premises at that time, which separate consideration
paid, either directly or indirectly, for such performance, exhibition
or dance and which is commonly referred to as table dancing, couch
dancing, taxi dancing, lap dancing, private dancing, or straddle dancing.
(b)
No alcohol beverage licensee under this chapter shall permit adult entertainment or an adult cabaret on the licensee's premises. The licensing procedure for cabarets shall be governed by the provisions of Chapter 9 of the Williston Code of Ordinances.
(c)
No entertainment on an alcoholic beverage licensed premises shall
contain:
(1)
The performance of acts, or simulated acts, of sexual intercourse,
masturbation, sodomy, bestiality, oral copulation, flagellation or
any sexual acts prohibited by law;
(2)
The actual or simulated touching, caressing, or fondling of
the breast, buttocks, anus or genitals;
(3)
The actual or simulated displaying of the pubic hair, anus,
vulva or genitals, or the nipples of a female;
(4)
Appearances, entertainment or performances of any type consisting
of or containing any nude performance or nude dancer, or topless female
dancer.
a.
NUDE PERFORMER or NUDE DANCER - Means any person or performs
or appears in attire such that any portion of the pubic area, anus,
vulva, or genitals is exposed to view or not covered with an opaque
material.
b.
TOPLESS FEMALE PERFORMER or TOPLESS FEMALE DANCER - Means any
female who performs or appears in attire such that any portion of
her breasts below the top of the areola is exposed to view or not
covered with an opaque material.
These restrictions apply to all alcoholic beverage licensed
premises whether or not they have a cabaret license.
(d)
No entertainment on a licensed premises shall be provided by means
of television or video cassettes or digital streaming if the content
of that entertainment depicts the acts prohibited in this section.
(e)
A licensee shall have the duty and responsibility to make available
for inspection by a member of the police department an identification
card, such as a driver's license, containing a photograph and the
age of all entertainers or performers on the licensed premises. The
licensee shall not permit a person to make a live performance on the
licensed premises if the licensee is not able to obtain the required
identification from the performer.
(f)
If any licensee, or any agent, servant or employee shall violate
any provision of this section, the license of such premises may be
revoked for cause in accordance with the procedures established pursuant
to the provisions of this chapter.
[Ord. No. 1034, 1-26-2016]
Section 3-152 and any related licensing and zoning ordinances shall apply to all territory within the corporate limits of the City and, as permitted by state law to such outlying contiguous territory without the corporate limits within which the City may exercise its police and zoning jurisdiction, as defined by law.
[Ord. No. 1034, 1-26-2016]
Any person, firm, or corporation violating the terms of this
article is guilty of a Class B misdemeanor and shall, upon conviction,
be subject to the penalties as described under state law for Class
B misdemeanors.
Such a penalty should be in addition to the authority of the
board to suspend or revoke an alcoholic beverage license pursuant
to the provisions of this chapter.
