Harford County, MD Adult Entertainment

[HISTORY: Adopted by the Harford County Council by Bill No. 92-27.[1] Amendments noted where applicable.]

GENERAL REFERENCES

Massage establishments — See Ch. 166.

[1]

Editor's Note: This bill also repealed former Ch. 58, Adult Entertainment, adopted by Bill No. 78-70.

Article I General Provisions

§ 58-1 Definitions.

For the purposes of this chapter, the following terms have the meanings indicated.

ADULT BOOKSTORE

A commercial establishment that as its principal business purpose sells or rents:

Books, magazines, periodicals, other printed matter, photographs, films, motion pictures, video cassettes, video reproductions, slides, or other visual representations that describe or depict a sexual act or depict human genitalia in a state of sexual arousal; or

Instruments, devices, or paraphernalia designed for use in connection with sexual acts.

ADULT THEATER

A room or an area:

Located in an adult bookstore;

Capable of accommodating 6 or more individuals; and

In which are shown films, motion pictures, video cassettes, or other moving pictures that depict a sexual act or human genitalia in a state of sexual arousal.

APPLICANT

A person who applies under this chapter for a license to operate an adult bookstore.

BOOKSTORE

An adult bookstore.

CORPORATION

A corporation organized under the laws of the United States, Maryland, another state of the United States, or a territory, possession, or district of the United States.

DEPARTMENT

The Department of Inspections, Licenses and Permits.

LICENSE

A license issued under this chapter to operate an adult bookstore.

LICENSEE

A person licensed under this chapter to operate an adult bookstore.

OBSCENE PERFORMANCE, EXHIBITION, DRAMA, PLAY, SHOW, DANCING EXHIBITION, TABLEAU OR ENTERTAINMENT

One which the average person, applying contemporary community standards, would find, taken as whole, appeals to the prurient interest and which, taken as a whole, lacks serious literary, artistic, political, or scientific value and where, in a patently offensive way, it conveys to the observer sexual conduct:

As specifically defined in any statute of Maryland proscribing obscenity or obscene performances; or

As specifically defined as follows, whether actual or simulated:

(1)

Sexual or anal intercourse:

Masturbation;

Fellatio;

Cunnilingus;

Sadomasochistic abuse;

(6)

Fondling of the buttocks, anus, breasts, or genitalia of oneself or another;

(7)

Sexual stimulation by means of contact with animals or inanimate objects;

(8)

Urination; or

(9)

Defecation.

SADOMASOCHISTIC ABUSE

Flagellation or torture by or upon an individual who is nude or clad in undergarments or other revealing clothing, or the condition of one who is nude or so clothed and is fettered, bound, or otherwise physically restrained.

SEXUAL ACT

Means:

Sexual or anal intercourse;

Masturbation;

Fellatio;

Cunnilingus;

Sadomasochistic abuse;

Fondling of the buttocks, anus, breasts, or genitalia of oneself or another; or

Sexual stimulation by means of contact with another, an animal, or an inanimate object.

SIMULATED

The representation of an activity by mimicry, gesture or bodily movement in a manner that would clearly and unmistakably convey to an average adult that such activity is intended to be represented thereby.

SUBSTANTIALLY ENLARGE

To increase the floor area of an adult bookstore by more than 25% of the floor area of the bookstore as it existed on January 1, 1992.

VIEWING BOOTH

A partitioned area capable of accommodating 5 or fewer individuals and in which is located a coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machine, projector, or other image-producing device that depicts a sexual act or human genitalia in a state of sexual arousal.

Article II Adult Bookstores

§ 58-2 License required.

A person shall not operate an adult bookstore without a license from the Department.

An applicant for a license shall:

(1)

If an individual, be at least 18 years of age;

(2)

Possess a valid Maryland trader's license;

(3)

Submit to the Department an application on the form that the Department provides; and

(4)

Submit with the application:

(a)

The appropriate completed Maryland State Police form authorizing a criminal background check of the applicant;

(b)

The appropriate fees for the criminal background check;

(c)

A site plan showing that the location of the adult bookstore complies with § 58-9 of this Article;

(d)

The state retail sales tax identification number issued to the applicant;

(e)

A copy of the Maryland trader's license issued to the applicant; and

(f)

A nonrefundable license and application fee of $200.

The application shall be made under oath and shall include the following information:

(1)

The name, date of birth, home address, and telephone number of the applicant;

(2)

The address and telephone number of the adult bookstore;

(3)

A diagram of the adult bookstore's interior drawn at the scale required by the Department, including the location of any manager's station and the overhead lighting required by § 58-8 of this Article;

(4)

A list of all employees who will work in the bookstore and the address and date of birth of each employee;

(5)

If the applicant is a corporation:

(a)

A copy of the corporation's articles of incorporation;

(b)

A copy of the corporation's bylaws; and

(c)

A list of the name and address of each person who owns 10% or more of the corporation;

(6)

If the applicant is not a corporation or an individual, the name and home address of each person with an interest of 10% or more in the applicant; and

(7)

A statement of whether the applicant, the applicant's spouse, an employee who will work in the bookstore, any individual with whom the applicant resides, or any person who owns an interest of 10% or more in the applicant has pleaded guilty or nolo contendere with respect to, received probation before judgment with respect to, or been convicted of an offense listed in § 58-6A(8) of this Article, and if so the location, date, and nature of the plea, probation, or conviction.

An application shall be under oath and signed by each applicant.

If an applicant is not an individual, each individual who owns an interest of 10% or more in the applicant is considered an applicant and shall:

(1)

Provide the information required by this section; and

(2)

Sign the application.

Regardless of the number of individuals required to sign a single license application under Subsection E of this section, only 1 state sales tax identification number and 1 Maryland trader's license are required for a license issued under this Article.

§ 58-3 Inspections; issuance of license.

[Amended by Bill No. 94-8]

Within 7 calendar days after receiving an application for a license to operate an adult bookstore, the Department shall:

(1)

Request that the Health Department inspect the bookstore to ensure that it is in compliance with all applicable county and state health laws; and

(2)

Refer the application to any other agency from which the Department requests information concerning the application.

Within 30 calendar days after receiving the Department's request:

(1)

The Health Department shall inspect the bookstore and notify the Department of whether the bookstore is in compliance with the applicable health laws; and

(2)

Any other agency to which the application was referred shall furnish the information the Department requested.

Within 45 calendar days after receiving an application for a license to operate an adult bookstore, the Department shall notify the applicant of whether it qualifies for a license.

If an applicant qualifies for a license under this Article, the Department shall issue a license to the applicant.

A person who operates an adult bookstore without a license may continue to operate the bookstore without a license only if:

(1)

The bookstore was in operation on July 10, 1992:

(2)

The bookstore has continued in operation since that time; and

(3)

The person applies on or before October 1, 1994, for a license under this chapter.

A person permitted to continue to operate an adult bookstore under Subsection E of this section may continue to operate the bookstore while the department processes the person's license application.

§ 58-4 Term and renewal.

A license expires on the first anniversary of its effective date, unless the license is renewed for a 1-year term as provided in this section.

Before a license expires, the licensee periodically may renew it for an additional 1-year term, if the licensee:

(1)

Otherwise is entitled to the license;

(2)

Pays to the Department a renewal fee of $200; and

(3)

Submits to the Department:

(a)

A renewal application on the form that the Department provides;

(b)

The appropriate completed Maryland State Police form authorizing a criminal background check of the licensee: and

(c)

The appropriate fee for the criminal background check.

Within 45 calendar days after receiving a renewal application from a licensee, the Department shall notify the licensee of whether it qualifies for renewal of the license.

The Department shall renew the license of each licensee who meets the requirements of this section.

§ 58-5 Transfer of license.

A licensee shall not transfer the license to another person.

A license is valid only for the location for which it is issued.

§ 58-6 Denials, suspensions, and revocations of licenses.

The Department may deny a license to any applicant or suspend or revoke a license if:

(1)

The applicant or licensee does not pay a fee required by this Article;

(2)

The premises of the adult bookstore fail an inspection required by § 58-3 of this Article;

(3)

The applicant, licensee, or an employee of the applicant or licensee refuses to allow an inspection of the adult bookstore by an employee or designated representative of the Department, the Health Department, or a law enforcement agency with jurisdiction in the county;

(4)

The applicant or licensee fraudulently or deceptively obtains or attempts to obtain a license for the applicant or licensee or for another;

(5)

The applicant or licensee fraudulently or deceptively uses a license;

(6)

The applicant or licensee pleads guilty or nolo contendere with respect to, receives probation before judgment with respect to, or is convicted of a violation of:

(a)

This Article, other than operating an adult bookstore without a license; or

(b)

Any state law listed in Subsection A(8) of this section.

(7)

In the 2 years before the denial, suspension, or revocation, the applicant, the licensee, the applicant's or licensee's spouse, or an individual with whom the applicant or licensee resides pleaded guilty or nolo contendere with respect to, received probation before judgment with respect to, or was convicted of a violation of:

(a)

This Article, other than operating an adult bookstore without a license; or

(b)

Any state law listed in Subsection A(8) of this section; or

(8)

The applicant or licensee pleads guilty or nolo contendere with respect to, receives probation before judgment with respect to, or is convicted of a violation of any of the following sections of Article 27 of the Annotated Code of Maryland:

(a)

§ 1 (abduction of individual under 16);

(b)

§ 2 (abduction of child under 12);

(c)

§ 15 (bawdy houses and houses of ill fame; prostitution, etc.);

(d)

§ 23 (offering bribe to public officer, etc.);

(e)

§ 26 (embracery, etc.);

(f)

§ 27 (intimidating or corrupting jurors, etc.; obstructing justice);

(g)

§ 35A (child abuse);

(h)

§ 335 (incest);

(i)

§ 335A (indecent exposure);

(j)

§ 416B (selling or offering to sell certain visual representations, printed matter or sound recordings to minors);

(k)

§ 416C (exhibition of certain motion pictures or presentations to minors);

(l)

§ 416D (displaying certain visual representations for advertising purposes);

(m)

§ 416E (permitting minor to enter or remain on certain premises;

(n)

§ 418 (sending or bringing obscene material into the state for sale or distribution; publishing, etc., within state);

(o)

§ 419 (sale or display of certain items to persons under 18);

(p)

§ 419A (child pornography);

(q)

§ 426 (pandering generally);

(r)

§ 427 (placing, etc. person for immoral purposes);

(s)

§ 428 (receiving money, etc., for procuring person for house of prostitution, etc.);

(t)

§ 429 (placing, etc., of spouse in house of prostitution, etc.);

(u)

§ 430 (receiving earnings of prostitute);

(v)

§ 431 (detaining person in house of prostitution for debt);

(w)

§ 432 (transporting person for prostitution);

(x)

§ 462 (first degree rape);

(y)

§ 463 (second degree rape);

(z)

§ 464 (first degree sexual offense);

(aa)

§ 464A (second degree sexual offense);

(bb)

§ 464B (third degree sexual offense);

(cc)

§ 464C (fourth degree sexual offense);

(dd)

§ 467A (transfer of recorded sound without consent of owner of master device);

(ee)

§ 553 (sodomy); or

(ff)

§ 554 (unnatural or perverted practices).

In addition to the authority granted by Subsection A of this section, the Department may suspend or revoke a license if:

(1)

A licensee or an employee of the bookstore has knowingly allowed on the premises the possession, use, or sale of a controlled dangerous substance listed in Article 27, § 279 of the Annotated Code of Maryland:

(2)

A licensee or an employee of the bookstore has knowingly allowed prostitution on the premises;

(3)

A licensee or an employee of the bookstore has knowingly allowed a sexual act on the premises;

(4)

A licensee or an employee of the licensee has knowingly operated the adult bookstore when the license was suspended; or

(5)

In the preceding year 2 or more employees of the bookstore have pleaded guilty or nolo contendere with respect to, received probation before judgment with respect to, or been convicted of a violation of any state law listed in Subsection A(8) of this section.

§ 58-7 Operating requirements.

The operator of an adult bookstore shall:

(1)

Require proof of an individual's age before allowing the individual to enter the bookstore;

(2)

Arrange the bookstore's interior so that employees can observe all areas of the bookstore that are open to customers or the public;

(3)

Arrange the bookstore's merchandise so that:

(a)

No merchandise depicting a sexual act or human genitalia in a state of sexual arousal is visible from outside of the bookstore; and

(b)

No merchandise designed for use in connection with a sexual act is visible from outside of the bookstore; (4) Ensure that the bookstore's parking lot is equipped with lighting of sufficient intensity to light the lot at an illumination of at least 2 footcandles and is posted with signs that prohibit loitering;

(4)

Regularly check the parking lot to try to keep customers and members of the public from loitering or committing sexual acts there;

(5)

Permit inspection of the bookstore and its premises by an employee or designated representative of the Department, the Health Department, and any law enforcement agency with jurisdiction in the county at any time the bookstore is occupied or open for business; and

(6)

Within 30 calendar days after each new employee begins working in the bookstore, send written notification of the employee's name, address, and date of birth to the Department.

The operator of an adult bookstore shall not:

(1)

Allow an individual under the age of 18 to enter the bookstore;

(2)

Knowingly allow an individual to commit a sexual act in the bookstore or the bookstore's parking lot; or

(3)

Employ an individual who has in the preceding 2 years pleaded guilty or nolo contendere with respect to, received probation before judgment with respect to, or been convicted of a violation of:

(a)

This Article, other than operating an adult bookstore without a license; or

(b)

Any state law listed in § 58-6A(8) of this Article.

§ 58-8 Additional requirements for certain bookstores.

A person who owns or operates an adult bookstore that includes a viewing booth or an adult theater:

(1)

Shall maintain at least 1 manager's station in the bookstore;

(2)

Shall not alter the location or configuration of a manager's station without the approval of the Department;

(3)

Shall ensure that at least one employee is on duty at each manager's station when a customer is in the bookstore;

(4)

Shall arrange the bookstore's interior so that each area of the bookstore open to customers, except the restrooms, is visible from at least one manager's station;

(5)

Shall ensure that the bookstore is equipped with overhead lighting of sufficient intensity to light each area of the bookstore in which customers are permitted at an illumination of at least 5 footcandles, measured at floor level;

(6)

Shall ensure that the lighting is on when a customer is in the bookstore;

(7)

Shall not equip a viewing booth with a curtain, door, or any other device that allows the booth's interior to be screened from the view of employees; and

(8)

Shall ensure that each viewing booth is separated from others by a solid wall or other solid partition.

§ 58-9 Location of adult bookstores.

A person shall not operate an adult bookstore within 1,000 feet of:

(1)

A house of worship;

(2)

A public or private elementary or secondary school;

(3)

A public park;

(4)

A child care home, child care institution, or family day care home licensed or registered under Maryland law; or

(5)

A lot devoted to residential use.

A person shall not operate or substantially enlarge an adult bookstore located within 1,000 feet of another adult bookstore.

For the purposes of this section distance shall be measured in a straight line, without regard to intervening objects, from the closest part of the building in which the adult bookstore is housed to the nearest property line of the house of worship, school, park, child care home, child care institution, family day care home, residential lot, or other adult bookstore.

If the operator of an adult bookstore has a license from the Department to operate the bookstore, the operator is not placed in violation of this section by the subsequent location of a house of worship, school, park, child care home, child care institution, family day care home, or residential lot within 1,000 feet of the bookstore.

Subsections A and B of this section do not apply to an adult bookstore that:

(1)

Was in operation on January 31, 1992; and

(2)

Continues in operation at the same location after January 31, 1992, regardless of whether ownership of the bookstore is transferred after that date.

§ 58-10 Appeal of license denial, suspension, or revocation.

If the Department denies an application for a license or suspends or revokes a license, the applicant or licensee may appeal the Department's decision to the Circuit Court for Harford County.

§ 58-11 Injunction.

The County Attorney may sue to enjoin a person from:

(1)

Operating an adult bookstore without a license;

(2)

Operating an adult bookstore with a suspended license;

(3)

Operating an adult bookstore after a license has been revoked; or

(4)

Committing any other violation of this Article.

Before the County Attorney files suit under this section, the Department shall notify the person who operates the adult bookstore that the person is in violation of this Article.

The notice required by this section shall be in writing and may be sent by certified mail or delivered in person.

§ 58-12 Obscene public performance.

Any person who as actor, dancer, owner, manager, producer, director or agent or in any other capacity prepares, gives, directs, presents, performs or participates in any obscene performance, exhibition, drama, play, show, dancing exhibition, tableau or entertainment in which live persons perform or participate in an obscene manner in the presence of any other person or persons who have paid a consideration of any type whatsoever to observe the exhibition or performance and every owner, lessee or manager of any theater, garden, building, room, place or structure who knowingly permits the same to be used for the purpose of any such exhibition as enumerated in this section or who assents to its use for any such purpose shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined or imprisoned as provided hereafter.

§ 58-13 Penalties for violation.

A person who violates any provision of this Article is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 6 months or both. Each day a violation continues is a separate offense.