[HISTORY: Adopted by the City Commission of the City of Kalamazoo 5-17-2004
by Ord. No. 1772. Amendments noted where applicable.]
GENERAL REFERENCES
Adult regulated uses — See App. A, § 4.2B.
This ordinance creates Chapter 46 of the Kalamazoo City Code and shall be entitled "Regulation of Sexually Oriented Businesses."
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 City, and to establish reasonable and uniform regulations
to prevent the deleterious secondary effects of sexually oriented businesses
within the City. 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 City Commission, several of which
are set forth herein. Additionally, the City Commission 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 Commission relies upon and incorporates the findings
of secondary effects discussed in the following non-exhaustive 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 Commission 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 Commission 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). The Commission
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, September 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 Al (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, February 4, 1999
(child rapist arrested in peep show establishment).
(4)
The Commission 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 — 1995-1998; 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, and from "Sexually Oriented
Businesses: An Insider's View," by David Sherman, presented to the Michigan
House Committee on Ethics and Constitutional Law, January 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 Commission
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 City has a substantial government interest in preventing
and/or abating.
(d)
The information received at the public forum held on March 29,
2004, and at the City Commission meeting of May 3, 2004, confirms that the
secondary effects described above and experienced by other municipal governments
do occur in and around sexually oriented businesses located and existing in
the City of Kalamazoo and the surrounding area. The Commission also finds
that educational and artistic uses of nudity or sexual content also occur
under circumstances which do not result in adverse secondary effects due to
the time, place, or manner of their presentation; and therefore, they require
different or no regulation. Information received at the public forum on March
29, 2004, and the City Commission meeting of May 3, 2004 supported this conclusion.
C.
Subject uses. The following adult regulated uses are
subject to these controls:
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Adult arcade or mini motion-picture theaters
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Adult bookstores, adult novelty stores, or adult video stores
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Adult cabarets
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Adult motels
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Adult motion-picture theaters
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Adult outdoor motion-picture theaters
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Adult model studios
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Adult physical culture businesses
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Adult theaters
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Adult personal service businesses
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A.
ADULT ARCADE or MINI MOTION-PICTURE THEATER
ADULT BOOKSTORE, ADULT NOVELTY STORE, or ADULT VIDEO STORE
(1)
(2)
ADULT BOOTH
(1)
(2)
ADULT CABARET
ADULT MODEL STUDIO
(1)
(2)
(3)
ADULT MOTEL
(1)
(2)
(3)
ADULT MOTION-PICTURE THEATER
ADULT OUTDOOR MOTION-PICTURE THEATER
ADULT PERSONAL SERVICE BUSINESS
ADULT PHYSICAL CULTURE BUSINESS
ADULT REGULATED USE
ADULT THEATER
COMMERCIAL ESTABLISHMENT
DISTINGUISHED OR CHARACTERIZED BY AN EMPHASIS ON
EMPLOYEE
ESTABLISHMENT
NUDITY or STATE OF NUDITY
OPERATOR
REGULARLY
SEMINUDE or STATE OF SEMINUDITY
SPECIFIED ANATOMICAL AREAS
SPECIFIED SEXUAL ACTIVITIES
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 rest room.
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:
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
Where in order to participate in a class a student must enroll at least
three days in advance of the class; and
Where no more than one nude or seminude model is on the premise 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 specified 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 partly 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 sexually activities or specified anatomical areas,"
the films so described are those whose dominant or principal character and
theme are the exhibition or description of specified anatomical areas or specified
sexual activities.
A person who performs any service for any consideration on 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 breastfeeding 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 City
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 rest rooms, 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. Each
day that a violation is permitted to exist or occur shall constitute a separate
offense. Further, any premises, building, dwelling, or other structure in
which an adult regulated use as defined in this chapter which 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 City of Kalamazoo 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.
