City of Kalamazoo, MI Regulation of Sexually Oriented Businesses

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.

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.

Subject uses. The following adult regulated uses are subject to these controls:

	Adult arcade or mini motion-picture theaters
	Adult bookstores, adult novelty stores, or adult video stores
	Adult cabarets
	Adult motels
	Adult motion-picture theaters
	Adult outdoor motion-picture theaters
	Adult model studios
	Adult physical culture businesses
	Adult theaters
	Adult personal service businesses

None of the foregoing uses shall be interpreted to include any use exempt from the provisions of the Adult Use Zoning Ordinance pursuant to § 1B.9. of that ordinance.[1]

[1]

Editor's Note: See now App. A, Zoning Ordinance, § 4.2B.

§ 46-3 Definitions.

As used in this chapter, the following terms shall have the indicated meanings:

ADULT ARCADE or MINI MOTION-PICTURE THEATER

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).

ADULT BOOKSTORE, ADULT NOVELTY STORE, or ADULT VIDEO STORE

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:

(1)

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;

(2)

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.

ADULT BOOTH

A partitioned area of less than 100 square feet inside an adult regulated use which is:

(1)

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

(2)

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.

ADULT CABARET

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.

ADULT MODEL STUDIO

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 premise at any one time.

ADULT MOTEL

A hotel, motel, or similar commercial establishment which:

(1)

Offers accommodations to the public for any form of consideration; and

(2)

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

(3)

Has a sign visible from the public right-of-way which:

(a)

Advertises the availability of this adult-type of photographic reproductions; or

(b)

Offers a sleeping room for rent for a period of time that is less than 10 hours; or

(c)

Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 10 hours.

ADULT MOTION-PICTURE THEATER

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.

ADULT OUTDOOR MOTION-PICTURE THEATER

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.

ADULT PERSONAL SERVICE BUSINESS

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.

ADULT PHYSICAL CULTURE BUSINESS

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 REGULATED USE

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.

ADULT THEATER

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.

COMMERCIAL ESTABLISHMENT

Any business, location, or place which conducts or allows to be conducted on its premises any activity for commercial gain.

DISTINGUISHED OR CHARACTERIZED BY AN EMPHASIS ON

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.

EMPLOYEE

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.

ESTABLISHMENT

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.

NUDITY or STATE OF NUDITY

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.

OPERATOR

An owner, manager, or other person who exercises control over the premises or operation of an adult regulated use.

REGULARLY

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.

SEMINUDE or STATE OF SEMINUDITY

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.

SPECIFIED ANATOMICAL AREAS

Portions of the human body defined as follows:

(1)

Less than completely and opaquely covered human genitals, pubic region, buttocks, or the nipple and areola of the female breast;

(2)

Human male genitals in a discernible turgid state, even if completely and opaquely covered.

SPECIFIED SEXUAL ACTIVITIES

The explicit act or display of one or more of the following:

(1)

Human genitals in a state of sexual stimulation or arousal;

(2)

Acts of human masturbation, sexual intercourse, or sodomy;

(3)

Fondling or other erotic touching of human genitals, pubic region, buttocks, or female breast.

§ 46-4 Prohibited conduct.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

§ 46-5 Scienter required to prove violation or operator liability.

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.

§ 46-6 Applicability to existing businesses.

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.

§ 46-7 Penalty.

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.

§ 46-8 Construction.

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.