[HISTORY: Adopted by the City Council of the City of Fairfax 9-3-2002 by Ord. No. 313. Amendments noted where applicable.]
As used in this chapter, the following terms shall have the meanings indicated:
- ADULT ARCADE
- Any place to which the public is permitted or invited wherein coin-operated, slug-operated, or for any form of consideration, or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, video or laser disc players, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
- A. A commercial establishment which, as one of its principal purposes, offers for sale or rental for any form of consideration any one or more of the following:
- (1) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; or
- (2) Instruments, devices, or paraphernalia which are designed for use in connection with specified sexual activities.
- B. A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing specified sexual activities or specified anatomical areas and still be categorized as adult bookstore, adult novelty store, or adult video store. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an adult bookstore, adult novelty store, or adult video store so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- C. Notwithstanding the foregoing, a commercial establishment which offers for sale or rental any of the items listed in Subsection A(1) above will not be considered to have as one of its principal business purposes the offering for sale or rental for consideration the specified materials which are characterized by the depiction or description of specified sexual activities or specified anatomical areas, provided all of the following conditions are met:
- (1) Total gross revenues from the sale or rental of any of the items listed in Subsection A(1) does not exceed 10% of the commercial establishment's gross revenue;
- (2) Total gross square footage of display space and stock area devoted to the sale or rental of any of the items listed in Subsection A(1) does not exceed 10% of the commercial establishment's total square footage;
- (3) Display of any of the items listed in Subsection A(1) is in a separate room or area restricted only to persons 18 years old or older and is closely monitored by management and/or employees of the commercial establishment to insure that no individual under the age of 18 enters the room or area where the items listed in Subsection A(1) are displayed or stored;
- (4) No electronically, electrically, or mechanically controlled still or motion picture machines, projectors, video or laser disc players, or other image-producing devices are maintained on the premises of the establishment to show images of items listed in Subsection A(1) to any customers or potential customers of the commercial establishment;
- (5) Only employees or management of the commercial establishment who are 18 years old or older are permitted to enter the area where the items listed in Subsection A(1) are stored, processed or displayed for customers or potential customers of the commercial establishment.
- ADULT CABARET
- A nightclub, bar, restaurant, or similar commercial establishment which regularly features:
- A. Persons who appear in a sate of nudity or seminude;
- B. Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
- C. Films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- ADULT MOTEL
- A hotel, motel or similar commercial establishment which:
- A. Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specific anatomical areas, and has a sign visible from the public right-of-way which 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, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
- ADULT THEATER
- A theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or seminude, or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
- A person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
- ESCORT AGENCY
- A person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip, or other consideration.
- Includes any of the following:
- A. The opening or commencement of any sexually oriented business as a new business;
- B. The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
- C. The additions of any sexually oriented business to any other existing sexually oriented business; or
- D. The relocation of any sexually oriented business.
- A person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license.
- NUDE MODEL STUDIO
- Any place where a person who appears seminude, in a state of nudity, or who displays specified anatomical areas and is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration. Nude model studio shall not include a proprietary school licensed by the State of Minnesota 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:
- A. 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
- B. Where in order to participate in a class a student must enroll at least three days in advance of the class; and
- C. Where no more than one nude or seminude model is on the premises at any one time.
- NUDITY or a STATE OF NUDITY
- The showing of the human male or female genitals, pubic area, vulva, anus with less than a fully opaque covering or the showing of the covered male genitals in a discernibly turgid state.
- An individual, proprietorship, partnership, corporation, association, or other legal entity.
- SEMINUDE or in a SEMINUDE CONDITION
- The showing of the female breast below a horizontal line across the top of the areola at its highest point or showing of the male or female buttocks. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit, or other apparel provided the areola is not exposed in whole or in part.
- SEXUAL ENCOUNTER CENTER
- A business or commercial enterprise that as one of its principal business purposes offers for any form of consideration:
- SEXUALLY ORIENTED BUSINESS
- An adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion-picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.
- SPECIFIED CRIMINAL ACTIVITY
- Any of the following offenses: Any unlawful lewd, indecent, or immoral conduct, including specifically, but without limitation, any of the lewd, indecent, or immoral criminal acts specified in any of the following statutes:
- SPECIFIED SEXUAL ACTIVITIES
- Any of the following:
- A. Fondling or other erotic touching of human genitals, pubic region or anus.
- B. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy.
- C. Masturbation, actual or simulated.
- D. Human genitals in a state of sexual stimulation, arousal, or tumescence.
- F. Bestiality.
- SUBSTANTIAL ENLARGEMENT
- Of a sexually oriented business means the increase in floor areas occupied by the business by more than 25%, as the floor areas exist on the date this chapter takes effect.
- TRANSFER OF OWNERSHIP OR CONTROL
- Of a sexually oriented business means and includes any of the following:
- A. The sale, lease, or sublease of the business;
- B. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
- C. The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
Sexually oriented businesses shall be considered conditional uses and may be permitted only within qualifying areas of the M zoning district as set forth by the City of Fairfax Zoning Map, and following an application for a conditional use permit.
No sexually oriented business may be granted a conditional use permit under this section unless it has applied for and received a license pursuant to this chapter. Application for the sexually oriented business license and a conditional use permit may happen concurrently or a conditional use permit may be granted under this section subject to the applicant receiving a license pursuant to this chapter. An applicant for a conditional use permit under this section shall also include a copy of the application for the license pursuant to this chapter with the application under this chapter.
No sexually oriented business may be located or operated within 500 feet of:
A church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities;
A public or private educational facility, including but not limited to child day-care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, and universities; school includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school;
A boundary of a residential district as defined in the City of Fairfax Zoning Code;
A public park or recreational area which has been designated for park or recreational activities, including but not limited to a park playground, nature trails, swimming pools, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, wilderness areas, or other similar public land within the City which is under the control, operation, or management of the City park and recreation authorities;
A public theater;
A shopping center; or
Location near other sexually oriented businesses. The operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business may not occur within 1,000 feet of another sexually oriented business. In addition, there shall not be more than one sexually oriented business within a block front even if said block is greater than 1,000 feet in length.
Multiple uses or enlargement of uses. The operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or portion thereof, or the increase of floor area of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business, is prohibited.
Measurement from certain uses. For the purpose of this section, measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the building or structure used as the part of the premises where as sexually oriented business is conducted, to the nearest property line of the premises of a use listed in this section. Presence of a City, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this section. Such distance shall be measured across property lines, regardless of ownership of the property.
Measurement between sexually oriented businesses. For purposes of Subsection B, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to the intervening structures or objects or political boundaries, from the closest exterior wall of the structure in which each business is located.
Nonconforming use. Any sexually oriented business lawfully operating on September 3, 2002, that is in violation of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue until terminated for any reason or voluntarily discontinued for a period of 30 days or more. Such nonconforming uses shall not be increased, enlarged, extended, or altered except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later established business(es) is/are nonconforming.
A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the conditional use permit under this section, of a use listed in the previous section within 1,000 feet of the sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when an application for a license is submitted after a license has expired or been revoked.
It is unlawful for any person to operate a sexually oriented business without a valid sexually oriented business license issued by the City pursuant to this chapter.
An application for a license must be made on a form provided by the City.
All applicants must be qualified according to the provisions of this chapter. The application may request and the applicant shall provide such information (including fingerprints) as to enable the City to determine whether the applicant meets the qualifications established in this chapter.
If a person who wishes to operate a sexually oriented business is an individual, the person must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a 20% or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under the following section and each applicant shall be considered a licensee if a license is granted.
The completed application for a sexually oriented business license shall contain the following information and shall be accompanied by the following documents:
If the applicant is:
An individual, the individual shall state his/her legal name and any aliases and submit proof that he/she is 18 years of age;
A partnership, the partnership shall state its complete name, and the names of all partners, whether the partnership is general or limited, and a copy of the partnership agreements, if any;
A corporation, the corporation shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of its state of incorporation, the names and capacity of all officers, directors and principal stockholders, and the name of the registered corporate agent and the address of the registered office for service of process.
The name of the owner of the property where to be located; if a corporation, then the names of the principal owners of corporation.
If the applicant intends to operate the sexually oriented business under a name other than that of the applicant; he or she must (a) state the sexually oriented business's fictitious name and (b) submit the required registration documents.
Whether the applicant, or a person residing with the applicant, has been convicted of a specified criminal activity as defined in this chapter, and, if so, the specified criminal activity involved, the date, place, and jurisdiction of each.
Whether the applicant, or a person residing with the applicant, has had a previous license under this chapter or other similar sexually oriented business ordinances from another city or county denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked, as well as the date of the denial, suspension or revocation, and whether the applicant has been a partner in a partnership or an officer, director or principal stockholder of a corporation that is licensed under this chapter whose license has previously been denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked as well as the date of denial, suspension or revocation.
Whether the applicant or a person residing with the applicant holds any other licenses under this chapter or other similar sexually oriented business ordinance from another city or county and if so, the names and locations of such other licensed businesses.
The location of the proposed sexually oriented business, including a legal description of the property, street address, and telephone, if any.
The applicant's mailing address and residential address.
The applicant's driver's license number, social security number, and/or his/her state or federal issued tax identification number.
A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but it must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches.
A straight-line drawing prepared within 30 days prior to application depicting the property lines and the structures containing any existing sexually oriented businesses within 1,000 feet of the property to be licensed; the property lines of any established religious institution/synagogue, school, or public park or recreation area within 500 feet of the property to be licensed. For purposes of this section, a use shall be considered existing or established if it is in existence at the time an application is submitted. The drawing shall be reviewed by the Building Inspector for accuracy. In the event of a dispute between the applicant and the City as to the accuracy of the drawing, the Building Inspector may order the applicant to provide a drawing with the information required under this subsection prepared by a registered land surveyor.
Copy of lease and all financing documents; all business related contracts for supply of materials and consulting management.
Upon the filing of said application for a sexually oriented business license said application shall be referred to the appropriate City departments for an investigation to be made on such information as is contained in the application. The application process shall be completed within 60 days from the date the completed application is filed. After the investigation, the City shall issue a license, unless it is determined by a preponderance of the evidence that one or more of the following findings is true:
An applicant is under 18 years of age.
An applicant or a person with whom applicant is residing is overdue in payment to the City of taxes, fees, fines, or penalties assessed against or imposed upon him/her in relation to any business.
An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form.
An applicant or a person with whom the applicant is residing has been denied a license by the City to operate a sexually oriented business within the preceding 12 months or whose license to operate a sexually oriented business has been revoked within the preceding 12 months.
An applicant or a person with whom the applicant is residing has been convicted of a specified criminal activity defined in this chapter.
The premises to be used for the sexually oriented business have not been approved by the Health Department, Fire Department, and the building official as being in compliance with applicable laws and ordinances.
The license fee required by this chapter has not been paid.
An applicant of the proposed establishment is in violation of or is not in compliance with any of the provisions of this chapter.
The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, the address of the sexually oriented business and the classification for which the license is issued pursuant to § 64-3. All licenses shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that they may be easily read at any time.
The Health Department, Fire Department, and the building official shall complete their certification that the premises is in compliance or not in compliance within 20 days of receipt of the application by the City.
Every application for a sexually oriented business license (whether for a new license or for renewal of an existing license) shall be accompanied by a $1,000 nonrefundable application and investigation fee.
In addition to the application and investigation fee required above, every sexually oriented business that is granted a license (new or renewal) shall pay to the City an annual nonrefundable license fee of $1,000 within 30 days of license issuance or renewal.
All license applications and fees shall be submitted to the City Clerk-Treasurer of the City.
An applicant or licensee shall permit representatives of the Police Department, Health Department, Fire Department, Zoning Department, or other City departments or agencies to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business.
A person who operates a sexually oriented business or his agent or employee commits a violation of this chapter if he refuses to permit such lawful inspection of the premises at any time it is open for business.
Each license shall expire one year from the date of issuance and may be renewed only by making application as provided herein. Application for renewal shall be made at least 30 days before the expiration date.
When the City denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial. If, subsequent to denial, the City finds that the basis for denial of the renewal license has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date denial became final.
All licensed sexually oriented businesses shall comply with the provisions of this chapter, all other applicable City ordinances, and all other applicable federal, state and local laws.
No sexually oriented business shall be maintained or operated in any manner that causes, creates, or allows public viewing of any adult material or any entertainment depicting, describing, or relating to specified sexual activities or specified anatomical areas, from any sidewalk, public or private right-of-way, or any property other than the lot on which the license premises is located. No portion of the exterior of a sexually oriented business shall utilize or contain any flashing lights, search lights, or spotlights, or any other similar lighting systems, or any words, lettering, photographs, silhouettes, drawings or pictorial representations of any manner except to the extent specifically allowed herein. This subsection shall apply to any advertisement, display, promotional material, decoration, or sign; to any performance or show; and to any window, door, or other opening.
All signs for sexually oriented businesses shall be flat wall signs. The maximum allowable sign area shall be one square foot of sign area per foot of lot frontage on a street, but in no event exceeding 32 square feet. The maximum number signs shall be one per lot frontage. Signs otherwise permitted pursuant to this chapter shall contain only (1) the name of the sexually oriented business and/or (2) the specific type of sexually oriented business conducted on the licensed premises. Temporary signage shall not be permitted in connection with any sexually oriented business.
No sexually oriented business, except for an adult motel, may remain open at any time between the hours of 1:00 a.m. and 10:00 a.m. on weekdays and Saturdays, and 1:00 a.m. and 12:00 p.m. on Sundays.
A person commits a violation of this chapter if the person knowingly allows a person under the age of 18 years on the premises of a sexually oriented business.
The City shall suspend a license for a period not to exceed 30 days if it determines that a licensee or an employee of a licensee has:
The City shall revoke a license if a cause of suspension occurs and the license has been suspended within the preceding 12 months.
The City shall revoke a license if it determines that:
A licensee gave false or misleading information in the material submitted during the application process;
A licensee has knowingly allowed possession, use or sale of controlled substances on the premises;
A licensee has knowingly allowed prostitution on the premises.
A licensee knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended;
Except in the case of an adult motel, a licensee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sex act to occur in or on the licensed premises; or
A licensee is delinquent in payment to the City, county or state for any taxes or fees past due.
When the City revokes a license, the revocation shall continue for one year, and the licensee shall not be issued a sexually oriented business license for one year from the date the revocation became effective. If, subsequent to revocation, the City finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective.
After denial of an application, or denial of a renewal of an application, or suspension or revocation of any license, the applicant or licensee may seek prompt judicial review of such administrative action in any court of competent jurisdiction. The administrative action shall be promptly reviewed by the Court.
A licensee shall not transfer his/her license to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the application.
Any person who violates, neglects, refuses to comply with, or assists or participates in any way in the violation of any of the provisions or requirements of this chapter is guilty of a misdemeanor and is subject to a penalty of 90 days in jail and/or a $1,000 fine for each such violation. Each day such violation continues shall constitute a separate offense.