[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:
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 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:
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
Instruments, devices, or paraphernalia which are designed for use in
connection with specified sexual activities.
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.
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:
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;
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;
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;
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;
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.
A nightclub, bar, restaurant, or similar commercial establishment
which regularly features:
Persons who appear in a sate of nudity or seminude;
Live performances which are characterized by the exposure of specified
anatomical areas or by specified sexual activities; or
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.
A hotel, motel or similar commercial establishment which:
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
Offers a sleeping room for rent for a period of time that is less than
10 hours; or
Allows a tenant or occupant of a sleeping room to subrent the room for
a period of time that is less than 10 hours.
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.
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.
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:
The opening or commencement of any sexually oriented business as a new
business;
The conversion of an existing business, whether or not a sexually oriented
business, to any sexually oriented business;
The additions of any sexually oriented business to any other existing
sexually oriented business; or
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.
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:
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 premises at
any one time.
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.
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.
A business or commercial enterprise that as one of its principal
business purposes offers for any form of consideration:
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.
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:
Any of the following:
Fondling or other erotic touching of human genitals, pubic region or
anus.
Sex acts, normal or perverted, actual or simulated, including intercourse,
oral copulation, or sodomy.
Masturbation, actual or simulated.
Human genitals in a state of sexual stimulation, arousal, or tumescence.
Bestiality.
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.
Of a sexually oriented business means and includes any of the following:
The sale, lease, or sublease of the business;
The transfer of securities which constitute a controlling interest in
the business, whether by sale, exchange, or similar means; or
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.
A.
No sexually oriented business may be located or operated
within 500 feet of:
(1)
A church, synagogue, mosque, temple or building which
is used primarily for religious worship and related religious activities;
(2)
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;
(3)
A boundary of a residential district as defined in the
City of Fairfax Zoning Code;
(4)
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;
(5)
A public theater;
(6)
A shopping center; or
(7)
An airport.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
A.
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.
B.
An application for a license must be made on a form provided
by the City.
C.
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.
D.
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.
E.
The completed application for a sexually oriented business
license shall contain the following information and shall be accompanied by
the following documents:
(1)
If the applicant is:
(a)
An individual, the individual shall state his/her legal
name and any aliases and submit proof that he/she is 18 years of age;
(b)
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;
(c)
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.
(d)
The name of the owner of the property where to be located;
if a corporation, then the names of the principal owners of corporation.
(2)
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.
(3)
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.
(4)
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.
(5)
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.
(6)
The location of the proposed sexually oriented business,
including a legal description of the property, street address, and telephone,
if any.
(7)
The applicant's mailing address and residential
address.
(8)
The applicant's driver's license number, social
security number, and/or his/her state or federal issued tax identification
number.
(9)
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.
(10)
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.
(11)
Copy of lease and all financing documents; all business
related contracts for supply of materials and consulting management.
A.
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:
(1)
An applicant is under 18 years of age.
(2)
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.
(3)
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.
(4)
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.
(5)
An applicant or a person with whom the applicant is residing
has been convicted of a specified criminal activity defined in this chapter.
(6)
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.
(7)
The license fee required by this chapter has not been
paid.
(8)
An applicant of the proposed establishment is in violation
of or is not in compliance with any of the provisions of this chapter.
B.
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.
C.
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.
D.
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.
E.
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.
F.
All license applications and fees shall be submitted
to the City Clerk-Treasurer of the City.
A.
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.
B.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
A.
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:
B.
The City shall revoke a license if a cause of suspension
occurs and the license has been suspended within the preceding 12 months.
C.
The City shall revoke a license if it determines that:
(1)
A licensee gave false or misleading information in the
material submitted during the application process;
(2)
A licensee has knowingly allowed possession, use or sale
of controlled substances on the premises;
(3)
A licensee has knowingly allowed prostitution on the
premises.
(4)
A licensee knowingly operated the sexually oriented business
during a period of time when the licensee's license was suspended;
(5)
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
(6)
A licensee is delinquent in payment to the City, county
or state for any taxes or fees past due.
D.
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.
E.
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.
