[HISTORY: Adopted by the City Council of the City of Papillion 10-5-1999
by Ord. No. 1308. Amendments noted where applicable.]
NEBRASKA STATUTE REFERENCES
Neb. R.R.S. §§ 16-206, 16-223, 16-228, 16-246 and 16-254.
GENERAL REFERENCES
Zoning — See Ch. 205.
A.
It is the purpose of this chapter to regulate sexually
oriented businesses 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 continued concentration 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 of any communicative
materials, including sexually oriented materials. Similarly, it is not 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.
B.
It is the intent of the City Council that the locational regulations of § 126-13 of this chapter are promulgated pursuant to 16-206, 16-223[1], 16-228, 16-246 and 16-254 of the Nebraska Revised Statutes as
they apply to nude model studios and sexual encounter centers only.
[1]
Editor's Note: Section 16-223 of the Revised Statutes was repealed
Laws 1991, LB 356, § 36.
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
or slug-operated or electronically, electrically or mechanically controlled
still or motion-picture machines, projectors 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 business
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, videocassettes or video reproductions, slides or other
visual representations which depict or describe specified sexual activities
or specified anatomical areas; or
Instruments, devices or paraphernalia which are designed for use in
connection with specified sexual activities.
A night club, bar, restaurant or similar commercial establishment
which regularly features:
Persons who appear in a state of nudity; or
Live performances which are characterized by the exposure of specified
anatomical areas or by specified sexual activities; or
Films, motion pictures, videocassettes, 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,
videocassettes, slides or other photographic reproductions which are characterized
by the depiction or description of "specified sexual activities" or "specified
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, videocassettes, 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 live performances
which are characterized by the exposure of "specified anatomical areas" or
by "specified sexual activities."
The Chief of Police of the City of Papillion or its designated agent.
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:
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 in a state of nudity or displays
"specific anatomical areas" is provided to be observed, sketched, drawn, painted,
sculptured, photographed or similarly depicted by other persons who pay money
or any form of consideration.
To cause to function or to put or keep in operation. A person may
be found to be operating or causing to be operated a sexually oriented business
whether or not that person is an owner, part owner or licensee of the business.
An individual, proprietorship, partnership, corporation, association
or other legal entity.
A single-family, duplex, multiple-family or "mobile home park, mobile
home subdivision, and campground" use as defined in the Papillion Land Development
Ordinance No. 1200.
[1]A single-family, duplex, townhouse, multiple-family or mobile home
zoning district as defined in the Papillion Land Development Ordinance No.
1200.
[2]A state of dress in which clothing covers no more than the genitals,
pubic region and areola of the female breast, as well as portions of the body
covered by supporting straps or devices.
A business or commercial enterprise that, as one of its primary business
purposes, offers for any form of consideration:
An adult arcade, adult bookstore or adult video store, adult cabaret,
adult motel, adult motion-picture theater, adult theater, escort agency, nude
model studio or sexual encounter center.
Human genitals in a state of sexual arousal.
Includes any of the following:
Of a sexually oriented business means the increase in floor area
occupied by the business by more than 25% as the floor area exists.
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 are classified as they exist on the effective
date of this chapter as follows:
A.
A person commits an offense if he operates a sexually
oriented business without a valid license, issued by the city for the particular
type of business.
B.
An application for a license must be made on a form provided by the Chief of Police. The application must be accompanied by 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 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. Applicants who must comply with § 126-19 of this chapter shall submit a diagram meeting the requirements of § 126-19.
C.
The applicant must be qualified according to the provisions
of this chapter.
D.
If a person who wishes to operate a sexually oriented business is an individual, he 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 § 125-5, and each applicant shall be considered as a licensee if a license is granted.
E.
The fact that a person possesses a valid theater license,
dance hall license or public house or amusement license does not exempt him
from the requirement of obtaining a sexually oriented business license. A
person who operates a sexually oriented business and possesses a theater license,
public house of amusement license or dance hall license shall comply with
the requirements and provisions of this chapter as well as the requirements
and provisions of applicable city ordinances and state statutes.
A.
The City Council shall approve the issuance of a license
to an applicant within 30 days after receipt of an application unless the
Chief of Police finds or Council determines one or more of the following to
be true:
(1)
An applicant is under 19 years of age.
(2)
An applicant or an applicant's spouse is overdue in payment
to the city of taxes, fees, fines or penalties assessed against or imposed
upon the applicant or the applicant's spouse in relation to a sexually oriented
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 an applicant's spouse has been convicted
of a violation of a provision of this chapter, other than the offense of operating
a sexually oriented business without a license, within two years immediately
preceding the application. The fact that a conviction is being appealed shall
have no effect.
(5)
The license fee required by this chapter has not been
paid.
(6)
An applicant has been employed in a sexually oriented
business in a managerial capacity within the preceding 12 months and has demonstrated
an inability to operate or manage a sexually oriented business premises in
a peaceful and law-abiding manner, thus necessitating action by law enforcement
officers.
(8)
An applicant or an applicant's spouse has been convicted
of a crime:
(a)
Involving:
[1]
Any of the following offenses as described in Neb. R.R.S.
1943, § 28-801 et seq.:
[3]
Sexual assault or aggravated sexual assault as described
in Nebraska state statutes.
[4]
Incest, solicitation of a child or harboring a runaway
child as described in Nebraska state statutes.
[5]
Criminal attempt, conspiracy or solicitation to commit
any of the foregoing offenses.
(b)
For which;
[1]
Less than two years have elapsed since the date of conviction
or the date of release from confinement imposed for the conviction if the
conviction is of a misdemeanor offense;
[2]
Less than five years have elapsed since the date of conviction
or the date of release from confinement for the conviction, whichever is the
later date, if the conviction is of a felony offense; or
[3]
Less than five years have elapsed since the date of the
last conviction or the date of release from confinement for the last conviction,
whichever is the later date, if the convictions are of two or more misdemeanor
offenses or combination of misdemeanor offenses occurring within any twenty-four-month
period.
B.
The fact that a conviction is being appealed has no effect on the disqualification of the applicant or applicant's spouse under Subsection A.
D.
The Chief of Police, upon approving issuance of a sexually
oriented business license, shall send to the applicant, by certified mail,
return receipt requested, written notice of that action and state where the
applicant must pay the license fee and obtain the license. The Chief of Police's
approval of the issuance of a license does not authorize the applicant to
operate a sexually oriented business until the applicant has paid all fees
required by this chapter and obtained possession of the license.
E.
The license, if granted, must state on its face the name
of the person or persons to whom it is granted, the expiration date and the
address of the sexually oriented business. The license must be posted in a
conspicuous place at or near the entrance to the sexually oriented business
so that it may be easily read at any time.
F.
In the event that the Police Department cannot conduct
a thorough and reasonable investigation of the applicant(s) within 30 days
after receipt of an application, the time in which said application shall
be considered by the City Council shall be extended until a reasonable and
thorough background investigation has been completed.
G.
The applicant, or its representatives, shall appear before
the City Council at the time scheduled for consideration of the application
by the City Council.
A.
The annual fee for a sexually oriented business license
is $1,500.
B.
In addition to the fees required by Subsection A, an applicant for an initial sexually oriented business license shall, at the time of making application, pay a nonrefundable fee of $250 per applicant for the city to conduct a survey to ensure that the proposed sexually oriented business is in compliance with the locational restrictions set forth in § 126-13.
C.
If an applicant is required by this code to also obtain
a dance hall license for the business at a single location, payment of the
fee for the sexually oriented business license exempts the applicant from
payment of the fees for the dance hall license.
A.
An applicant or licensee shall permit representatives
of the Police Department, the Department of Environmental and Health Services,
the Fire Department, the Department of Streets, Sanitation and Code Enforcement
Services and the Building Official to inspect the premises of a sexually oriented
business, for the purpose of ensuring 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 an offense if he refuses to permit a lawful
inspection of the premises by a representative of the Police Department at
any time it is occupied or open for business.
C.
The provisions of this section do not apply to areas
of an adult motel which are currently being rented by a customer for use as
a permanent or temporary habitation.
Each license expires one year from the date of issuance, except that a license issued pursuant to a locational restriction expires on the date the exemption expires. A license may be renewed only by making application as provided in § 125-4. Application for renewal should be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the license will not be affected by the pendency of the application.
A.
The City Council shall suspend a license for a period
not to exceed 30 days if it determines that a licensee or an employee of the
licensee has:
(2)
Engaged in excessive use of alcoholic beverages while
on the sexually oriented business premises.
(3)
Refused to allow an inspection of the sexually oriented
business premises as authorized by this chapter.
(4)
Knowingly permitted gambling by any person on the sexually
oriented business premises.
(5)
Demonstrated inability to operate or manage a sexually
oriented business in a peaceful and law-abiding manner, thus necessitating
action by law enforcement officers.
B.
The termination by the City Council as to the existence
or noncompliance with the above matters shall be made in an open City Council
session after having given the applicant or license holder or its representatives
15 days' written notice of said hearing, and at said hearing the license holder
or its representatives may present oral or written evidence in support of
the continuance of its license and may confront and question any witnesses
or evidence in opposition to the continuation of its license.
A.
The City Council shall revoke a license if a cause of suspension in § 126-9 occurs and the license has been suspended within the preceding 12 months.
B.
The City Council shall revoke a license if the Chief
of Police or City Council determines that:
(1)
A licensee gave false or misleading information in the
material submitted to the Chief of Police during the application process.
(2)
A licensee or employee has knowingly allowed possession,
use or sale of controlled substances on the premises.
(3)
A licensee or an employee has knowingly allowed prostitution
on the premises.
(4)
A licensee or an employee knowingly operates the sexually
oriented business during a period of time when the licensee's license was
suspended.
(5)
A licensee has been convicted of an offense listed in § 126-5A(8)(a) for which the time period required in § 126-5A(8)(b) has not elapsed.
(6)
On two or more occasions within a twelve-month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in § 126-5A(8)(a) for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed.
(7)
A licensee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or sexual contact to occur in or on the licensed premises. The licensee shall not be issued a sexual oriented business license for one year from the date revocation became effective. If, subsequent to revocation, the Chief of Police 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 of revocation became effective. If the license was revoked under Subsection B(5), an applicant may not be granted another license until the appropriate number of years required under § 126-5A(8)(a) has elapsed.
(8)
The termination by the City Council as to the existence
or noncompliance with the above matters shall be made in an open City Council
session after having given the applicant or license holder or its representatives
15 days' written notice of said hearing, and at said hearing the license holder
or its representatives may present oral or written evidence in support of
the continuance of its license and may confront and question any witnesses
or evidence in opposition to the continuation of its license.
If the City Council denies the issuance of a license, or suspends or
revokes a license, the City Clerk shall send to the applicant, or licensee,
by certified mail, return receipt requested, written notice of the action
and the right to an appeal. Upon receipt of written notice of the denial,
suspension or revocation, the licensee whose application for a license has
been denied or whose license has been suspended or revoked shall have the
right to appeal to the City Board of Adjustment. An appeal to the Board of
Adjustment must be filed within 30 days after the receipt of notice of the
decision of the Chief of Police. The licensee shall bear the burden of proof
in said appeal.
A licensee shall not transfer his 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.
A.
A person commits an offense if he operates or causes
to be operated a sexually oriented business within 2,500 feet of:
B.
A person commits an offense if he causes or permits the
operation, establishment, substantial enlargement or transfer of ownership
or control of a sexually oriented business within 2,500 feet of another sexually
oriented business.
C.
A person commits an offense if he causes or permits 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.
D.
For the purposes of Subsection A, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church, public or private elementary or secondary school, or hospital or to the nearest boundary of an affected public park, residential district, historic district or residential lot.
E.
For purposes of Subsection B of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
F.
Any sexually oriented business lawfully operating on the effective date of this chapter that is in violation of Subsections A, B or C of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed three years, unless sooner terminated for any reason or voluntarily discontinued for a period of 30 days or more. Such conforming 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 2,500 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 nonconforming.
G.
A sexually oriented business fully operating as a conforming
use is not rendered a nonconforming use by the location, subsequent to the
grant or renewal of the sexually oriented business license, of a church, public
or private elementary or secondary school, public park, residential district,
historic district, residential lot or hospital within 2,500 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 has been revoked.
A.
If the Chief of Police denies the issuance of a license to an applicant because the location of the sexually oriented business establishment is in violation of § 126-13 of this chapter, then the applicant may, not later than 10 calendar days after receiving notice of the denial, file with the City Clerk a written request for an exemption from the locational restrictions of § 126-13.
B.
If the written request is filed with the City Clerk within the ten-day limit, a Permit and License Appeal Board, selected in accordance with § 126-11 of this Code, shall consider the request. The City Clerk shall set a date for the hearing within 60 days from the date the written request is received.
C.
A hearing by the Board may proceed if at least three
of the Board members are present. The Board shall hear and consider evidence
offered by any interested person. The formal rules of evidence do not apply.
D.
The Permit and License Appeal Board may, in its discretion, grant an exemption from the locational restrictions of § 126-13 if it makes the following findings:
(1)
That the location of the proposed sexually oriented business
will not have a detrimental effect on nearby properties or be contrary to
the public safety or welfare;
(2)
That the granting of the exemption will not violate the
spirit and intent of this chapter of the City Code;
(3)
That the location of the proposed sexually oriented business
will not downgrade the property values or quality of life in the adjacent
areas or encourage the development of urban blight;
(4)
That the location of an additional sexually oriented
business in the area will not be contrary to any program of neighborhood conservation
nor will it interfere with any efforts of urban renewal or restoration; and
(5)
That all other applicable provisions of this chapter
will be observed.
E.
The Board shall grant or deny the exemption by a majority
vote. Failure to reach a majority vote shall result in denial of the exemption.
Disputes of fact shall be decided on the basis of a preponderance of the evidence.
The decision of the Permit and License Appeal Board is final.
F.
If the Board grants the exemption, the exemption is valid for one year from the date of the Board's action. Upon the expiration of an exemption, the sexually oriented business is in violation of the location restrictions of § 126-13 until the applicant applies for and receives another exemption.
G.
If the Board denies the exemption, the applicant may
not reapply for an exemption until at least 12 months have elapsed since the
date of the Board's action.
A.
A nude model studio shall not employ any person under
the age of 19 years.
B.
A person under the age of 18 years commits an offense
if he appears in a state of nudity in or on the premises of a nude model studio.
It is a defense to prosecution under this subsection if the person under 19
years was in a restroom not open to public view or persons of the opposite
sex.
C.
A person commits an offense if he appears in a state
of nudity or knowingly allows another to appear in a state of nudity in an
area of a nude model studio premises which can be viewed from the public right-of-way.
D.
A nude model studio shall not place or permit a bed,
sofa or mattress in any room on the premises, except that a sofa may be placed
in a reception room open to the public.
A.
The requirements and provisions of this code remain applicable
to adult theaters and adult motion-picture theaters.
B.
A person commits an offense if he knowingly allows a
person under the age of 19 years to appear in a state of nudity in or on the
premises of an adult theater or adult motion-picture theater.
C.
A person under the age of 19 years commits an offense
if he knowingly appears in a state of nudity in or on the premises of an adult
theater of adult motion-picture theater.
A.
Evidence that a sleeping room in a hotel, motel or similar
commercial establishment has been rented and vacated two or more times in
a period of time that is less than 10 hours creates a rebuttable presumption
that the establishment is an adult motel as that term is defined in this chapter.
B.
A person commits an offense if, as the person in control
of a sleeping room in a hotel, motel or similar commercial establishment that
does not have a sexually oriented business license, he rents or subrents a
sleeping room to a person and, within 10 hours from the time the room is rented,
he rents or subrents the same sleeping room again.
A.
A person who operates or causes to be operated a sexually
oriented business, other than an adult motel, which exhibits on the premises
in a viewing room of less than 150 square feet of floor space, a film, videocassette
or other video reproduction which depicts specified sexual activities or specified
anatomical areas, shall comply with the following requirements:
(1)
Upon application for a sexually oriented business license,
the application shall be accompanied by a diagram of the premises showing
a plan thereof specifying the location of one or more manager's stations and
the location of all overhead lighting fixtures and designating any portion
of the premises in which patrons will not be permitted. A manager's station
may not exceed 32 square feet of floor area. The diagram shall also designate
the place at which the permit will be conspicuously posted, if granted. A
professionally prepared diagram in the nature of an engineer's or architect's
blueprint shall not be required; however, each diagram should be oriented
to the north or to some designated street or object and should be drawn to
a designated scale or with marked dimensions sufficient to show the various
internal dimensions of all areas of the interior of the premises to an accuracy
of plus or minus six inches. The Chief of Police may waive the foregoing diagram
for renewal applications if the applicant adopts a diagram that was previously
submitted and certifies that the configuration of the premises has not been
altered since it was prepared.
(2)
The application shall be sworn to be true and correct
by the applicant.
(3)
No alteration in the configuration or location of a manager's
station may be made without the prior approval of the Chief of Police or his
designee.
(4)
It is the duty of the owners and operator of the premises
to ensure that at least one employee is on duty and situated in each manager's
station at all times that any patron is present inside the premises.
(5)
The interior of the premises shall be configured in such
a manner that there is an unobstructed view from a manager's station of every
area of the premises to which any patron is permitted access for any purposes,
excluding restrooms. Restrooms may not contain video reproduction equipment.
If the premises has two or more manager's stations designated, then the interior
of the premises shall be configured in such a manner that there is an unobstructed
view of each area of the premises to which any patron is permitted access
for any purpose from at least one of the manager's stations. The view require
in this subsection must be by direct line of sight from the manager's station.
(6)
It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises, to ensure that the view area specified in Subsection A(5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times that any patron is present in the premises and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection A(1) of this section.
(7)
The premises shall be equipped with overhead lighting
fixtures of sufficient intensity to illuminate every place to which patrons
are permitted access at an illumination of not less than 1.0 footcandle, as
measured at the floor level.
(8)
It shall be the duty of the owners and operator, and
it shall also be the duty of any agents and employees present in the premises,
to ensure that the illumination described above is maintained at all times
that any patron is present in the premises.
A.
A person commits an offense if, in a business establishment
open to persons under the age of 17 years, he displays a book, pamphlet, newspaper,
magazine, film or videocassette, the cover of which depicts, in a manner calculated
to arouse sexual lust or passion for commercial gain or to exploit sexual
lust or perversion for commercial gain, any of the following:
(1)
Human sexual intercourse, masturbation or sodomy;
(2)
Fondling or other erotic touching of human genitals,
pubic region, buttocks or female breasts;
(3)
Less than completely and opaquely covered human genitals,
buttocks or that portion of the female breast below the top of the areola;
or
(4)
Human male genitals in a discernibly turgid state, whether
covered or uncovered.
B.
In this section, "display" means to locate an item in
such a manner that, without obtaining assistance from an employee of the business
establishment:
Any person who violates any of the prohibitions or provisions of any
article or section of this chapter and ordinance shall be deemed guilty of
a misdemeanor. Unless otherwise specified in the particular article or section
for which the person stands convicted of violating, the penalty for such violation
shall be a fine in any sum not exceeding $500 or imprisonment for a term not
to exceed six months, or both said fine and imprisonment at the discretion
of the sentencing court.
A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of § 126-13 of this chapter is subject to a suit for injunction as well as prosecution for criminal violations.
