Section
114.01 Sexually oriented business permit; purpose and findings
114.02 Definitions
114.03 Classification of sexually oriented businesses
114.04 License required
114.05 Issuance of license
114.06 Fees
114.07 Inspection
114.08 Expiration of license
114.09 Suspension
114.10 Revocation
114.11 Hearing; denial, revocation, and suspension; appeal
114.12 Transfer of license
114.13 Hours of operation.
114.14 Regulations pertaining to exhibition of sexually explicit films or videos
114.15 Loitering and exterior lighting and monitoring requirements.
114.16 Additional regulations concerning live nudity
114.17 Underage patrons
114.18 Sexual encounter establishments prohibited
114.19 Applicability
114.99 Penalties and enforcement
(A) Purpose. 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 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. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene material.
(B) Findings. Based on evidence of the adverse secondary effects of adult uses in other communities, presented in hearings and in reports made available to the Council, and on findings incorporated in the cases of Pap's AM v. City of Erie, 529 U.S. 277 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), Pleasureland Museum, Inc. v. City of Mishawaka, 288 F.3d 988 (7th Cir. 2002); Schultz v. City of Cumberland, 26 F.Supp.2d 1128 (W.D. Wisc. 1998), aff'd in part, rev'd in part, 228 F.3d 831 (7th Cir. 2000); Berg v. Health & Hospital Corp., 865 F.2d 797 (1989); DiMa Corp. v. Town of Hallie, 185 F.3d 823 (1999); Entertainment Concepts v. Maciejewski, 631 F.2d 497 (1980); Genusa v. City of Peoria, 619 F.2d 1203 (1980); Graff v. City of Chicago, 9 F.3d 1309 (1993); North Avenue Novelties, Inc. v. City of Chicago, 88 F.3d 441 (1996); and other cases; and on reports of secondary effects occurring in and around sexually oriented businesses in other communities including, but not limited to, Phoenix, Arizona (1984); Minneapolis, Minnesota (1980); Houston, Texas (1983); 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); St. Croix County, Wisconsin (1993); Bellevue, Washington (1998); Newport News, Virginia (1996); Tucson, Arizona (1990); St. Paul, Minnesota (1988); Oklahoma City, Oklahoma (1986 and 1992); Beaumont, Texas (1982); New York, New York (1994); Ellicottville, New York (1998); Des Moines, Iowa (1984); Islip, New York (1980); Adams County, Colorado (1987); Manatee County, Florida. (1987); New Hanover County, North Carolina (1989); Las Vegas, Nevada (1978); Cattaraugas County, New York (1998); Cleburne, Texas (1997); Dallas, Texas (1997); El Paso, Texas (1986); New York Times Square study (1994); and also on findings 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 the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota), the Council finds:
(1) Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the unlicenced operators of the establishments.
(2) Certain employees of unregulated sexually oriented businesses defined in this chapter as adult theatres and cabarets engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments.
(3) Sexual acts, including masturbation, and oral and anal sex, occur at unregulated sexually oriented businesses, especially those which provide private or semi-private booths or cubicles for viewing films, videos, or live sex shows.
(4) Offering and providing such unregulated space encourages such activities, which creates unhealthy conditions.
(5) Persons frequent certain adult theatres, adult arcades, and other sexually oriented businesses for the purpose of engaging in sex within the premises of such sexually oriented businesses, or for the purpose of purchasing or selling illicit drugs.
(6) Numerous communicable diseases may be spread by activities occurring in sexually oriented businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis salmonella, campylobacter and shigella infections, chlamydial, myoplasmal and ureoplasmal infections, trichomoniasis and chancroid.
(7) According to research from the Kaiser Family Foundation, an estimated 650,000 to 900,000 Americans are infected with HIV. The number of new HIV infections occurring each year is now about 41,000. Men and women of all races are most likely to be infected by sexual contact.
(8) Relevant statistics revealed that a total of 5,419 AIDS cases had been reported in Indiana as of January 1, 1999. Indiana has required HIV case reporting since July of 1988 and shows 5,561 people currently living with HIV (3,109) or AIDS (2,452) in the state.
(9) The Centers for Disease Control and Prevention estimates that as many as 1 in 3 people with HIV do not know they are infected.
(10) The number of cases of early (less than one year) syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982 and 45,200 through November of 1990.
(11) The number of cases of gonorrhea in the United States reported annually remains at a high level, with over one-half million cases being reported in 1990.
(12) The surgeon general of the United States in his report of October 22, 1986, has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components, and from an infected mother to her newborn.
(13) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts. See, e.g. Findings of U.S. Dept. of Health & Human Services.
(14) Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy, and, in part, because of the unregulated nature of the activities and the failure of the owners and the operators of the facilities to self-regulate those activities and maintain those facilities.
(15) Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view "adult" oriented films.
(16) The findings noted in divisions (1) through (15) above raise substantial governmental concerns.
(17) Sexually oriented businesses have operational characteristics that should be reasonably regulated in order to protect those substantial governmental concerns.
(18) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the sexually oriented businesses. Further, such a licensing procedure will place a heretofore nonexistent incentive on the operators to see that the sexually oriented business is run in a manner consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of the city. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein.
(19) Removal of doors on adult booths and requiring sufficient lighting on premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult theatres.
(20) Requiring licensees of sexually oriented businesses to keep information regarding current employees and certain past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments.
(21) The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually oriented business, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases.
(22) It is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain employees who may engage in the conduct which this chapter is designed to prevent or who are likely to be witnesses to such activity.
(23) The general welfare, health, morals and safety of the citizens of the city will be promoted by the enactment of this chapter.
(Ord. 2002-10, passed 8-17-02)
For purposes of this chapter, the words and phrases defined in the sections hereunder shall have the meanings therein respectively ascribed to them unless a different meaning is clearly indicated by the context.
ADULT ARCADE.
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 regularly 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 their emphasis upon matter exhibiting or describing "specified sexual activities" or specified "anatomical areas."
ADULT BOOKSTORE, ADULT NOVELTY STORE, ADULT VIDEO STORE.
A commercial establishment which has significant or substantial portion of its stock-in trade or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or advertising, or maintains a substantial section of its sales or display space to the 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 exhibition or description of "specified sexual activities" or "specified anatomical areas;"
(2) Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others.
ADULT CABARET.
A nightclub, bar, juice bar, restaurant bottle club, or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features:
(1) Persons who appear semi-nude,
(2) Live performances which are characterized by the exposure of "specified anatomical areas" or "specified sexual activities," or
(3) Films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by their emphasis upon the exhibition or description of "specified sexual activities" or " specified anatomical areas."
ADULT MOTEL.
A motel, hotel, or similar commercial establishment which:
(1) Offers public accommodations, for any form of consideration, and which regularly provides patrons with closedcircuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by their emphasis upon the exhibition or description of "specified sexual activities" or "specified anatomical areas" and which regularly advertises the availability of such material by means of a sign visible from the public right-of-way, or by means of any off premises advertising, including but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television, and
(2) Offers a sleeping room for rent for a period of time less than ten hours.
ADULT MOTION PICTURE THEATER.
A commercial establishment where films, motion pictures, videocassettes, slides, or similar photographic reproductions which are characterized by their emphasis upon the exhibition or description of "specified sexual activities" or "specified anatomical areas" are regularly shown for any form of consideration.
ADULT THEATER.
A theater, concert hall, auditorium, or similar commercial establishment which, for any form of consideration, regularly features persons who appear in state of semi-nudity or live performances which are characterized by their emphasis upon the exposure of "specified anatomical areas" or "specified sexual activities."
CONTROLLING INTEREST.
The power, directly or indirectly, to direct the operation, management or policies of a business or entity, or to vote 20% or more of any class of voting securities of a business. The ownership, control, or power to vote 20% or more of any class of voting securities of a business shall be presumed, subject to rebuttal, to be the power to direct the management, operation or policies of the business.
DISTINGUISHED OR CHARACTERIZED BY AN EMPHASIS UPON.
The dominant or principal theme of the object described by such phrase. For instance, when the phase refers to films "which are distinguished or characterized by an emphasis upon the exhibition or description of specified sexual activities or specified anatomical areas," the films so described are those whose dominant or principal character and theme are the exhibition or description "specified anatomical areas" or "specified sexual activities."
EMPLOY, EMPLOYEE, AND EMPLOYMENT.
These terms describe and pertain to any person who performs any service on the premises of a sexually oriented business, on a full time, part time, or contract basis, whether or not the person is denominated an employee, independent contractor, agent, or otherwise. Employee does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises.
ESTABLISH OR ESTABLISHMENT.
Includes any of the following:
(1) The opening or commencement of any sexually oriented business as a new business;
(2) The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
(3) The addition of any sexually oriented business to any other existing sexually oriented business; or
(4) The relocation of any sexually oriented business.
HEARING OFFICER.
The Mayor of the city or a designee of the Mayor.
LICENSEE.
A person in whose name a license to operate a sexually oriented business has been issued, as well as the individual or individuals listed as an applicant on the application for a sexually oriented business license. In case of an "employee," it shall mean the person in whose name the sexually oriented business employee license has been issued.
NUDITY
or
A STATE OF NUDITY.
The showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple.
OPERATE
or
CAUSE TO BE OPERATED
or
OPERATOR.
OPERATE
or
CAUSE TO OPERATE
shall mean to cause to function or to put or keep in a state of doing business. OPERATOR means any persons on the premises of a sexually oriented business who is authorized to exercise overall operational control of the business or who causes to function or who puts or keeps in operation the business. 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.
PERSON.
An individual, proprietorship, partnership, corporation, association, or other legal entity.
REGULARLY FEATURES
or
REGULARLY SHOWN.
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.
SEMI-NUDE
or
STATE OF SEMI-NUDITY.
A state of dress in which opaque clothing covers no more than the genitals, anus, anal cleft or cleavage, pubic area, vulva, and nipple of the female breast, as well as portions of the body covered by supporting straps or devices.
SEMI-NUDE MODEL STUDIO.
Any place where a person, who regularly appears in a state of semi-nudity is provided for money or any form of consideration to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons. It is a defense to prosecution for any violation of this chapter that a person appearing in a state of nudity or semi-nudity did so in a modeling class operated:
(1) By a college, junior college, or university supported entirely or partly by taxation;
(2) By a private college or university which maintains and operates educational programs in which credited are transferable to college, junior college, or university supported entirely or partly by taxation; or
(3) In a structure:
(a) Which has no sign visible from the exterior of the structure and no other advertising that indicates a semi-nude 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.
SEXUAL ENCOUNTER ESTABLISHMENT.
A business or commercial establishment, that as one of its principle business purposes, offers for any form of consideration, a place where two or more persons may congregate, associate, or consort for the purpose of "specified sexual activities" or when one or more of the persons is semi-nude. A sexual encounter establishment shall not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in medically approved and recognized sexual therapy.
SEXUALLY ORIENTED BUSINESS.
An adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, or adult entertainment out-call service in the form of semi-nude dancing or exhibition, adult motion picture theater, adult theater, semi-nude model studio, or sexual encounter establishment.
SEXUALLY ORIENTED ENTERTAINMENT ACTIVITY.
The sale, rental, or exhibition for any form of consideration, of books, films, video cassettes, magazines, periodicals, or live performances which are characterized by an emphasis on the exposure or display of "specified sexual activities" or "specified anatomical areas."
SPECIFIED ANATOMICAL AREAS.
Human genitals, anus, cleft of the buttocks, or the female breast.
SPECIFIED SEXUAL ACTIVITY.
Means any of the following:
(1) Sex acts, normal or perverted, including intercourse, oral copulation, masturbation or sodomy; or
(2) Excretory functions as a part of or in connection with any of the activities described in (1) above.
TRANSFER OF OWNERSHIP OR CONTROL.
TRANSFER OF OWNERSHIP OR CONTROL
of a sexually oriented business shall mean any of the following:
(1) The sale, lease, or sublease of the business;
(2) The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
(3) 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.
VIEWING ROOM.
The room, booth, or area where a patron of sexually oriented business would ordinarily be positioned while watching a film, videocassette, or other video reproduction.
(Ord. 2002-10, passed 8-17-02)
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