(A) (1) The purpose and intent of this section is to regulate sexually oriented adult businesses to promote the health, safety, morals and general welfare of the citizens of the City of Columbia Heights and to establish reasonable and uniform regulations to:
(a) Prevent additional criminal activity;
(b) Prevent deterioration of neighborhoods and its consequent adverse effect on real estate values of properties within the neighborhood;
(c) To locate sexually oriented adult businesses away from residential areas, schools and churches;
(d) Prevent concentration of sexually oriented adult businesses within certain areas of the city.
(2) The provisions of this section have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented adult materials. Similarly, it is not the intent or effect of this section to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by distributors and exhibitors of sexually oriented entertainment to their intended market.
(B) (1) No person shall own or operate a sexually oriented business without having a valid license issued by the city.
(2) Massage of any type must comply with § 5.609 of this article.
(3) All sexually oriented adult businesses shall comply with the requirements of the zoning ordinance.
(C) Any of the following activities and businesses described below are sexually oriented adult businesses as defined in this code:
ADULT BODY PAINTING STUDIO. An establishment or business which provides the service of applying paint or other substance whether transparent or nontransparent to or on the body of a patron when such body is wholly or partially nude in terms of specified anatomical areas.
ADULT BOOK AND MEDIA STORE. An establishment having as a substantial portion of its stock in trade or stock in display books, magazines, films, videotape or other media which are characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas.
ADULT CABARET. An establishment which provides dancing or other live entertainment, if such establishment excludes minors by virtue of age or if such dancing or other live entertainment is
distinguished or characterized by an emphasis on the performance, depiction or description of specified sexual activities or specified anatomical areas.
ADULT COMPANIONSHIP ESTABLISHMENT. A companionship establishment which excludes minors by reason of age, or which provides the service of engaging in or listening to conversation, talk or discussion between an employee of the establishment and a customer, if such service is distinguished or characterized by an emphasis on specified sexual activities, or specified anatomical areas.
ADULT ESTABLISHMENT. Any business which offers its patrons services, entertainment or the sale of merchandise characterized by an emphasis on matter depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas.
ADULT ENTERTAINMENT USES. Adult uses include adult bookstores, adult motion picture theaters, adult mini-motion picture theaters, adult steam room/bathhouse/sauna facilities, adult companionship establishments, adult rap/conversation parlors, adult health/sport clubs, adult cabarets, adult novelty businesses, adult motion picture arcades, adult modeling studios, adult hotels/motels, adult body painting studios, and other premises, enterprises, establishments, businesses or places open to some or all members of the public, at or in which there is an emphasis on the presentation, display, depiction or description of specified sexual activities or specified anatomical areas, which are capable of being seen by members of the public. Activities classified as obscene as defined by M.S. § 617.241, as it may be amended from time to time, are not included.
ADULT HOTEL OR MOTEL. Adult hotel or motel means a hotel or motel room which minors are specifically excluded from patronage and wherein material is presented which is distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.
ADULT MINI-MOTION PICTURE THEATER.
(a) An enclosed building with a capacity for less than 50 persons used for presenting motion pictures, including but not limited to film and videotape, having as a dominant theme material distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas.
(b) Any business or building which presents motion pictures, including films and videotapes, having as a dominant theme material distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas, for viewing on the premises, including but not limited to private booths, viewing by means of coin-operated or other mechanical devices and the viewing of excerpts of motion pictures offered for sale or rent.
ADULT MODELING STUDIO. An establishment whose major business is the provision, to customers, of figure models who are so provided with the intent of providing sexual stimulation or sexual gratification to such customers and who engage in specified sexual activities or display specified anatomical areas which being observed, painted, painted upon, sketched, drawn, sculptured, photographed, or otherwise depicted by such customers.
ADULT MOTION PICTURE ARCADE. Any place to which the public is permitted or invited wherein coin or token-operated or electronically, electrically or mechanically controlled or operated still or motor 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 an emphasis on depicting or describing specified sexual activities or specified anatomical areas.
ADULT MOTION PICTURE THEATER. An enclosed building with a capacity of 50 or more persons used regularly and routinely for presenting live entertainment or motion pictures, including but not limited to film and videotape, having as a dominant theme material distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.
ADULT NOVELTY BUSINESS. A business which sells, offers to sell, or displays devices which stimulate human genitals or devices which are designed for sexual stimulation.
ADULT SAUNA. A sauna which excludes minors by reason of age, or which provides a steam bath or heat bathing room used for the purpose of bathing, relaxation, or reducing, utilizing steam or hot air as a cleaning, relaxing or reducing agent, if the service provided by the sauna is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
(D) For purposes of this section, the following words shall have the following meanings ascribed to them:
CHURCH. A building or structure, or group of buildings or structures, which the design and construction are primarily intended for the conducting of organized religious services and associated accessory uses.
SCHOOL. A public school as defined in M.S. § 120.05, as it may be amended from time to time, or a nonpublic school or a nonsectarian nonpublic school as defined in M.S. § 123.932, as it may be amended from time to time.
SPECIFIED ANATOMICAL AREAS. Specified anatomical areas are any of the following:
(a) Less than completely and opaquely covered: human genitals, pubic region, or pubic hair; buttock, and female breast below a point immediately above the top of the areola; and
(b) Human male genitals in a discernibly turgid state, even if opaquely covered.
SPECIFIED SEXUAL ACTIVITIES.
(a) Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of a sexual relationship, or the use of excretory functions in the context of a sexual relationship, and any of the following sexually oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty; or
(b) Clearly depicted human genitals in the state of sexual stimulation, arousal or tumescence; or
(c) Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or
(d) Fondling or touching of nude human genitals, pubic region, buttocks or female breast; or
(e) Situations involving a person or persons, any of whom are nude, clad in undergarments or in sexually revealing costumes, and who are engaged in activities involving the flagellation, torture, fettering, binding or other physical restraint of any such persons; or
(f) Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being; or
(g) Human excretion, urination, menstruation, vaginal or anal irrigation.
(E) Every application for a license under this section shall be verified and filed with the Clerk.
(F) Except as specifically provided in this code, no person may erect, convert, enlarge, reconstruct or alter, or use any land or structure for any purpose nor in any manner which is not in conformity with this section.
(G) No sexually oriented adult business shall engage in any activity or conduct or permit any other person to engage in any activity or conduct in or about the establishment which is prohibited by any ordinance of the City of Columbia Heights, the laws of the State of Minnesota, or the United States of America. Nothing in this section shall be construed as authorizing or permitting conduct which is prohibited or regulated by other statutes or ordinances, including but not limited to statutes or ordinances prohibiting the exhibition, sale or distribution of obscene material generally, or the exhibition, sale, or distribution of specified materials to minors.
(H) All sexually oriented adult businesses which were lawfully in existence as of the effective date of this section and which were rendered nonconforming by the application of this section shall be abated within three years of the date of enactment of this chapter.
(I) (1) No sexually oriented business may be located within 200 feet of any residential zoning district boundary or less than 500 feet from any church or school, or 150 feet from any park.
(2) No sexually oriented business may be located within 400 feet of another sexually oriented business.
(J) No sexually oriented business shall be open to the public between the hours of 11:00 p.m. to 8:00 a.m. of the following day.
(K) (1) The premises on which a sexually oriented business is located shall prevent off-site viewing of its merchandise by completely covering the windows and doors of its operation with an opaque covering.
(2) All entrances to a sexually oriented business, with the exception of emergency fire exits which are not usable by patrons to enter the business, shall be visible from a public right-of-way.
(3) The layout of the display areas of a sexually oriented business shall be designed so that the management of the establishment and any law enforcement personnel can observe all patrons while they have access to any merchandise offered for sale or viewing including but not limited to books, magazines, photographs, videotapes, or any other persons or materials.
(4) The exterior of the premises on which a sexually oriented business is located shall be illuminated in a manner adequate to observe the location, activities, and identity of all persons on the exterior premises.
(5) No premises on which a sexually oriented business is located shall contain partitions between subdivisions of a room, portion or part of a building, structure or premises having an aperture which is designed or constructed to facilitate sexual activity between persons on either side of the partition.
(6) No premises on which a sexually oriented business is located may have booths, stalls, or partitioned portions of a room, or individual rooms, used for the viewing of motion pictures or any other form of entertainment, having doors, curtains or portal partitions, unless its booths, stalls, partitioned portions of a room, or individual rooms so used shall have at least one side open to an adjacent public room so that the area inside is visible to persons in the adjacent public room. Such areas shall be lighted in a manner that the persons in the areas used for viewing motion pictures or any other form of entertainment are visible from the adjacent public room.
(L) No sexually oriented business shall display a sign containing representational depictions of an adult nature or graphic description of an adult theme.
(M) Application process.
(1) Applications for a sexually oriented adult business shall contain information as required on forms supplied by the city. Any license issued under this section is valid only for the licensed premises. The application shall state whether the applicant is a natural person, partnership, corporation or other form of organization.
(a) Full legal name, place and date of birth, street residence address and length of time at that address of the applicant and, if married, also spouse.
(b) Whether applicant has ever used or been known by a name other than his true name and, if so, what was such name or names, and information concerning dates and places where used.
(c) The street addresses at which applicant and present spouse have lived during the preceding ten years.
(d) The name of the business if it is to be conducted under a designation, name or style other than the full individual name of the applicant.
(e) Kind, name and location of every business or occupation applicant has been engaged in during the preceding ten years.
(f) Names and addresses of applicant’s employers and partners, if any, for the preceding ten years.
(g) Whether applicant or spouse has ever been convicted of a felony, gross misdemeanor or misdemeanor, excluding traffic violations, and, if so, the date and place of conviction and the nature of the offense.
(h) The names, residence and business addresses and telephone numbers of three persons of good moral character not related to the applicant or financially interested in the premises or business who may be referred to as to the applicant’s character or, in the case of a manager, the manager’s character. These referrals shall be residents of the Twin City Metropolitan area unless either the applicant or the Columbia Heights Police Department can demonstrate to the Council that it would be preferable to have referrals from persons residing outside of Anoka County.
(i) If the applicant is a partnership, the names and addresses of all partners and all information concerning each partner as is required of a single applicant. A managing partner, or partners, shall be designated. The interest of each partner in the business shall be disclosed.
(j) If the applicant is a corporation or other association, the following additional information shall be required.
1. Name and, if incorporated, the state of incorporation.
2. A true copy of the certificate of incorporation, articles of incorporation or association agreement and by-laws and, if a foreign corporation, a certificate of authority as described in Minnesota Statutes.
3. The name of the operating officer or proprietor or other agent in charge of the premises to be licensed, giving all the information about said person as is required of a single applicant. As used in this section, the term
OPERATING OFFICER shall mean the person responsible for the day- to-day operating decisions of the licensed premises.
4. A list of all persons who, singly or together with their spouse, or a parent, brother, sister or child or either of them, own or control an interest in said corporation or association in excess of 5% or who are officers or directors of said corporation or association; together with their addresses and all information as is required of a single applicant.
(k) The full legal name, address and home phone number of the manager or proprietor of the business.
(l) Each application shall be accompanied by a statement indicating the amount of investment the applicant has in the business, building, premises, fixtures, furniture, stock in trade, and the like, and proof of source of such money.
(m) Whether the applicant holds a current license for the operation of a similar business from any other governmental unit.
(n) Whether the applicant has previously been denied a license from any other governmental agency.
(o) The application must be accompanied by a sketch or diagram showing the configuration of the interior of the premises, including a statement of the total floor space occupied by the business. The sketch or diagram must be a drawing to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. Once a license is granted, no change in the premises may be made without the applicant having first reapplied to the city and demonstrating that the applicant has complied with all of the requirements of this section.
(p) Whenever the application is for a premises either planned or under construction or undergoing substantial alteration, the application shall be accompanied by a set of preliminary plans showing the design of the proposed premises to be licensed. If the plans or design are on file with the City of Columbia Heights Building Inspection Department, no plans need be submitted with the issuing authority.
(q) The exact legal description of the premises to be licensed, together with a plot/site plan of the area for which the license is sought showing dimensions, location of buildings, street access parking facilities. The site plan must also include the location and distances to the nearest church building and school.
(r) Whether or not all real estate and personal property taxes for the premises to be licensed which are due and payable have been paid and if not paid, the years and amounts which are unpaid.
(s) Such other information as the City Council or issuing authority may require relevant to any matters addressed by this chapter.
(2) No person shall make any false statement in the application. In addition to other penalties, the license may be revoked by the City Council for giving false information on the application.
(3) By submitting an application, the applicant consents to any and all investigations the city deems appropriate and waives any claims the applicant may have. Copies of the application shall be submitted to such other city departments as the City Council shall deem necessary for the verification and investigation of the facts set forth in the application. The applicant must be qualified according to the provisions of this chapter and the premises must be inspected and found to be in compliance with the law by the Health Department, Fire Department, and Building Official.
(N) The Clerk shall refer consideration of the issuance of a license by the city to the City Council within 45 days after the receipt of an application unless he finds one or more of the following to be true:
(1) An applicant is under 18 years of age.
(2) An applicant or an applicant’s spouse is overdue in his payment to the city, county or state of taxes, fees, fines, or penalties assessed against him or imposed upon him 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) An applicant is residing with a person who has been denied a license by the city to operate a sexually oriented business within the preceding 12 months, or residing with a person whose license to operate a sexually oriented business has been revoked within the preceding 12 months.
(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; such inspections shall be completed within 30 days from the date the application was submitted, provided that the application contains all of the information required by this section. If the application is deficient, the inspections shall be completed within 30 days from the date the deficiency has been corrected.
(7) The license fee or investigation fee required by this chapter has not been paid.
(8) An applicant has been employed in a sexually oriented business in a managerial capacity within the preceding 12 months and has demonstrated that he is unable to operate or manage a sexually oriented business premises in a peaceful and law abiding manner, thus necessitating action by law enforcement officers.
(9) An applicant or applicant’s spouse has been convicted of a crime involving any of the following offenses:
(a) Any sex crimes as defined by Minnesota Statutes, or as defined by any ordinance or statute in conformity therewith;
(b) Any obscenity crime as defined by Minnesota Statutes, or as defined by any ordinance or statute in conformity therewith, 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, whichever is the later date, if the conviction is of a misdemeanor offense;
2. Less than five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is 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 24-month period.
(10) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or applicant’s spouse.
(11) An applicant who has been convicted or whose spouse has been convicted of an offense listed in subdivision (9) of this division may qualify for a sexually oriented business license only when the time period required by subdivision (9) has elapsed.
(12) For purposes of this section, the requirements imposed on an applicant as a prerequisite to licenses shall apply if any person with an interest in the business or premises as disclosed by division (M) of this section shall fail to qualify for a license.
(O) The City Council shall act to approve or disapprove the license application within 120 days from the date the application was submitted, provided that the application contains all the information required by this section. If the application is deficient, the City Council shall act on the application within 120 days from the date that the deficiency had been corrected.
(P) The license, if granted, shall 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 shall 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.
(Q) (1) Each license shall expire on December 31 of each year and may be renewed only by making an application as provided in this section. Application for renewal must be made at least 60 days before the expiration date of a current license, and when made less than 60 days before the expiration date of the current license, the expiration of the license will not be effected.
(2) 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.
(R) The city may suspend a license for a period not to exceed 30 days if it determines that a licensee or an employee of a licensee has:
(1) Violated or is not in compliance with any provisions of this chapter.
(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.
(6) Any violations of the general provisions of the licensing procedures, §§ 5.102 through 5.104, inclusive.
(S) The city shall revoke a license if it determines that:
(1) A licensee gave false or misleading information in the material submitted to the city during the application process.
(2) A licensee or an employee has knowingly allowed possession, use, or sale of controlled substances on the premises.
(3) A licensee or an employee knowingly allowed prostitution on the premises.
(4) A licensee or an employee knowingly operated 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 division (N)(9) of this section for which the time period required in division (N)(9) of this section has not elapsed.
(6) On two or more occasions within a 12 month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in division (N)(9) of this section 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 or masturbation to occur in or on the licensed premises.
(8) A licensee is delinquent in payment to the county or state for hotel occupancy taxes, ad valorem taxes, or sales taxes related to the sexually oriented business.
(9) A licensee has committed an act for which the city may suspend the license pursuant to division (R) of this section and that the license has been suspended within the preceding 12 months.
(10) The fact that a conviction is being appealed shall have no effect on the revocation of the license.
(11) Subdivision (7) of this division does not apply to adult motels as a ground for revoking the license unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in a public place or within public view.
(12) 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 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. If the license was revoked under subdivision (5), the applicant may not be granted another license until the appropriated number of years required under division (N)(9) has elapsed.
(T) A licensee shall not transfer this 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.
(U) Every section, provision or part of this section or any license issued pursuant to this section is declared severable from every other section, provision or part thereof to the extent that if any section, provision or part of this section or any license issued pursuant to this section shall be held invalid by a court of competent jurisdiction it shall not invalidate any other section, provision or part hereof.
(V) (1) No person shall provide false information or misrepresent any fact or information under division (M) of this section.
(2) No person, including a licensee, owner, operator or employee, shall allow a minor to be on the licensed premises of a sexually oriented business unless the minor is accompanied by the minor’s current legal guardian.
(3) No person, including the licensee, owner, operator or employee, shall enter a sexually oriented business open to the public if the premises on which the sexually oriented business is located is in violation of this section.
(4) No person, including the licensee, owner, operator or employee, shall deny access to any building or housing official of the city or any employee of the Police Department, Health Department or Fire Department to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law at any time that the premises are occupied or open for business.
(`77 Code, § 5.613) (Am. Ord. 1215, passed 11-13-90; Am. Ord. 1377, passed 10-12-98) Penalty, see § 5.701