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Covington, KY Code of Ordinances
COVINGTON, KENTUCKY CODE OF ORDINANCES
ADOPTING ORDINANCE
TITLE I: GENERAL PROVISIONS
TITLE III: ADMINISTRATION
TITLE IV: FINANCIAL REGULATIONS
TITLE V: PUBLIC WORKS
TITLE VII: TRAFFIC CODE
TITLE IX: GENERAL REGULATIONS
TITLE XI: BUSINESS REGULATIONS
TITLE XIII: GENERAL OFFENSES
TITLE XV: LAND USAGE
TABLE OF SPECIAL ORDINANCES
PARALLEL REFERENCES
CHAPTER 120: SEXUALLY-ORIENTED BUSINESSES
Section
   120.01   Purpose; findings
   120.02   Definitions
   120.03   Classification
   120.04   License required
   120.05   Issuance of license
   120.06   Fees
   120.07   Inspection
   120.08   Expiration of license
   120.09   Suspension
   120.10   Revocation
   120.11   Appeals of denial, suspension or revocation
   120.12   Transfer of license
   120.13   Adult motels; additional regulations
   120.14   Exhibition of sexually explicit films, videos or live entertainment in viewing rooms; regulations
   120.15   Nude model studios; additional regulations
   120.16   Public nudity; additional regulations
   120.17   Children prohibited
   120.18   Hours of operation
   120.19   Exemptions
   120.20   Injunction
 
   120.99   Penalty
§ 120.01 PURPOSE; FINDINGS.
   (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 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 no 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 concerning the adverse secondary effects of adult uses on the community presented in hearing and in reports made available to the City Commission, and on findings incorporated in the cases of 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), and on studies in other communities including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and also on findings from the Report of the Attorney General’s Working Group On the Regulation of Sexually-oriented Businesses, (6-6-1989, State of Minnesota), the Commission finds:
      (1)   Sexually-oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the operators of the establishments. Further, there is presently no mechanism to make the owners of these establishments responsible for the activities that occur on their premises;
      (2)   Certain employees of sexually-oriented businesses defined in § 120.02 of this chapter as adult theaters 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 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 space encourages such activities, which creates unhealthy conditions;
      (5)   Persons frequent certain adult theaters, adult arcades and other sexually-oriented businesses for the purpose of engaging in sex within the premises of such sexually-oriented businesses;
      (6)   At least 50 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 B, Non A, Non B amebiasis, salmonella infections and shigella infections;
      (7)   According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts;
      (8)   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;
      (9)   Numerous studies and reports have determined that semen is found in the areas of sexually-oriented businesses where persons view “adult” oriented films;
      (10)   The findings noted in divisions (B)(1) through (B)(9) above raise substantial governmental concerns;
      (11)   Sexually-oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns;
      (12)   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 non- existent incentive on the operators to see that the sexually operated 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;
      (13)   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 theaters;
      (14)   Clear view of the sexually-oriented business’s premises public area advances a substantial government interest in curbing the illegal and unsanitary sexual activity occurring in sexually- oriented businesses, excluding adult motels;
      (15)   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;
      (16)   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;
      (17)   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;
      (18)   The fact that an applicant for an adult use license has been convicted of a sexually-related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this chapter;
      (19)   The barring of such individuals from the management of adult uses for a period of years serves as a deterrent to and prevents conduct which leads to the transmission of sexually-transmitted diseases; and
      (20)   The general welfare, health, morals and safety of the citizens of the city will be promoted by the enactment of this chapter.
(1984 Code, § 111.600) (Ord. O-17-99, passed 5-25-1999)
§ 120.02 DEFINITIONS.
   For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
   ADULT ARCADE. Any place to which the public is permitted or invited wherein coin-operated, slug-operated or for any form of consideration, 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.
   ADULT BOOKSTORE, ADULT NOVELTY STORE or ADULT VIDEO STORE.
      (1)   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:
         (a)   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
         (b)   Instruments, devices or parapher- nalia which are designed for use in connection with specified sexual activities.
      (2)   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.
   ADULT CABARET. A nightclub, bar, restaurant or similar commercial establishment which regularly features:
      (1)   Persons who appear in a state of nudity or semi-nude; or
      (2)   Live performances that are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
      (3)   Films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
   ADULT MOTEL. A hotel, motel or similar commercial establishment which:
      (1)   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 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;
      (2)   Offers a sleeping room for rent for a period of time that is less than ten hours; or
      (3)   Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten hours.
   ADULT MOTION PICTURE THEATER. A commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas. Regularly shown films, motion pictures, video cassettes, slides or other similar photographic reproductions as characterized herein do not include sexually-oriented speech and expressions that take place inside the context of some larger form of expression.
   ADULT THEATER. A theater, concert hall, auditorium or similar commercial establishment which regularly features persons who appear in a state of nudity or semi-nude, or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities. Regularly featured appearances and performances by persons who appear and perform as characterized herein do not include appearances and performances which include sexually-oriented speech and expression that takes place inside the context of some larger form of expression.
   EMPLOYEE. A 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 and whether or not said person is paid a salary, wage or other compensation by the operator of said business. EMPLOYEE does not include a person exclusively on the premises for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises.
   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 business;
      (3)   The additions of any sexually-oriented business to any other existing sexually-oriented business; or
      (4)   The relocation of any sexually-oriented business.
   LICENSEE. 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; and in the case of an employee, a person in whose name a license has been issued authorizing employment in a sexually-oriented business.
   NUDE MODEL STUDIO. Any place where a person who appears semi-nude, 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 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:
      (1)   That has no sign visible from the exterior of the structure and no other advertising that indicates a nude or semi-nude person is available for viewing;
      (2)   Where, in order to participate in a class, a student must enroll at least three days in advance of the class; and
      (3)   Where no more than one nude or semi- nude model is on the premises at any one time.
   NUDITY or 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, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state.
   PERSON. An individual, proprietorship, partnership, corporation, association or other legal entity.
   PUBLIC AREA. The portion of a sexually- oriented business, excluding adult motels, that is accessible to the customer, excluding restrooms, while the business is open for business.
   SEMI-NUDE or in a SEMI-NUDE CONDITION. The showing of the female breast below a horizontal line across the top of the areola at its highest point or the showing of the male or female buttocks. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit or other apparel; provided, the areola is not exposed in whole or in part.
   SEXUAL ENCOUNTER CENTER. A business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration:
      (1)   Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
      (2)   Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or semi- nude.
   SEXUALLY-ORIENTED BUSINESS. An adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio or sexual encounter center.
   SPECIFIED ANATOMICAL AREAS.
      (1)   The human male genitals in a discernibly turgid state, even if completely and opaquely covered; or
      (2)   Less than completely and opaquely covered human genitals, pubic region, buttocks or a female breast below a point immediately above the top of the areola.
   SPECIFIED CRIMINAL ACTIVITY. Any of the following offenses:
      (1)   Prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution or display of harmful material to a minor; sexual performance by a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; engaging in organized criminal activity; sexual assault; molestation of a child; gambling; or distribution of a controlled substance; or any similar offenses to those described above under the criminal or penal code of other states or countries;
      (2)   For which:
         (a)   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;
         (b)   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
         (c)   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 offense occurring within any 24-month period.
      (3)   The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or a person residing with the applicant.
   SPECIFIED SEXUAL ACTIVITIES. Any of the following:
      (1)   The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts;
      (2)   Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, masturbation or sodomy; or
      (3)   Excretory functions as part of or in connection with any of the activities set forth in divisions (1) and (2) of this definition.
   TRANSFER OF OWNERSHIP OR CONTROL. Includes 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.
(1984 Code, § 111.601) (Ord. O-17-99, passed 5-25-1999; Ord. O-30-99, passed 8-3-1999; Ord. O-33-02, passed 7-16-2002; Ord. O-2-05, passed 1-25-2005)
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