(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 location and 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 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.
(1) Based on evidence concerning the adverse secondary effects of adult uses in other communities, as presented in hearings and in reports made available to the Council, and based on findings incorporated in the cases of:
(a) Town of Littleton CO v. Z.J. Gifts D-4, L.L.C. (2004), 541 U.S. 774;
(b) Township of Erie v. Pap’s AM. (2000) 529 U.S. 277;
(c) Barnes v. Glen Theatre, Inc. (1991), 501 U.S. 560;
(d) Township of Renton v. Playtime Theatres, Inc. (1986), 475 U.S. 41;
(e) Young v. American Mini Theatres (1976) 426 U.S. 50;
(f) California v. LaRue (1972), 409 U.S. 109;
(g) DLS, Inc. v. Township of Chattanooga (6th Cir. 1997), 107 F. 3d 403;
(h) East Brooks Books, Inc. v. Township of Memphis (6th Cir. 1995), 48 F. 3d 220;
(i) Harris v. Fitchville Township Trustee (N.D. Ohio 2000), 99 F. Supp. 2d 837;
(j) Bamon Corp. v. Township of Dayton (S.D. Ohio 1990), 730 F. Supp 90 affd (6th Cir. 1991) 923 F. 2d 470;
(k) Broadway Books v. Roberts (E.D. Term. 1986), 642 F Supp. 486;
(l) Bright Lights, Inc. v. Township of Newport (E.D. Ky. 1993), 830 F. Supp. 378;
(m) Richland Bookmart v. Nichols (6th Cir. 1998), 137 F. ed 435;
(n) Deja vu v. Metro Government (6th Cir. 1999), 1999 U.S. App. LEXIS 535;
(o) Threesome Entertainment v. Strittmather (N.D. Ohio 1998), 4 F Suppl. 2d 710;
(p) J.L. Spoons, Inc. v. Township of Brunswick (N.D. Ohio 1999), 49 F. Supp. 2d 1032;
(q) Triplett Grille, Inc. v. Township of Akron (6th Cir. 1994), 40 F 3d. 129;
(r) Nightclubs, Inc. v. Township of Paducah (6th Cir. 2000), 202 F 3d. 884;
(s) O’Connorv. Township and County of Denver (10th Cir. 1990), 894F.2d 1210;
(t) Deja vu of Nashville, Inc. et al. v. Metropolitan Government of Nashville and Davidson County (6th Cir. 2001), 2001 U.S. App. LEXIS 26007;
(u) State of Ohio ex rel. Rothal v. Smith (Ohio CP. 2002), Summit CP. No. CV 01094594;
(v) Z.J. Gifts D-2, L.L.C. v. Township of Aurora (10th Cir. 1998), 136 F. 3d. 683;
(w) Connection Distrib. Co. v. Reno (6th Cir. 1998), 154 F. 3d. 281;
(x) Sundance Assocs. v. Reno (10th Cir. 1998), 139 F. 3d 804;
(y) American Library Association v. Reno (D.C. Cir. 1994), 33 F. 3d. 78;
(z) American Target Advertising, Inc. v. Giani (10th Cir. 2000), 199 F 3d. 1241;
(aa) City of Los Angeles v. Alameda Books, Inc. 535 U.S. 425 (2002);
(bb) Pap’s AM. v. City of Erie, 529 U.S. 277 (2000);
(cc) City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986);
(dd) Schultz v. City of Cumberland, 26 F. Supp.2d 1128 (W.D. Wise. 1998) affd in part, rev’d in part, 228 F.3d 831 (7th Cir. 2000);
(ee) Blue Canary v. City of Milwaukee, 270 F.3d 1156 (7th Cir. 2001);
(ff) Matney v. County of Kenosha, 86 F.3d 692 (7th Cir. 1996);
(gg) Berg v. Health & Hospital Corp., 586 F.2d 797 (1989);
(hh) DiMa Corp. v. Town of Hallie, 185 F.3d 823 (1999);
(ii) Graff v. City of Chicago, 9 F.3d 1309 (1993);
(jj) North Avenue Novelties, Inc. v. City of Chicago, 88 F3d. 441 (1996);
(kk) Chulchian v. City of Indianapolis, 633 F.2d 27 (7th Cir. 1980);
(ll) Big Wolfe Discount Video v. Montgomery County, 256 F. Supp. 2d 385 (D. Md. 2003);
(mm) County of Cook v. Renaissance Arcade and Bookstore, 122 111. 2d 123 (1988) (including cases cited therein);
(nn) World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004);
(oo) Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003);
(pp) People ex rel Deters v. Effingham Retail 27 Inc., No. 04-CH-26 (4th Judicial Circuit, Effingham County, 111., June 13, 2005);
(qq) Annex Books, Inc. v. City of Indianapolis, No. 1:03-CV-918, Summary Judgment Order, Aug. 27, 2004 and Order Denying Motion to Alter or Amend, Mar. 31, 2005 (S.D. Ind.);
(rr) Andy’s Lounge et al v. City of Gary, No. 2:01-CV-327, Order Granting Summary Judgment, Mar 31, 2005 (N.D. Ind.);
(ss) LLEH, Inc. v. Wichita County, 289 F3d 358 (5th Cir. 2002); and based upon reports concerning secondary effects occurring in and around sexually oriented businesses, including, but not limited to: Minneapolis, MN (1980), Houston, TX (1983, 1997), Amarillo, TX (1977), Los Angeles, CA (1977), Austin, TX (1986), Oklahoma Township, OK (1986), Dallas, TX (1977, 1997), Bellevue, WA (1998), Tucson, AZ (1990), Beaumont, TX (1982), Ellicottville, NY (1998), Islip, NY (1980), Manatee County, FL (1987), Las Vegas, NV (1978), Cleburne, TX (1997), El Paso, TX (1986), Phoenix, AR (1979, 1984, 1995-98), Indianapolis, IN (1984), Garden Grove, CA (1991), Whittier, CA (1978), Seattle, WA (1989), Cleveland, OH (1977), St. Croix County, WI (1993), Newport News, VA (1996), St. Paul, MN (1988), New York, NY (1994), Des Moines, IA (1984), Adams County, CO (1987), New Hanover County, NC (1989), Cattaraugas County, NY (1998), Dallas, TX (1997), Oklahoma Township, OK (1986 and 1992), Chattanooga, TN (1999-2003), Spokane, WA (2001), St. Cloud, MN (1994), Littleton, CO (2004), Oklahoma City, OK (1986), Greensboro, NC (2003), Amarillo, TX (1977), Kennedale, TX (2005); and
(tt) New York Times Square Study, (1994) Report to ACLJ on the Secondary Impacts of Sex Oriented Businesses (1996); findings from the Report of the Attorney General’s Working Group on the Regulation of Sexually Oriented Businesses (June 6, 1989, State of Minnesota); and in testimony to Congress in 136 Cong. Rec. S. 8987; 135 Cong. Rec. S. 14519; 135 Cong. Rec. S. 5636; 134 Cong. Rec. E. 3750; and also on findings from the paper entitled “Strip Clubs According to Strippers: Exposing Workplace Sexual Violence,” by Kelly Holsopple, Program Director, Freedom and Justice Center for Prostitution Resources, Minneapolis, MN; and from “Sexually Oriented Businesses: An Insider’s View,” by David Sherman, presented to the Michigan House Committee on Ethics and Constitutional Law, Jan. 12, 2000; and from various other police reports, testimony, newspaper reports, and other documentary evidence; and subsequent findings in Sensations, Inc. v. City of Grand Rapids, Michigan Decency Action Council (6th Cir. 2008), 526 F. 3d 291; 729, Inc. v. Kenton County Fiscal Court (6th Cir. 2008), 515 F. 3d 485; and Andy’s Rest. & Lounge, Inc. v. City of Gary (7th Cir. 2006), 466 F. 3d 550.
(2) The Council finds:
(a) 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;
(b) Certain employees of sexually oriented businesses, defined in this chapter as adult theaters and adult cabarets, engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments;
(c) 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 and live sex shows;
(d) Offering and providing such space encourages such activities, which creates unhealthy conditions;
(e) 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;
(f) 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;
(g) Since 1981 and to the present, there has been an increasing cumulative number of reported cases of AIDS (acquired immunodeficiency syndrome) caused by the human immunodeficiency virus (HIV) in the United States: 600 in 1982; 2,200 in 1983; 4,600 in 1984; 8,555 in 1985; and 253,448 through 12-31-1992;
(h) As of February 2012, there have been thousands of reported cases of AIDS in the state;
(i) Since 1981 and to the present, there have been an increasing cumulative number of persons testing positive for the HIV antibody test in the city and the surrounding area;
(j) The number of cases of early (less that one year) syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982, and 45,200 through November, 1990;
(k) The number of cases of gonorrhea in the United States reported annually remains at a high level, with over 1,000,000 cases being reported in 1990;
(l) In his report of 10-22-1986, the Surgeon General of the United States 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;
(m) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts;
(n) 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;
(o) Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view “adult” oriented films;
(p) The findings noted in divisions (B)(2)(a) through (B)(2)(o) above raise substantial governmental concerns;
(q) Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns;
(r) 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 an 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;
(s) Removal of doors on adult booths and requiring sufficient lighting on premises with adult booths advances a substantial government interest in curbing the illegal and unsanitary sexual activity occurring in adult theaters;
(t) 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;
(u) 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 government interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases;
(v) In the prevention of the spread of communicable diseases, it is desirable 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 conduct;
(w) 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;
(x) 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
(y) The general welfare, health, morals and safety of the citizens of the city will be promoted by the enactment of this chapter.
(Ord. 2012-2, passed 4-3-2012)