CHAPTER 8
ADULT ENTERTAINMENT ESTABLISHMENTS
ADULT ENTERTAINMENT ESTABLISHMENTS
SECTION:
4-8-1: Rationale And Findings
4-8-2: Definitions
4-8-3: License Required
4-8-4: Issuance Of License
4-8-5: Fees
4-8-6: Inspection
4-8-7: Expiration And Renewal Of License
4-8-8: Suspension
4-8-9: Revocation
4-8-10: Hearing; License Denial, Suspension, Revocation; Appeal
4-8-11: Transfer Of License
4-8-12: Hours Of Operation
4-8-13: Exhibition Of Sexually Explicit Films On Premises
4-8-14: Loitering; Lighting Requirements
4-8-15: Applicability To Existing Businesses
4-8-16: Conduct Regulations
4-8-17: Scienter Required To Prove Violation Or Business Licensee Liability
4-8-18: Failure Of City To Meet Deadline Not To Risk Applicant/Licensee Rights
4-8-19: Nuisance Declared
4-8-20: Severability
A. Purpose: It is the purpose of this chapter to regulate adult entertainment establishments in order to promote the health, safety, and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of adult entertainment establishments 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 neither 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 And Rationale: Based on evidence of the adverse secondary effects of adult uses presented in hearings and in reports provided to the city council, and on findings, interpretations, and narrowing constructions incorporated in the cases of City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); City of Erie v. Pap's A.M., 529 U.S. 277 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. LaRue, 409 U.S. 109 (1972); N.Y. State Liquor Authority v. Bellanca, 452 U.S. 714 (1981); and Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 2008 WL 2097410 (6th Cir. May 20, 2008); Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996 (9th Cir. 2008); Farkas v. Miller, 151 F.3d 900 (8th Cir. 1998); Jakes, Ltd. v. City of Coates, 284 F.3d 884 (8th Cir. 2002); BZAPS, Inc. v. City of Mankato, 268 F.3d 603 (8th Cir. 2001); SOB, Inc. v. County of Benton, 317 F.3d 856 (8th Cir. 2003); Scope Pictures v. City of Kansas City, 140 F.3d 1201 (8th Cir. 1998); Excalibur Group v. City of Minneapolis, 116 F.3d 1216 (8th Cir. 1997); ILQ Invs. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994); Ambassador Books & Video v. City of Little Rock, 20 F.3d 858 (8th Cir. 1994); Alexander v. Minneapolis, 928 F.2d 278 (8th Cir. 1991); John Doe v. Minneapolis, 898 F.2d 612 (8th Cir. 1990); Thames Enters. v. St. Louis, 851 F.2d 199 (8th Cir. 1988); Heideman v. South Salt Lake City, 348 F.3d 1182 (10th Cir. 2003); United States v. Evans, 272 F.3d 1069 (8th Cir. 2002); United States v. Mueller, 663 F.2d 811 (8th Cir. 1981); United States v. Frederickson, 846 F.2d 517 (8th Cir. 1988); Ctr. for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); North Avenue Novelties, Inc. v. City of Chicago, 88 F.3d 441 (7th Cir. 1996); Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007); Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10th Cir. 1998); H&A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007); Illinois One News, Inc. v. City of Marshall, 477 F.3d 461 (7th Cir. 2007); Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d 860 (11th Cir. 2007); Green v. City of St. Paul, 1999 WL 376099 (8th Cir. 1999); Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson County, 274 F.3d 377 (6th Cir. 2002); Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546 (5th Cir. 2006); G.M. Enterprises, Inc. v. Town of St. Joseph, 350 F.3d 631 (7th Cir. 2003); Richland Bookmart, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998); Spokane Arcade, Inc. v. City of Spokane, 75 F.3d 663 (9th Cir. 1996); MRM, Inc. v. City of Davenport, 290 N.W.2d 338 (Iowa 1980); City of Lincoln v. ABC Books, Inc., 470 N.W.2d 760 (Neb. 1991); Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005); People ex rel. Deters v. Effingham Retail #27, Inc. d/b/a The Lion's Den Adult Superstore, Case No. 04-CH-26, Modified Permanent Injunction Order (Ill. Fourth Judicial Circuit, Effingham County, July 13, 2005); Reliable Consultants, Inc. v. City of Kennedale, No. 4:05-CV-166-A, Findings of Fact and Conclusions of Law (N.D. Tex. May 26, 2005); and based upon reports concerning secondary effects occurring in and around adult entertainment establishments, including, but not limited to, Austin, Texas - 1986; Indianapolis, Indiana - 1984; Garden Grove, California - 1991; Houston, Texas - 1983, 1997; Phoenix, Arizona - 1979, 1995-98; Chattanooga, Tennessee - 1999-2003; Los Angeles, California - 1977; Whittier, California - 1978; Spokane, Washington - 2001; St. Cloud, Minnesota - 1994; Littleton, Colorado - 2004; Oklahoma City, Oklahoma - 1986; Dallas, Texas - 1997; Ft. Worth, Texas - 2004; Kennedale, Texas - 2005; Greensboro, North Carolina - 2003; Amarillo, Texas - 1977; Jackson County, Missouri - 2008; New York, New York Times Square - 1994; and the Report of the Attorney General's working group on the regulation of sexually oriented businesses, (June 6, 1989, State of Minnesota),
the city council finds:
1. Adult entertainment establishments, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, traffic, noise, urban blight, litter, and sexual assault and exploitation.
2. Each of the foregoing negative secondary effects constitutes a harm which the city has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the city's rationale for this chapter, exists independent of any comparative analysis between adult and nonadult businesses. Additionally, the city's interest in regulating adult entertainment establishments extends to preventing future secondary effects of either current or future adult entertainment establishments that may locate in the city. The city finds that the cases and documentation relied on in this chapter are reasonably believed to be relevant to said secondary effects.
The city hereby adopts and incorporates herein its stated findings concerning the secondary effects of adult entertainment establishments and the legislative record documents supporting same. (Ord. 69-08, 10-20-2008)
For purposes of this chapter, the words and phrases defined hereunder shall have the meanings therein respectively ascribed to them unless a different meaning is clearly indicated by the context.
ADULT BOOKSTORE OR ADULT VIDEO STORE: A. A commercial establishment which, as one of its principal business activities, 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, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the display of "specified sexual activities" or "specified anatomical areas"; or "sexual devices" as that term is defined in this section.
B. A "principal business activity" exists where the commercial establishment:
1. Has a substantial portion of its displayed merchandise which consists of said items; or
2. Has a substantial portion of the wholesale value of its displayed merchandise which consists of said items; or
3. Has a substantial portion of the retail value (defined as the price charged to customers) of its displayed merchandise which consists of said items; or
4. Derives a substantial portion of its revenues from the sale or rental, for any form of consideration of said items; or
5. Maintains a substantial portion of its interior business space for the display, sale, and/or rental of said items (aisles and walkways used to access said items shall be included in interior business space maintained for the display, sale, or rental of said items); or
6. Maintains at least five hundred (500) square feet of its interior business space for the display, sale, and/or rental of said items (aisles and walkways used to access said items shall be included in "interior business space" maintained for the display, sale, or rental of said items) and limits access to the premises to adults only; or
7. Offers for sale or rental at least two thousand (2,000) of the foregoing items and limits access to the premises to adults only; or
8. Maintains an "adult arcade", which means 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 (5) or fewer persons per machine at any one time, and where the images so displayed are characterized by their emphasis upon matter exhibiting "specified sexual activities" or "specified anatomical areas".
ADULT CABARET: A nightclub, bar, juice bar, restaurant, bottle club, or similar commercial establishment that regularly features persons who appear seminude. Appearing live in a state of nudity in a sexually oriented business is prohibited per subsection 4-8-16A of this chapter; no business shall avoid classification as an adult cabaret by offering or featuring nudity.
ADULT ENTERTAINMENT ESTABLISHMENT: An "adult bookstore" or "adult video store", an "adult cabaret", an "adult motion picture theater", or a "seminude model studio".
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 display of "specified sexual activities" or "specified anatomical areas" are regularly shown to more than five (5) persons for any form of consideration.
CHARACTERIZED BY: Describing the essential character or quality of an item. As applied in this chapter, no business shall be classified as an adult entertainment establishment by virtue of showing, selling, or renting materials rated NC-17 or R by the Motion Picture Association of America.
CITY: Dubuque, Iowa.
EMPLOY, EMPLOYEE, AND EMPLOYMENT: Describe and pertain to any person who performs any function related to an adult entertainment establishment on the premises of the establishment, 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: Shall mean and include any of the following:
A. The opening or commencement of any adult entertainment establishment as a new business;
B. The conversion of an existing business, whether or not an adult entertainment establishment, to any adult entertainment establishment; or
C. The addition of any adult entertainment establishment to any other existing adult entertainment establishment.
HEARING OFFICER: An attorney, not otherwise employed by the city, who is licensed to practice law in Iowa, and retained to serve as an independent tribunal to conduct hearings under this chapter.
INFLUENTIAL INTEREST: Any of the following: a) the actual power to operate the adult entertainment establishment or control the operation, management or policies of the adult entertainment establishment or legal entity which operates the adult entertainment establishment; b) ownership of a financial interest of thirty percent (30%) or more of a business or of any class of voting securities of a business; or c) holding an office (e.g., president, vice president, secretary, treasurer, managing member, managing director, etc.) in a legal entity which operates the adult entertainment establishment.
LICENSEE: A person in whose name a license to operate an adult entertainment establishment has been issued, as well as the individual or individuals listed as an applicant on the application for an adult entertainment establishment license. In the case of an "employee", it shall mean the person in whose name the adult entertainment establishment 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 and areola.
OPERATOR: Any person on the premises of an adult entertainment establishment who causes the business to function or who puts or keeps in operation the business or who is authorized to manage the business or exercise overall operational control of the business premises. A person may be found to be operating or causing to be operated an adult entertainment establishment whether or not that person is an owner, part owner, or licensee of the business.
PERSON: Individual, proprietorship, partnership, corporation, association, or other legal entity.
PREMISES: The real property upon which the adult entertainment establishment is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the adult entertainment establishment, the grounds, private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control, or supervision of the licensee, as described in the application for an adult entertainment establishment license.
REGULARLY: The consistent and repeated doing of an act on an ongoing basis.
SEMINUDE MODEL STUDIO: A place where persons regularly appear in a state of seminudity for money or any form of consideration in order to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons. This definition does not apply to any place where persons appearing in a state of seminudity did so in a class operated:
A. By a college, junior college, or university supported entirely or partly by taxation;
B. By 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
C. In a structure:
1. Which has no sign visible from the exterior of the structure and no other advertising that indicates a seminude person is available for viewing; and
2. Where, in order to participate in a class, a student must enroll at least three (3) days in advance of the class.
SEMINUDE OR STATE OF SEMINUDITY: The showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or the showing of the male or female buttocks. This definition shall include the lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part.
SEXUAL DEVICE: Any three-dimensional object designed for stimulation of the male or female human genitals, anus, buttocks, female breast, or for sadomasochistic use or abuse of oneself or others and shall include devices commonly known as dildos, vibrators, penis pumps, cock rings, anal beads, butt plugs, nipple clamps, and physical representations of the human genital organs. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy.
SPECIFIED ANATOMICAL AREAS: Means and includes:
A. Less than completely and opaquely covered: human genitals, pubic region; 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 completely and opaquely covered.
SPECIFIED CRIMINAL ACTIVITY: Any of the following specified crimes for which less than five (5) years has elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date:
A. Vice offenses (Iowa Code chapter 725);
B. Obscenity offenses (Iowa Code chapter 728);
C. Assault offenses (Iowa Code chapter 708);
D. Sexual abuse offenses (Iowa Code chapter 709);
E. Money laundering offenses (Iowa Code section 706B.2);
F. Controlled substances offenses (Iowa Code chapter 124, Div. IV);
G. Any attempt, solicitation, or conspiracy to commit one of the foregoing offenses; or
H. Any offense committed in another jurisdiction that, had the predicate act(s) been committed in Iowa, would have constituted any of the foregoing offenses.
SPECIFIED SEXUAL ACTIVITY: Any of the following:
A. Intercourse, oral copulation, masturbation or sodomy; or
B. Excretory functions as a part of or in connection with any of the activities described in subsection A of this definition.
SUBSTANTIAL: At least thirty five percent (35%) of the item(s) so modified.
TRANSFER OF OWNERSHIP OR CONTROL: Of an adult entertainment establishment shall mean any of the following:
A. The sale, lease, or sublease of the business;
B. The transfer of securities which constitute an influential interest in the business, whether by sale, exchange, or similar means; or
C. 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 an adult entertainment establishment would ordinarily be positioned while watching a film, videocassette, digital video disc, or other video reproduction. (Ord. 69-08, 10-20-2008)
A. Business License: It shall be unlawful for any person to operate an adult entertainment establishment in the city without a valid adult entertainment establishment license.
B. Employee License: It shall be unlawful for any person to be an "employee", as defined in section 4-8-2 of this chapter, of an adult entertainment establishment in the city without a valid adult entertainment establishment employee license, except that a person who is a licensee under a valid adult entertainment establishment license shall not be required to also obtain an adult entertainment establishment employee license.
C. Application: An applicant for an adult entertainment establishment license or an adult entertainment establishment employee license shall file in person at the office of the city manager a completed application made on a form provided by the city manager. An adult entertainment establishment may designate an individual with an influential interest in the establishment to file its application for an adult entertainment establishment license in person on behalf of the establishment. The application shall be signed as required by subsection D of this section and shall be notarized. An application shall be considered complete when it contains, for each person required to sign the application, the information and/or items required in this subsection, accompanied by the appropriate licensing fee:
1. The applicant's full legal name and any other names used by the applicant in the preceding five (5) years.
2. Current business address or another mailing address for the applicant.
3. Written proof of age, in the form of a driver's license or a copy of a birth certificate accompanied by a picture identification document issued by a governmental agency.
4. If the application is for an adult entertainment establishment license, the business name, location, legal description, mailing address and phone number of the adult entertainment establishment.
5. If the application is for an adult entertainment establishment license, the name and business address of the statutory agent or other agent authorized to receive service of process.
6. A statement of whether an applicant has been convicted of or has pled guilty or nolo contendere to a "specified criminal activity" as defined in this chapter, and if so, each specified criminal activity involved, including the date, place, and jurisdiction of each as well as the dates of conviction and release from confinement, where applicable.
7. A statement of whether any adult entertainment establishment in which an applicant has had an influential interest, has, in the previous five (5) years (and at a time during which the applicant had the influential interest):
a. Been declared by a court of law to be a nuisance; or
b. Been subject to a court order of closure or padlocking.
8. An application for an adult entertainment establishment license shall be accompanied by a legal description of the property where the business is located and 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 shall 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 (±6"). Applicants who are required to comply with the stage, booth, and/or room configuration requirements of this chapter shall submit a diagram indicating that the setup and configuration of the premises meets the requirements of the applicable regulations.
The information provided pursuant to this subsection shall be supplemented in writing by certified mail, return receipt requested, to the city manager within ten (10) working days of a change of circumstances which would render the information originally submitted false or incomplete.
D. Signature: A person who seeks an adult entertainment establishment employee license under this section shall sign the application for a license. If a person who seeks an adult entertainment establishment license under this section is an individual, he shall sign the application for a license as applicant. If a person who seeks an adult entertainment establishment license is other than an individual, each person with an influential interest in the adult entertainment establishment or in a legal entity that controls the adult entertainment establishment shall sign the application for a license as applicant. Each applicant must be qualified under this chapter and each applicant shall be considered a licensee if a license is granted.
E. Information Confidential: The information provided by an applicant in connection with an application for a license under this chapter shall be maintained by the office of the city manager on a confidential basis, and such information may be disclosed only as may be required, and only to the extent required, by court order. (Ord. 69-08, 10-20-2008)
A. Business License: Upon the filing of a completed application for an adult entertainment establishment license, the city manager shall immediately issue a temporary license to the applicant if the completed application is from a preexisting adult entertainment establishment that is lawfully operating in the city and the completed application, on its face, indicates that the applicant is entitled to an annual adult entertainment establishment license. The temporary license shall expire upon the final decision of the city to deny or grant an annual license. Within twenty (20) days of the filing of a completed adult entertainment establishment license application, the city manager shall either issue a license to the applicant or issue a written notice of intent to deny a license to the applicant. The city manager shall issue a license unless:
1. An applicant is less than eighteen (18) years of age.
2. An applicant has failed to provide information required by this chapter for issuance of a license or has falsely answered a question or request for information on the application form.
3. The license application fee required by this chapter has not been paid.
4. The "adult entertainment establishment", as defined in section 4-8-2 of this chapter is not in compliance with the interior configuration requirements of this chapter or is not in compliance with locational requirements of this chapter or the locational requirements of any other part of the this code.
5. Any adult entertainment establishment in which the applicant has had an influential interest, has, in the previous five (5) years (and at a time during which the applicant had the influential interest):
a. Been declared by a court of law to be a nuisance; or
b. Been subject to an order of closure or padlocking.
6. An applicant has been convicted of or pled guilty or nolo contendere to a "specified criminal activity", as defined in section 4-8-2 of this chapter.
B. Employee License: Upon the filing of a completed application for an adult entertainment establishment employee license, the city manager shall immediately issue a temporary license to the applicant if the applicant seeks licensure to work in a licensed adult entertainment establishment and the completed application, on its face, indicates that the applicant is entitled to an annual adult entertainment establishment employee license. The temporary license shall expire upon the final decision of the city to deny or grant an annual license. Within twenty (20) days of the filing of a completed adult entertainment establishment employee license application, the city manager shall either issue a license to the applicant or issue a written notice of intent to deny a license to the applicant. The city manager shall issue a license unless:
1. The applicant is less than eighteen (18) years of age.
2. The applicant has failed to provide information as required by this chapter for issuance of a license or has falsely answered a question or request for information on the application form.
3. The license application fee required by this chapter has not been paid.
4. Any adult entertainment establishment in which the applicant has had an influential interest, has, in the previous five (5) years (and at a time during which the applicant had the influential interest):
a. Been declared by a court of law to be a nuisance; or
b. Been subject to an order of closure or padlocking.
5. The applicant has been convicted of or pled guilty or nolo contendere to a "specified criminal activity", as defined in section 4-8-2 of this chapter.
C. License Contents; Posting; Kept On Person: The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the number of the license issued to the licensee(s), the expiration date, and, if the license is for an adult entertainment establishment, the address of the adult entertainment establishment. The adult entertainment establishment license shall be posted in a conspicuous place at or near the entrance to the adult entertainment establishment so that it may be read at any time that the business is occupied by patrons or is open to the public. An adult entertainment establishment employee shall keep the employee's license on his or her person or on the premises where the licensee is then working or performing. (Ord. 69-08, 10-20-2008)
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