Section
114.01 Purpose and intent
114.02 Definitions
114.03 Exemptions
114.04 Unlawful acts
114.05 License fees
114.06 Inspection
114.07 License required; application; investigation; expiration
114.08 Manager’s license required; change
114.09 Interior lighting
114.10 Adult cabarets and theaters
114.11 Conduct
114.12 Employee tips
114.13 Peep booths
114.14 Hours of operation
114.15 Minimum age
114.99 Penalty
(A) The purpose and intent of this chapter is to regulate sexually-oriented businesses to promote the health, safety and general welfare of the citizens of the town, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually-oriented businesses within the town, thereby reducing or eliminating the adverse secondary effects from such sexually-oriented businesses.
(B) The provisions of this chapter are not intended to impose a limitation or restriction on the content of any communicative materials, including sexually-oriented materials.
(C) It is not the intent of this chapter to restrict or deny access by adults to sexually-oriented materials protected by the First Amendment or the Colorado Constitution, or to deny access by the distributors and exhibitors of sexually-oriented entertainment to their intended market.
(D) Neither is it the intent, nor effect, of this section to condone or legitimize the distribution of obscene material.
(Ord. 1-2009, passed 7-6-2009)
Words, terms and phrases with definitions, as used in this chapter shall have the meanings set forth in § 156.041 of this code of ordinances. For the purpose of this chapter, the following definitions shall apply unless the context clearly requires a different meaning.
EMPLOYEE. A person who works or performs in and/or for a sexually-oriented business, regardless of whether or not said person is paid a salary, wage or other compensation by the operator of said 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 sexually-oriented business license.
LICENSING OFFICER. The Town Clerk/Treasurer or his or her designee.
MANAGER. An operator, other than a licensee, who is employed by a sexually-oriented business to act as a manager or supervisor of employees or is otherwise responsible for the operation of the business.
OPERATOR. The owner, license holder, custodian, manager, operator or person in charge of any licensed premises.
PERSON. An individual, partnership, corporation, association, unincorporated organization, trust or any other legal or commercial entity including a joint venture or affiliated ownership.
PREMISES or LICENSED PREMISES. Any premises that requires a sexually-oriented business license and that is classified as a sexually-oriented business, including parking lots and sidewalks immediately adjacent to the structure containing the sexually-oriented business.
PRINCIPAL OWNER. Any person owning, directly or indirectly, 10% or more of the ownership interests in the entity.
SPECIFIED CRIMINAL ACTS. Sexual crimes against children, sexual abuse, sexual assault or crimes connected with another sexually-oriented business including, but not limited to, distribution of obscenity, prostitution or pandering.
TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY-ORIENTED BUSINESS. 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, management arrangement, gift or other similar legal device which transfers ownership or control of the business, including a transfer by bequest or operation of law.
(Ord. 1-2009, passed 7-6-2009)
The provisions of this chapter regulating nude model studios do not apply to:
(A) A college, junior college or university supported entirely or partly by taxation;
(B) A private college or university that maintains and operates educational programs for which credits are transferable to a college, junior college or university supported entirely or partly by taxation; or
(C) A business located in a structure which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and where, in order to participate in a class, a student must enroll at least three days in advance of the class; and where no more than one nude model is on the premises at any one time.
(Ord. 1-2009, passed 7-6-2009)
It shall be unlawful for a licensee, manager or employee to violate any of the requirements of this chapter or to knowingly permit any patron to violate the requirements of this chapter.
(Ord. 1-2009, passed 7-6-2009) Penalty, see § 114.99
(A) The annual fee for a sexually-oriented business license is $200.
(B) The annual manager’s license fee is $50.
(C) An applicant for a sexually-oriented business license shall pay a non-refundable application fee of $500 at the time of filing an application.
(Ord. 1-2009, passed 7-6-2009)
(A) An applicant or licensee or manager shall permit representatives of the licensing officer, Town Superintendent, Town Police Department, the County Health Department and the Fire Department to inspect the premises of a sexually-oriented business for the purpose of ensuring compliance with the law at any time it is occupied or open for business.
(B) It shall be unlawful for any person, applicant, licensee or manager who operates a sexually-oriented business or his or her agent to refuse to permit such lawful inspection of the premises at any time that it is occupied or open for business.
(Ord. 1-2009, passed 7-6-2009) Penalty, see § 114.99
(A) License required.
(1) No sexually-oriented business license shall be issued for any sexually-oriented business located within any area of the town, except for areas zoned B-A Business District and B-B Business District.
(2) No person shall operate a sexually-oriented business without first having obtained a valid Type A or Type B sexually-oriented business license issued by the town.
(a) A Type A sexually-oriented business license shall be required for sexually-oriented businesses where alcoholic beverages or alcoholic liquors, as defined by the state’s Liquor Code and/or fermented malt beverages, as defined by the state’s Beer Code, are allowed pursuant to a valid license issued by the town.
(b) A Type B sexually-oriented business license shall be required for all sexually-oriented businesses where alcoholic beverages or alcoholic liquors, as defined by the state’s Liquor Code and/or fermented malt beverages, as defined by the state’s Beer Code, are not allowed.
(3) It shall be unlawful to operate or cause to be operated a sexually-oriented business when said person knows or reasonably should know that:
(a) The business does not have a sexually-oriented business license;
(b) The business has a sexually-oriented business license that is under suspension;
(c) The business has a sexually-oriented business license that has been revoked; or
(d) The business has a sexually-oriented business license that has expired.
(B) Application for license.
(1) The licensing officer is responsible for granting, denying, revoking, renewing and suspending sexually-oriented business licenses for proposed or existing sexually-oriented businesses.
(2) The licensing officer is authorized to consult the appropriate law enforcement officer to obtain information on whether an applicant has been convicted of a specified criminal act during the time periods set forth in division (E)(3)(h) below.
(3) Any person desiring to operate a sexually-oriented business shall file with the licensing officer an original and two copies of a sworn sexually-oriented business license application on the standard application form supplied by the licensing officer.
(4) The completed application shall contain the following information and shall be accompanied by the following documents:
(a) If the applicant is an individual, the individual shall state his or her legal name and any aliases, and submit satisfactory proof that he or she is 21 years of age or older in the case of a Type A sexually-oriented business license or 18 years of age or older in the case of a Type B sexually-oriented business license;
(b) If the applicant is a legal entity, the application shall state its complete name, the date and place of its organization, evidence that it is in good standing under the laws of the state in which it is organized, and if it is organized under the laws of a state other than Colorado, that it is registered to do business in Colorado, the names and capacity of all officers, directors, managers and principal owners, and the name of the registered agent and the address of the registered agent for service of process, if any;
(c) If the applicant intends to operate the sexually-oriented business under a name other than that of the applicant, the sexually-oriented business’ fictitious name must be stated;
(d) Whether the applicant or any of the other individuals listed pursuant to divisions (B)(4)(a) or (B)(4)(b) above have been convicted of a specified criminal act within the times set forth in division (E)(3)(h) below and, if so, the specified criminal act involved, the date of conviction and the place of conviction;
(e) Whether the applicant or any of the other individuals listed pursuant to divisions (B)(4)(a) or (B)(4)(b) above has had a previous license under this or other sexually-oriented business ordinance from another city, city or county denied, suspended or revoked and, if so, the name of the city, city or county where the license was previously denied, suspended or revoked, and the name and location of the sexually-oriented business for which the license was denied, suspended or revoked, as well as the date of the denial, suspension or revocation;
(f) Whether the applicant or any other individuals listed pursuant to divisions (B)(4)(a) or (B)(4)(b) above has been a partner in a partnership or a principal owner of a corporation or other legal entity whose license has previously been denied, suspended or revoked and, if so, the name of the city, city or county where the license was previously denied, suspended or revoked, and the name and location of the sexually-oriented business for which the license was denied, suspended or revoked, as well as the date of denial, suspension or revocation;
(g) Whether the applicant or any other individual listed pursuant to divisions (B)(4)(a) or (B)(4)(b) above holds any other licenses under this chapter or other sexually-oriented business ordinance from another city, city or county and, if so, the name of such city, city or county, and names and locations of such other licensed businesses;
(h) The location of the proposed sexually-oriented business, including a legal description of the property, street address and telephone number(s);
(i) Proof of the applicant’s right to possession of the premises wherein the sexually-oriented business will be conducted;
(j) The applicant’s mailing address and residential address;
(k) A sketch or diagram showing the configuration of the premises including a statement of total floor space occupied by the business and, if applicable, the plan required by Chapter 156 of this code of ordinances. The sketch or diagram need not be professionally prepared, but it must be oriented to the north or to some designated street or object and 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. The licensing officer may waive the foregoing diagram or plan for renewal applications if the applicant adopts a diagram or plan that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared. If the sexually-oriented business has or will have a peep booth or booths, the sketch shall show the locations and dimensions of any manager’s stations and demonstrate that there is an unobstructed view from one or more of the manager’s station(s) of every area of the premises to which any patron is permitted access, excluding restrooms. The floor plan shall designate those rooms or other areas of the premises where patrons are not permitted and shall also designate the use of each room or other area of the premises;
(l) A current certificate and straight-line drawing prepared within 30 days prior to an initial application by a Colorado registered land surveyor depicting: the property lines and the structures of the property to be certified; and the location of the property lines of any school, or platted tract or lot dedicated for school purposes, any daycare, religious institution, public building, dwelling, park or another sexually-oriented business within 600 feet of the property to be certified. For purposes of this section, a use or platted tract or lot shall be considered existing or established if it is in existence or pending at the time an application is submitted; and
(m) If a person who wishes to operate a sexually-oriented business is an individual, he or she must sign the application for a sexually-oriented business license as the applicant. If a person who wishes to operate a sexually-oriented business is other than an individual, each principal owner of the applicant must sign the application for a sexually-oriented business license as applicant.
(5) In the event that the licensing officer determines or learns at any time that the applicant has improperly completed the application for a proposed sexually-oriented business, he or she shall promptly notify the applicant of such fact and allow the applicant ten days to properly complete the application. The time period for granting or denying a sexually-oriented business license shall be stayed during the period in which the applicant is allowed an opportunity to properly complete the application.
(6) The fact that a person possesses other types of state or town licenses does not exempt him or her from the requirement of obtaining a sexually-oriented business license.
(C) Duty to supplement application.
(1) Applicants for a sexually-oriented business license and licensees shall have a continuing duty to promptly supplement any application information required by this chapter in the event that said information changes in any way from what is stated on the application.
(2) The failure to comply with said continuing duty to supplement an application within 30 days from the date of such change shall be grounds for denial of an application or suspension of a sexually-oriented business license.
(D) Investigation of application.
(1) Upon receipt of an application for a sexually-oriented business license properly filed with the licensing officer and upon payment of the non-refundable application fee, the licensing officer shall immediately stamp the application as received and send copies of the application to the Town Superintendent and the Town Police Chief. The Town Superintendent and Town Police Chief, or their respective designees, shall promptly conduct an investigation of the applicant, application and the proposed sexually-oriented business in accordance with this chapter. Investigations shall be completed within 20 days of receipt of the application by the licensing officer. At the conclusion of their investigations, the Town Superintendent shall indicate on the copy of the application his or her approval or disapproval of the application, date it, sign it and in the event of disapproval, state the reasons therefor. The Town Police Chief shall only be required to provide the information specified in division (B)(2) above and shall not approve or disapprove applications.
(2) The Town Superintendent may disapprove an application if he or she finds that the proposed sexually-oriented business will be or is in violation of any provision of any statute, code, ordinance, regulation or other law in effect in the town. After their investigations and review, the Town Superintendent and Town Police Chief shall each immediately return the copy of the application to the licensing officer.
(E) Issuance license.
(1) The licensing officer shall grant or deny an application for a sexually-oriented business license within 30 days from the date of its proper filing. Upon the expiration of the 30 days, the applicant shall be licensed to begin operating the business for which the sexually-oriented business license is sought, unless and until the licensing officer notifies the applicant of a denial of the application and states the reason(s) for that denial.
(2) The licensing officer shall grant the sexually-oriented business license unless one or more of the criteria set forth in division (E)(3) below is present. The sexually-oriented business 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 sexually-oriented business license shall be posted in a conspicuous place at or near the entrance to the sexually-oriented business so that it can be easily read at any time.
(3) The licensing officer shall deny the application for any of the following reasons:
(a) An applicant is under 21 years of age in the case of an application for a Type A sexually-oriented business license or under 18 years of age in the case of an application for a Type B sexually-oriented business license;
(b) An applicant is overdue on his or her payments to the town of taxes, fees, fines or penalties assessed against or imposed upon him or her in relation to a sexually-oriented business;
(c) An applicant has failed to provide information required by this division (E) for the issuance of the sexually-oriented business license or has falsely answered a question or request for information on the application form and has refused to provide corrected information;
(d) The premises to be used for the sexually-oriented business have been disapproved by an inspecting agency;
(e) The application or sexually-oriented business license fees have not been paid;
(f) An applicant for the proposed business is in violation of or is not in compliance with any of the provisions of this chapter;
(g) The granting of the application would violate a statute, ordinance or court order;
(h) The applicant has a sexually-oriented business license under this division (E) that has been suspended or revoked within the previous 12 months;
(i) 1. An applicant has been convicted of a specified criminal act or acts for which:
a. Less than two years have elapsed since the date of conviction or the date of release from confinement, 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 or release from confinement, 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 conviction or the date of release from confinement, whichever is the later date, if the convictions are of two or more misdemeanors.
2. The fact that a conviction is being appealed shall have no effect on disqualification of the applicant. An applicant who has been convicted of a specified criminal act or acts may qualify for a sexually-oriented business license only when the time period required above has elapsed.
(j) If the licensing officer denies the application, he or she shall notify the applicant of the denial and state the reason(s) for the denial. A copy of such denial shall be forwarded to the Town Attorney.
(F) Expiration of license.
(1) Each sexually-oriented business license shall expire one year from the date of issuance and may be renewed only by making application as provided in division (B) above (for renewals, filing of original survey shall be sufficient). Application for renewal of a sexually-oriented business license shall be made at least 30 days before the expiration date of the sexually-oriented business license.
(2) If, subsequent to denial of renewal the licensing officer finds that the basis for denial of the renewal of the sexually-oriented business license has been corrected, the applicant shall be granted a sexually-oriented business license if no more than 90 days have elapsed since the date denial became final.
(G) Suspension of license.
(1) The licensing officer may suspend a sexually-oriented business license for a period not to exceed 150 days if he or she determines that a licensee or an employee of a licensee has:
(a) Violated or is not in compliance with any section of this chapter or any other section of this code of ordinances regulating sexually-oriented businesses;
(b) Refused to allow an inspection of the sexually-oriented business premises as authorized by this chapter;
(c) Knowingly allowed repeated disturbances of public peace to occur within the licensed establishment or upon the premises of the licensed establishment involving patrons, employees or the licensee;
(d) Operated the sexually-oriented business in violation of a building, fire, health or zoning code, ordinance or regulation whether federal, state or local, said determination being based on investigation by the department, division or agency charged with enforcing said rules or laws. In the event of such a statute, code, ordinance or regulation violation, the licensing officer shall promptly notify the licensee of the violation and shall allow the licensee a 20-day period in which to correct the violation. If the licensee fails to correct the violation before the expiration of the 20-day period, the licensing officer shall forthwith suspend the sexually-oriented business license and shall notify the licensee of the suspension;
(e) Operated the sexually-oriented business in violation of the hours of operation provisions set forth in this chapter; or
(f) Transferred a sexually-oriented business license contrary to the provisions of this chapter. In the event of such suspension, the licensing officer shall forthwith notify the original licensee and the transferee of the suspension. The suspension shall remain in effect until the applicable section of this chapter has been satisfied.
(2) The suspension shall remain in effect until and including the last day in the licensing officer’s order and the violation of the statute, code, ordinance or regulation in question has been corrected.
(H) Revocation of license.
(1) The licensing officer may revoke a sexually-oriented business license upon determining that:
(a) A cause of suspension as set forth in this chapter occurred and the sexually-oriented business license has been suspended within the preceding 12 months;
(b) A licensee gave false or misleading information in the material submitted during the application process that tended to enhance the applicant’s opportunity for obtaining a sexually-oriented business license;
(c) A licensee, manager or an employee has knowingly allowed possession, use or sale of controlled substances (as defined in C.R.S.§ 18-18-102, as amended) on the premises;
(d) A licensee, manager or an employee has knowingly allowed acts of prostitution or negotiations for acts of prostitution on the premises;
(e) A licensee, manager or an employee knowingly operated the sexually-oriented business during a period of time when the licensee’s sexually-oriented business license was suspended;
(f) A licensee has been convicted of a specified criminal act for which the time period set forth in division (E)(3)(h) above has not elapsed;
(g) On two or more occasions within a 12-month period, a person or persons committed an offense, occurring in or on the licensed premises constituting a specified criminal act 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. The fact that a conviction is being appealed shall have no effect on the revocation of the sexually-oriented business license;
(h) A licensee is delinquent in payment to the town or state for any taxes or fees;
(i) A licensee, manager or an employee has knowingly allowed any specified sexual activity to occur in or on the licensed premises; or
(j) The licensee has operated more than one sexually-oriented business within the same building, structure or portion thereof.
(2) When the licensing officer revokes a sexually-oriented business 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.
(I) Suspension or revocation hearing.
(1) A licensee shall be entitled to a hearing before the licensing officer if the town seeks to suspend or revoke his or her sexually-oriented business license based on a violation of this chapter or any other section of this code of ordinances regulating sexually-oriented businesses. The business may continue to operate during the hearing process.
(2) When there is probable cause to believe that a cause for suspension or revocation exists, the Town Attorney may file a written complaint with the licensing officer setting forth the circumstances of the alleged violation.
(3) The licensing officer shall provide a copy of the complaint to the licensee, together with notice to appear before the licensing officer for the purpose of a hearing on a specified date to show cause why the licensee’s sexually-oriented business license should not be suspended or revoked.
(4) (a) At the hearing, the licensing officer shall hear such statements and consider such evidence as the law enforcement personnel, or other enforcement officers, the owner, occupant, lessee or other party in interest, or any other witness shall offer that is relevant to the violation alleged in the complaint.
(b) The licensing officer shall make findings of fact from the statements and evidence offered as to whether the violation occurred in or near the licensed establishment.
(c) If the licensing officer determines that a cause for suspension or revocation exists, he or she shall issue an order suspending or revoking the sexually-oriented business license within 30 days after the hearing is concluded based on the findings of fact.
(d) A copy of the order shall be mailed to or served on the licensee at the address on the license.
(5) (a) The order of the licensing officer made pursuant to division (I)(4) above shall be a final decision and may be appealed to the district court pursuant to Colorado Rules of Civil Procedure 106(a)(4).
(b) Failure of a licensee to timely appeal said order constitutes a waiver by him or her of any right he or she may otherwise have to contest the suspension or revocation of the sexually-oriented business license.
(6) (a) The licensing officer shall have the power to administer oaths, issue subpoenas and when necessary grant continuances. Subpoenas may be issued to require the presence of persons and production of papers, books and records necessary to the determination of any hearing which the licensing officer conducts.
(b) It is unlawful for any person to fail to comply with any subpoena issued by the licensing officer.
(c) A subpoena shall be served in the same manner as a subpoena issued by the District Court of the state.
(7) (a) All hearings held before the licensing officer regarding suspension or revocation of a sexually-oriented business license issued under this chapter shall be recorded stenographically or by electronic recording device.
(b) Any person requesting a transcript of such record shall post a deposit in the amount required by the licensing officer, and shall pay all costs of preparing such record.
(8) In the event of suspension, revocation or cessation of business, no portion of the sexually-oriented business license fee shall be refunded.
(J) Transfer of license.
(1) A licensee shall not operate a sexually-oriented business under the authority of a sexually-oriented business license at any place other than the address designated in the application for sexually-oriented business license.
(2) A licensee shall not transfer his or her sexually-oriented business license to another person unless and until such other person satisfies the following requirements:
(a) Obtains an amendment to the sexually-oriented business license from the licensing officer which provides that he or she is now the licensee, which amendment may be obtained only if he or she has completed and properly filed an application with the licensing officer setting forth the information called for under division (B) above; and
(b) Pays a transfer fee of 20% of the annual sexually-oriented business license fee.
(3) No sexually-oriented business license may be transferred when the licensing officer has notified the licensee that suspension or revocation proceedings have been or will be brought against the licensee.
(4) Any attempt to transfer a sexually-oriented business license either directly or indirectly in violation of this section is declared void.
(K) Suspension or revocation hearing.
(1) (a) A manager shall be entitled to a hearing before the licensing officer if the town seeks to suspend or revoke the manager’s license based on a violation of this chapter or any other section of this code of ordinances regulating sexually-oriented businesses.
(b) The manager may continue to manage a sexually-oriented business during the hearing process.
(2) When there is probable cause to believe that a cause for suspension or revocation exists, the Town Attorney may file a written complaint with the licensing officer setting forth the circumstances of the alleged violation.
(3) The licensing officer shall provide a copy of the complaint to the licensee, together with notice to appear before the licensing officer for the purpose of a hearing on a specified date to show cause why the licensee’s license should not be suspended or revoked.
(4) (a) At the hearing, the licensing officer shall hear such statements and consider such evidence as the law enforcement personnel, or other enforcement officers, the owner, employer, occupant, lessee or other party in interest, or any other witness shall offer which is relevant to the violation alleged in the complaint.
(b) The licensing officer shall make findings of fact from the statements and evidence offered as to whether the violation occurred in or near the licensed establishment.
(c) If the licensing officer determines that a cause for suspension or revocation exists, he or she shall issue an order suspending or revoking the manager’s license within 30 days after the hearing is concluded based on the findings of fact.
(d) A copy of the order shall be mailed to or served on the licensee at the address on the license.
(5) (a) The order of the licensing officer made pursuant to division (K)(4) above shall be a final decision and may be appealed to the district court pursuant to the Colorado Rules of Civil Procedure 106(a)(4).
(b) Failure of a licensee to timely appeal said order constitutes a waiver by him or her of any right he or she may otherwise have to contest the suspension or revocation of the manager’s license.
(6) (a) The licensing officer shall have the power to administer oaths, issue subpoenas and, when necessary, grant continuances.
(b) Subpoenas may be issued to require the presence of persons and production of papers, books and records necessary to the determination of any hearing the licensing officer conducts.
(c) It is unlawful for any person to fail to comply with any subpoena issued by the licensing officer.
(d) A subpoena shall be served in the same manner as a subpoena issued by the District Court of the state.
(7) (a) All hearings held before the licensing officer regarding suspension or revocation of a manager’s license issued under this chapter shall be recorded stenographically or by electronic recording device.
(b) Any person requesting a transcript of such record shall post a deposit in the amount required by the licensing officer and shall pay all costs of preparing such record.
(8) In the event of suspension, revocation or cessation of business, no portion of the manager’s license fee shall be refunded.
(L) Notice. Any notice required by this chapter shall be deemed sufficient if it is deposited in first class mail, postage pre-paid, to the address on the application and shall be effective upon mailing.
(M) Judicial review. After denial of an application, or denial of a renewal of an application, or suspension or revocation of a license, such act shall be a final decision. Therefore, the applicant or licensee may seek judicial review of such administrative action pursuant to the Colorado Rules of Civil Procedure. The Court shall promptly review such administrative action.
(Ord. 1-2009, passed 7-6-2009) Penalty, see § 114.99
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