(a) Purpose and intent. The purpose and intent of this Section is to regulate the location and operation of sexually oriented businesses and to minimize their negative secondary effects. Based upon studies undertaken and reported by numerous other communities, it is recognized that the adult businesses, identified in this ordinance because of their very nature, have serious objectionable operational characteristics that cause negative secondary effects upon nearby residential, educational, religious, and other similar public and private uses. The regulation of sexually oriented businesses is necessary to ensure that their negative secondary effects will not contribute to the blighting or downgrading of surrounding areas and will not negatively impact the health, safety, and general welfare of residents.
The provisions of this Ordinance are not intended to offend the guarantees of the First Amendment to the United States Constitution, or to deny adults access to sexually oriented businesses and their products, or to deny sexually oriented businesses access to their intended market. Neither is it the intent of this Ordinance to legitimatize activities which are prohibited by City ordinance or state or federal law. The regulations in Section 6.25 are for the purpose of locating these uses in areas where the adverse impact of their operations may be minimized by the separation of such uses from one another and places of public congregation.
Prior to adopting these regulations, the City reviewed studies prepared on these uses, reviewed ordinances and regulations prepared by other municipalities, and reviewed applicable federal and state case law. Based on evidence of the adverse effects of adult uses presented in reports made available to the City Council and on findings incorporated in the cases of Pap's AM v City of Erie, 529 US 277 (2000), Deja Vu of Nashville v Metropolitan Government of Nashville & Davidson County, 466 G3d 391 (6th Cir 2006), Sensations, Inc. v City of Grand Rapids, 2006 WL 2504388 (WD MI 2006), Van Buren Township v Garter Belt, 258 Mich App 594; 673 NW2d 111 (2003), Bronco's Entertainment v Charter Township of Van Buren, 421 F3d 440 (6th Cir 2005), Thomas v Chicago Park District, 122 S Ct 775 (2002), City of Renton v Playtime Theatres Inc, 475 US 41 (1986), Young v American Mini Theatres, 426 US 50 (1976), Barnes v Glen Theatre Inc, 501 US 560 (1991); California v LaRue, 409 US 109 (1972); DLS Inc v City of Chattanooga, 107 F3d 403 (6th Cir 1997); East Brooks Books Inc v City of Memphis, 48 F3d 2200 (6th Cir 1995), Broadway Books v Roberts, 642 F Supp 4867 (ED Tenn 1986); Bright Lights Inc v City of Newport, 830 F Supp 378 (ED Ky 1993); Richland Bookmart v Nichols, 137 F3d 435 (6th Cir 1998), Richland Bookmart v Nichols, 278 F3d 570 (6th Cir 2002); Déjà vu of Cincinnati v Union Township Board of Trustees, 411 F3d 777 (6th Cir 2005); Déjà vu of Nashville v Metropolitan Government of Nashville, 274 F3d 377 (6th Cir 2001); Bamon Corp v City of Dayton, 7923 F2d 470 (6th Cir 1991); Threesome Entertainment v Strittmather, 4 F Supp 2d 710 (ND Ohio 1998); JL Spoons Inc v City of Brunswick, 49 F Supp 2d 1032 (ND Ohio 1999); Triplett Grille Inc v City of Akron, 40 F3d 129 (6th Cir 1994); Nightclubs Inc v City of Paducah, 202 F3d 884 (6th Cir 2000); O'Connor v City and County of Denver, 894 F2d 1210 (10th Cir 1990); Deja Vu of Nashville Inc et al v Metropolitan Government of Nashville and Davidson County, 2001 USA App LEXIS 26007 (6th Cir Dec 6. 2001); ZJ Gifts D-2 LLC v City of Aurora, 136 F3d 683 (10th Cir 1998); Connection Distribution Co v Reno, 154 F3d 281 (6th Cir 1998); Sundance Associates v Reno, 139 F3d 804 (10th Cir 1998); American Library Association v Reno, 33 F3d 78 (DC Cir 1994); American Target Advertising Inc v Giani, 199 F3d 1241 (10th Cir 2000); ZJ Gifts D-2LLC v City of Aurora, 136 F3d 683 (10th Cir 1998); ILQ Investments Inc v City of Rochester, 25 F3d 1413 (8th Cir 1994); Bigg Wolf Discount Video Movie Sales Inc v Montgomery County, 2002 US Dist LEXIS 1896 (D Md Feb 6 2002); Currence v Cincinnati, 2002 US App LEXIS 1258 (3rd Cir Jan 24, 2002); and other cases; and on 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 reports of secondary effects occurring in and around sexually oriented businesses, including, but not limited to, Phoenix, Arizona - 1979; Minneapolis, Minnesota - 1980; Houston, Texas - 1997; Amarillo, Texas; Garden Grove, California - 1991; Los Angeles, California - 1977; Whittier, California - 1978; Austin, Texas - 1986; Seattle, Washington - 1989; Oklahoma City, Oklahoma - 1986; Cleveland, Ohio - and Dallas, Texas - 1997; St. Croix County, Wisconsin - 1993; Bellevue, Washington - 1998; Newport News, Virginia - 1996; New York Times Square 1993; Bellevue, Washington - 1998; Newport News, Virginia - 1996; New York Times Square study - 1994; Phoenix, Arizona - 1995-98; and also on findings from the paper entitled "Stripclubs According to Strippers: Exposing Workplace Sexual Violence," by Kelly Holsopple, Program Director, Freedom and Justice Center for Prostitution Resources, Minneapolis, Minnesota, 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 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 that sexually oriented businesses as a category of establishments are correlated with harmful secondary effects, and that the foregoing reports are reasonably believed to be relevant to the problems that Howell is seeking to abate and prevent in the future. Due to the potential for harmful secondary effects, the City Council further determines that it is in the best interests of the City that the decision on any application for a special use approval for a sexually oriented business be made by the City Council after review and recommendation by the Planning Commission. The primary control or regulation is for the purpose of preventing a concentration of these uses in any one (1) area (i.e., not more than two (2) such uses within a specified distance of each other which would create such adverse effect(s). Sexually oriented businesses are classified as follows.
1. adult arcades;
2. adult bookstores or adult video stores;
3. adult cabarets;
4. adult massage parlors;
5. adult motels;
6. adult motion picture theaters;
7. adult theaters;
8. adult nudity or retail stores;
9. escort and escort agencies;
10. nude model studios; and
11. sexual encounter centers.
(b) Location. Sexually oriented business uses, as defined herein, shall be permitted within the B-2 (General Business), I-1 (Industrial 1) and I-2 (Industrial 2) Districts as a use subject to special approval, and further subject to the following conditions:
(1) No sexually oriented business as defined herein shall be permitted within one thousand (1,000) feet of an existing sexually oriented business. Measurement of the 1,000 feet shall be made in a straight line without regard to intervening structures or objects from the closest exterior wall of each business.
(2) No sexually oriented business as defined herein shall be permitted within five hundred (500) feet of a residentially zoned or used parcel, school, library, public park, playground, licensed group day-care home or center, or religious institution. Measurement of the five hundred (500) feet shall be made without regard to intervening structures or objects from the nearest point of the property line of the premises where the sexually oriented business is conducted, to the nearest point of the property line of those uses mentioned above.
(3) A sexually oriented business site shall not be located closer than five hundred (500) feet to the right-of-way of Interstate 96 as well as all principal and/or minor arterial roads within the City of Howell, as designated by the City's Master Plan.
(4) A person is in violation of this Ordinance if he/she causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within one thousand (1,000) feet of another sexually oriented business.
(5) A person is in violation of this Ordinance if he/she causes or permits the operation, establishment or maintenance of more than one (1) sexually oriented business in the same building, structure or portion thereof or the substantial enlargement of any sexually oriented business in any building, structure or portion thereof containing another sexually oriented business.
(6) For the purposes of measuring the required distances and separations in Sub-Section (1) and (2) above, access easements or portions of the parcel that are exclusively used to provide access to the site of the sexually oriented business shall be excluded from the parcel boundary in determining whether the site complies with the required separation. The intent of this exclusion is to allow sexually oriented businesses to comply with the separation requirement from major thoroughfares by means of an access easement or access strip of land from the site to the thoroughfare.
(c) Review. Any application for special use approval for a sexually oriented business shall proceed before the Planning Commission for recommendation, and the City Council for final decision. In reviewing an application for special use approval, the Planning Commission and City Council shall apply the standards contained in Section 3.03 of this Ordinance. Further, the Planning Commission and City Council shall consider the following additional standards with respect to the sexually oriented business:
(1) That the proposed use will not be contrary to the public interest or injurious to nearby properties and that the spirit and intent of this Section will be observed.
(2) That the proposed use will not enlarge or encourage the development of an area in which the homeless, unemployed, transients or others may loiter or congregate for no gainful purpose.
(3) That the establishment of any additional sexually oriented business use in the area will not be contrary to any program of neighborhood conservation nor will it interfere with any plans for future development of the area according to the City's Master Plan.
(4) That all applicable regulations of this Ordinance will be observed.
(d) Time limits for review. The following time limits shall apply to the review of an application by the Planning Commission and City Council for special approval of a sexually oriented business as regulated by this Section.
(1) The Planning Commission will publish notice and hold a public hearing as required for special land use approval review within sixty (60) days of receiving a complete and technically compliant special approval and site plan application as required by Section 3.03(b) of the Zoning Ordinance for a sexually oriented business.
(2) The Planning Commission will make its recommendation regarding the special approval application for a sexually oriented business at the next regularly scheduled meeting of the Planning Commission following the public hearing held to review the application, unless additional information is required from the applicant. If additional information is required, the Planning Commission will make its recommendation at the next regularly scheduled meeting after receipt of the requested additional information, provided the additional information is received no later than fifteen (15) days prior to the meeting.
(3) The recommendation of the Planning Commission will be forwarded to the City Council within sixty (60) days of the meeting at which Planning Commission issues its recommendation. The City Council will render its decision to grant or deny special approval of the sexually oriented business or to grant approval with conditions, as stipulated by the Zoning Ordinance at this meeting.
(4) Failure of the City to act within the above specified time limits shall not be deemed to constitute the grant of special approval to the sexually oriented business.
(5) The Planning Commission may recommend that the City Council impose such conditions or limitations upon the establishment, location, construction, maintenance or operation of the sexually oriented business, as shall, in its judgment, be necessary for the protection of the public health, safety, welfare and interest, except that any conditions imposed on a sexually oriented business as defined in this Section shall be limited to those conditions necessary to assure compliance with the standards and requirements in this Section. Likewise, the City Council may impose conditions or limitations as deemed necessary. Any evidence and guarantee may be required as proof that the conditions stipulated in connection with the establishment, maintenance and operation of a sexually oriented business shall be fulfilled.
(e) Effect of denial. No applicant for a regulated use which has been denied wholly or in part shall be resubmitted for a period of one (1) year from the date of said order of denial, except on the grounds of new evidence or proof of changed conditions.
(f) Revocation. In any case where a building permit for a regulated use is required and has not been obtained within six (6) months after the granting of the special approval by the City Council, the grant of special approval shall become null and void.
(g) Miscellaneous requirements and conditions.
(1) No person shall reside in or permit any person to reside in the premises of a sexually oriented business.
(2) Such uses shall comply with all applicable federal, state, and local licensing regulations. Initial and annual proof of such compliance shall be a condition for continuance of licensure by the City.
(3) Nothing contained in this Section shall relieve the operator(s) of a sexually oriented business from complying with other requirements of this Ordinance as it may be amended from time to time, or any subsequently enacted Ordinances.
(4) All off-street parking areas and entry door areas of a sexually oriented business shall be illuminated from dusk until the closing time of the business with a lighting system which provides an average maintained horizontal illumination of one foot-candle of light on all parking surfaces and/or walkways. This requirement is to ensure the personal safety of patrons and employees, and to reduce the incidence of vandalism and other criminal conduct.
(5) The landscaping requirements of Section 5.10 shall apply to all such uses with the following exceptions:
(a) No shrub/hedge shall be taller than three (3) feet within the required front yard of the building and when grouped shall maintain an opacity of no greater than 80% (as defined in Section 5.10(d)).
(b) All trees shall be limbed up (removal of all lower limbs) to ensure a clear zone of no less than four (4) feet from grade.
(6) Where a fence/wall is required it shall be no taller than six (6) feet in all locations with the exception of the required front yard where three (3) feet shall prevail.
(7) Any business now classified as sexually oriented business lawfully operating on the date of adoption of the Ordinance, that is in violation of Sub-Sections (b)(1), (2) or (3) above shall be deemed a nonconforming use.
(h) Nude entertainment prohibited in alcoholic commercial establishment. It shall be unlawful for any person to perform in any alcoholic commercial establishment, to knowingly permit or allow to be performed therein, any of the following acts or conduct:
(1) The public performance of acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellations, or any sexual acts which are prohibited by law;
(2) The actual or simulated touching, caressing or fondling on the breasts, buttocks, anus or genitals in public; or
(3) The actual or simulated public displaying of the pubic hair, anus, vulva or genitals.
(4) It shall be unlawful for the owner, operator, agent or employee of an alcoholic commercial establishment to allow any female to appear in an alcoholic commercial establishment so costumed or dressed that one or both breasts are wholly or substantially exposed to public view. Topless or bottomless or totally uncovered waitresses, bartenders or barmaids, entertainers including dancers, impersonators, lingerie shows, or any other form for the attraction or entertainment of customers, is strictly prohibited. "Wholly or substantially exposed to public view" as it pertains to breasts shall mean the showing of the female breast in an alcoholic commercial establishment with less than a fully opaque covering of all portions of the areola and nipple, and the prohibition shall also extend to such events similar to wet t-shirt contests, lingerie shows or bikini shows.
(i) Exterior display and signs. A sexually oriented business is in violation of this Section if:
(1) The merchandise or activities of the establishment are visible from any point outside the establishment; or
(2) The exterior portions of the establishment or signs have any words, lettering, photographs, silhouettes, drawing or pictorial representatives of any specified anatomical area or sexually explicit activity as defined in this Ordinance.
(j) Advertising.
(1) The building and premises shall be designed and constructed so the material depicting, describing, or relating to specified sexual activities or specified anatomical areas cannot be observed by pedestrians or from vehicles on any public right-of-way. This provision shall apply to any display, decoration, sign, show window, or other opening. This prohibition shall not extend to advertising of the existence or location of such sexually oriented business.
(2) The permittee shall not allow any portion of the interior premises to be visible from outside the premises.
(3) Pursuant to Article 7, each conforming sexually oriented business shall be permitted both wall and freestanding signs which announce the names of the business. No off-premise or portable signs shall be permitted.
(k) Parking/Lighting.
(1) All off-street parking areas and premise entries of the sexually oriented business shall meet the requirements for parking under Article 10 of this Ordinance.
(2) Premise entries and parking areas shall be illuminated from dusk to closing hours of operation with a lighting system that complies with Article 8, Section 8.05(a), Exterior Lighting from Direct Sources. The lighting shall be shown on the required site plan.
(l) Hours of Operation. No sexually oriented business, except for an adult motel, may remain open at any time between the hours of 1:00 A.M. and 8:00 A.M., on weekdays and Saturdays, and 1:00 A.M. and 12:00 P.M. on Sundays.
(m) License required to operate a sexually oriented business. Special approval and site plan approval shall be granted on the condition that the operator or owner of a sexually oriented business obtains a license to operate the business as required by Chapter 810 of the Howell City Code.
(n) Nonconforming use. Any sexually oriented business lawfully operating on the effective date of this Section that is in violation of this Section shall be deemed a nonconforming use. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to conforming use. If two (2) or more sexually oriented businesses are within one thousand (1,000) feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at the particular location is the conforming use and the later established business(es) is nonconforming. Nothing in this Section shall prevent the reconstruction, repairing or rebuilding and continued use of any non-conforming building or structure, which is damaged by fire, collapse, explosion or act of God, provided that the expense of such reconstruction does not exceed fifty percent (50%) of the reconstruction cost of the building or structure at the time such damage occurred. Where the reconstruction repair or rebuilding exceeds the above-stated fifty (50%) percent, the reestablishment of the use shall be subject to all provisions of this Ordinance.
(o) Enforcement. A violation of the provisions of this Section shall result, in addition to the remedies provided herein, possible criminal violations consisting of a fine of five hundred ($500.00) dollars or a jail term of ninety (90) days, or both.
(p) Injunction. In addition to the provisions of this Section, the City, at its option, may commence proceedings in the circuit court under the appropriate court rule or statute to enjoin any activity conducted by a sexually oriented business that is deemed to be in violation of these provisions.