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 neither the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First and Fourteenth Amendments to the Constitution of the United States or to deny access by distributors and exhibitors of sexually oriented entertainment to their intended market.
(A) Purpose. It is the purpose of this chapter to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the Kochville Township and to establish reasonable and uniform regulations to:
(1) Prevent additional criminal activity within the township;
(2) Prevent deterioration of neighborhoods and its consequent adverse effect on real estate values of properties within the neighborhood;
(3) Locate sexually oriented businesses away from residential areas, schools, places of worship, public parks, playgrounds and public libraries; and
(4) Prevent concentration of sexually oriented businesses within certain areas of the township.
(B) Findings. The Township Board makes the following findings about the adverse secondary effects sexually oriented businesses may have on the character of the township’s neighborhoods. In making these findings, the Township Board accepts the recommendations of staff who have reviewed the many reports, studies, judicial decisions, and experiences of cities and other townships around the state and country concerning the secondary effects on the areas in which such activities are located or take place, including: Pap’s A.M. v. City of Erie, 529 U.S. 277 (2000); Thomas v. Chicago Park District, 534 U.S. 316 (2002); City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986); City of Newport, Kentucky v. Iacobucci, 479 U.S. 92 (1986); United States v. O'Brien, 391 U.S. 367 (1968); Hang On, Inc., v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); South Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608 (11th Cir. 1984); 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); Sensations, Inc. v. City of Grand Rapids, Case Nos. 1:06-CV-300, 4:06-CV-60 (W.D. Mich. Oct. 23, 2006) (unpublished); 2006 U.S. Dist. LEXIS 77159; DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir. 1995); Broadway Books v. Roberts, 642 F. Supp. 486 (E.D. Tenn. 1986); Bright Lights, Inc. v. City of Newport, 830 F. Supp. 378 (E.D. Ky. 1993); Exec. Arts Studio v. City of Grand Rapids, 391 F.3d 783 (6th Cir. 2004); Richland Bookmart v. Nichols, 137 F.3d 435 (6th Cir. 1998); Deja Vu v. Metro Government, Case Nos. 96-6512, 96-6573, 97-5924, 97-5938 (6th Cir. Jan. 13, 1999) 1999 U.S. App. LEXIS 535 (unpublished); Bamon Corp. v. City of Dayton, 923 F.2d 470 (6th Cir. 1991); Threesome Entertainment v. Strittmather, 4 F. Supp.2d 710 (N.D. Ohio 1998); J.L. Spoons, Inc. v. City of Brunswick, 49 F.Supp.2d 1032 (N.D. Ohio 1999); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994); O'Connor v. City and County of Denver, 894 F.2d 1210 (10th Cir. 1990); Deja Vu of Nashville, Inc., et al. v. Metropolitan Government of Nashville and Davidson County, 274 F.3d 377 (6th Cir. 2001); Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10th Cir. 1998); Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998); Sundance Assocs. v. Reno, 139 F.3d 804 (10th Cir. 1998); American Library Association v. Reno, 33 F.3d 78 (D.C. Cir. 1994); American Target Advertising, Inc. v. Giani, 199 F.3d 1241 (10th Cir. 2000); ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994); Bigg Wolf Discount Video Movie Sales, Inc. v. Montgomery County, 184 F.Supp.2d 445 (D. Md. 2002); Currence v. Cincinnati, 28 Fed. Appx. 438 (6th Cir. 2002); and other cases; and on testimony to Congress in 135 Cong. Rec. S. 14519; 135 Cong. Rec. S 5636; 134 Cong. Rec. E 3750; and reports of secondary effects occurring in and around Adult Entertainment Activities, 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 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 Adult Entertainment Activities, (June 6, 1989, State of Minnesota), which conclude that:
(1) Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are frequently uncontrolled by the operators of the establishments responsible for the activities that occur on their premises.
(2) Crime statistics show that all types of crimes occur with more frequency in neighborhoods where sexually oriented businesses are located [e.g., Crime-Related Secondary Effects of Sexually-Oriented Businesses: Report to the City Attorney, Richard McCleary, Ph.D., May 6, 2007; Crime Risk in the Vicinity of a Sexually Oriented Business: A Report to the Centralia City Attorney’s Office, Richard McCleary, Ph.D., February 28, 2004; A Methodological Critique of the Linz-Paul Report: A Report to the San Diego City Attorney’s Office, Richard McCleary, Ph.D. and James W. Meeker, J.D., Ph.D., March 12, 2003; Final Report to the City of Garden Grove: The Relationship Between Crime and Adult Business Operations on Garden Grove Boulevard, Richard McCleary, Ph.D. and James W. Meeker, J.D., Ph.D., October 23, 1991.
(3) Sexual acts, including masturbation, oral and anal sex, may occur at sexually oriented businesses, especially those which provide private or semi-private booths or cubicles for viewing films, videos, or live sex shows [e.g., California v. LaRue, 409 U.S. 109, 111 (1972); Final Report of the Attorney General’s Commission on Pornography (1986), pgs. 376-377].
(4) Offering and providing such booths and/or cubicles encourages such activities, which may create unhealthy conditions [e.g., Final Report of the Attorney General’s Commission on Pornography (1986) pg. 377].
(5) Certain persons frequent certain adult theaters, adult arcades, and other sexually oriented business [e.g., Arcadia v Cloud Books, Inc., 478 U.S. 697, 698 (1986); Final Report of the Attorney General’s Commission of Pornography (1986) pgs, 376-377].
(6) At least 50 communicable diseases may be spread by activities occurring in sexually oriented businesses including, but not limited to: syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis B, hepatitis C, amebiasis, salmonella infections, and shigella infections (e.g., Study of Fort Meyers, Florida).
(7) As of December 2003, roughly 1.1 million persons in the United States were living with HIV-AIDS. The Centers for Disease Control and Prevention estimates that approximately 40,000 persons in the United States become infected each year (e.g., CDC. HIV/AIDS Surveillance Report, 2005. Vol 17.
(8) According to the best scientific evidence available, HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts and the best way to prevent HIV transmission is by abstinence and prevention and treatment of Sexually Transmission Diseases (STDs) in sexually active persons [e.g., CDC. HIV Prevention Through Early Detection and Treatment of Other Sexually Transmitted Diseases - United States Recommendations of the Advisory Committee for HIV and STD Prevention, 47(RR12); 1-24/July 31, 1998].
(9) Numerous studies and reports have determined that bodily fluids, including semen and urine, are found in the areas of sexually oriented businesses where person view “adult” oriented films (e.g., Final Report of the Attorney General's Commission on Pornography, pg. 377 (1986)).
(10) Nude dancing in commercial establishments may encourage prostitution, increase sexual assaults and attract other criminal activity [e.g., Barnes v. Glenn Theater, 501 U.S. 560, 583 (1991)].
(11) Nude dancing in commercial establishments may increase the likelihood of drug-dealing and drug use [e.g., Key, Inc. v. Ketsap County, 793 F.2d 1053, 1056 (9th Cir. 1986)].
(C) The findings noted in § 114.02(B)(1) through (11) raise substantial governmental concerns. Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns. 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 business. Further, such a licensing procedure will place a heretofore no-existent 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 township. 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.
Licensing of sexually oriented businesses shall address:
(1) The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually oriented business, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases and criminal activity;
(2) The prevention of the spread of communicable diseases by obtaining a limited amount of information regarding all employees who may engage in the conduct this chapter is designed to prevent or who are likely to be witnesses to such activity;
(3) The barring of individuals previously convicted of a sex-related felony, which leads to the rational assumption that the applicant may engage in conduct in contravention to this chapter, from operating or being employed in a sexually oriented business for a period of ten years from the date of conviction.
(D) (1) The above findings recognize the potential adverse secondary effects that can occur by a physical concentration of sexually oriented businesses and/or by the existence of such establishments that are subject to only the limited regulations permitted under the Constitutions of the United States of America and the State of Michigan.
(2) The township recognizes that the only sexually oriented business in the township, that being an establishment operated by DV Saginaw, LLC, at 6530 Bay Road, Kochville Township, is a lawful non-conforming use under the provisions of the Kochville Township Zoning Code, and that in order to be able to obtain site plan approval that permitted it to demolish its then-current structure and erect an all-new building on its premises, and closer to residentially zoned and used property, all of which would have otherwise been lawfully precluded in light of its status as a non-conforming use, the property owner, MIC Limited, and Deja Vu of Saginaw, Inc. (the predecessor to DV Saginaw, LLC), agreed to a variety of building, construction, site plan and operational restrictions/requirements as specifically requested by Township officials, that could not have otherwise been lawfully imposed by the Township upon MIC Limited and/or Deja Vu of Saginaw, Inc., as a result of the protections found in the Constitutions of the United States of America and the State of Michigan.
(3) The township further acknowledges that in order to grant the site plan approval requested by MIC Limited, the Kochville Township Planning Commission was required to make specific and detailed findings in support of a conclusion that the granting of the site plan approval, which ultimately permitted MIC Limited and/or Deja Vu of Saginaw, Inc., to demolish their then-current structure and erect an all-new building on the premises, and closer to residentially zoned and used property, satisfied each and every one of the strict standards of the Kochville Township Zoning Code, and in particular that, among other things, it would not impede the normal and orderly development of surrounding properties for uses permitted in the Kochville Township Zoning Ordinance and that it otherwise was consistent with, furthered, and did not adversely affect, the health, safety, and welfare of the Township or of its citizens. In addition, in granting the site plan approval application filed by MIC Limited, the Kochville Township Planning Commission required MIC Limited and/or Deja Vu of Saginaw, Inc., as a condition for the granting of its approval, that they comply with the voluntary building and operational restrictions contained in the site plan approval application. Subsequent experience has verified and confirmed the findings made and conclusions reached by the Kochville Township Planning Commission in regard to the site plan approval application filed by MIC Limited.
(4) The township further acknowledges that the findings of the Kochville Township Planning Commission in regard to the site plan approval request sought by MIC Limited, predicated upon the voluntary restrictions/requirements agreed to by MIC Limited and by Deja Vu of Saginaw, Inc., in support of the application, which the township could not otherwise lawfully impose upon that establishment, and subsequent experience with regard to the operation of the establishment now owned by DV Saginaw, LLC, subject to those restrictions/requirements, are inconsistent with the findings above. As a result, the township recognizes that in the unique circumstances presented by DV Saginaw, LLC, the township cannot utilize the findings herein in order to justify regulations that would apply to that business.
(Ord. 11-007, passed 1-17-2012)