(A) Purpose: The provisions of this section do not prohibit adult establishments from having a reasonable opportunity to locate in the city. This section is not for the purpose of, nor is it intended to, impose a limitation or restriction on the content of any communicative materials, including adult oriented materials. Similarly, it is neither the intent nor effect of this section to restrict or deny access by adults to adult oriented materials protected by the first amendment or to deny access by distributors and exhibitors of adult oriented entertainment to their intended market.
(B) Definitions:
ADULT ENTERTAINMENT: 1. Any business that devotes a substantial or significant portion of its inventory, stock in trade, or publicly displayed merchandise, or devotes a substantial or significant portion of its floor area (not including storerooms, stock areas, bathrooms, basements, or any portion of the business not open to the public) to, or derives a substantial or significant portion of its gross revenues from items, merchandise, devices or other materials distinguished or characterized by an emphasis on material depicting, exposing, simulating, describing, or relating to specified sexual activities or specified anatomical areas; or
2. Any business that engages in any "adult use" as defined in this subsection.
ADULT USE: Any of the activities and businesses described below:
Adult Body Painting Studio: An establishment or business that provides the service of applying paint, ink, or other substance, whether transparent or nontransparent, to the body of a patron when the person is nude.
Adult Bookstore: An establishment or business used for the barter, rental, or sale of items consisting of printed matter, pictures, slides, records, audiotape, videotape, movies, or motion picture film if a substantial or significant portion of its inventory, stock in trade, or publicly displayed merchandise consists of, or if a substantial or significant portion of its floor area (not including storerooms, stock areas, bathrooms, basements, or any portion of the business not open to the public) is devoted to, or if substantial or significant portions of its gross revenues is derived from items, merchandise depicting, exposing, simulating, describing, or relating to specified sexual activities or specified anatomical areas.
Adult Cabaret: A business or establishment that provides dancing or other live entertainment distinguished or characterized by an emphasis on: 1) the depiction of nudity, specified sexual activities or specified anatomical areas; or 2) the presentation, display, or depiction of matter that seeks to evoke, arouse, or excite sexual or erotic feelings or desire.
Adult Companionship Establishment: A business or establishment that provides the service of engaging in or listening to conversation, talk, or discussion distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
Adult Conversation/Rap Parlor: A business or establishment that provides the services of engaging in or listening to conversation, talk, or discussion distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
Adult Health/Sport Club: A health/sport club that is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
Adult Hotel Or Motel: A hotel or motel that presents material distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas.
Adult Massage Parlor/Health Club: A massage parlor or health club that provides massage services distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
Adult Modeling Studio: A business or establishment that provides live models who, with the intent of providing sexual stimulation or sexual gratification, engage in specified sexual activities or display specified anatomical areas while being observed, painted, painted upon, sketched, drawn, sculptured, photographed, or otherwise depicted.
Adult Motion Picture Arcade: Any place to which the public is permitted or invited where coin or slug operated or electronically, electrically, or mechanically controlled or operated still or motion picture machines, projectors, or other image producing devices are used to show images to five (5) or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas.
Adult Motion Picture Theater: A motion picture theater that as a prevailing practice presents material distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas for observation by patrons.
Adult Novelty Business: An establishment or business that devotes a substantial or significant portion of its inventory, stock in trade, or publicly displayed merchandise or devotes a substantial or significant portion of its floor area (not including storerooms, stock areas, bathrooms, basements, or any portion of the business not open to the public) to, or derives a substantial or significant portion of its gross revenues from items, merchandise, or devices that are distinguished or characterized by an emphasis on material depicting or describing specified sexual activities or specified anatomical areas, or items, merchandise or devices that stimulate specified sexual anatomical areas, or are designed for sexual stimulation.
Adult Sauna: A sauna that provides a steam bath or heat bathing room used for the purpose of bathing, relaxation or reducing, if the service provided by the sauna is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
Adult Steam Room/Bathhouse Facility: A building or portion of a building used for providing a steam bath or heat bathing room used for the purpose of pleasure, bathing, relaxation, or reducing, if the service provided by the steam room/bathhouse facility is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
NUDE OR SPECIFIED ANATOMICAL AREAS: 1. Less than completely and opaquely covered human genitals, pubic regions, buttocks, anuses, or female breasts below a point immediately above the top of the areola; and
2. Human male genitals in the discernibly turgid state, even if completely and opaquely covered.
PREMISES: The real property and all building and structures located on the real property.
SPECIFIED SEXUAL ACTIVITIES: 1. An act of sexual intercourse, normal or perverted, actual or simulated, including genital-genital, anal-genital, or oral-genital intercourse, whether between human beings or between a human being and an animal, human being and an inanimate object;
2. Sadomasochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in undergarments or in a revealing costume or the condition of being fettered, bound, or otherwise physically restricted on the part of one so clothed;
3. Masturbation or lewd exhibition of the genitals including any explicit, close up representation of a human genital organ clothed or unclothed; and
4. Physical contact or stimulated physical contact with the clothed or unclothed pubic areas or buttock of a human male or female, or breasts of a female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.
SUBSTANTIAL OR SIGNIFICANT PORTION: Twenty five percent (25%) or more.
(C) Requirements:
1. Other Laws: No adult establishment shall engage in any activity or conduct or permit any other person to engage in any activity or conduct in the establishment that is prohibited by any ordinance of the city of Momence, the laws of the state of Illinois, or the United States of America. Nothing in this section shall be construed as authorizing or permitting conduct that is prohibited or regulated by other statutes or ordinances, including, but not limited to, statutes or ordinances prohibiting the exhibition, sale, or distribution of obscene material generally, or the exhibition, sale, or distribution of specified materials to minors.
2. Existing Adult Establishments: Except as otherwise provided in this section, existing adult establishments must comply with all requirements of this section immediately upon its effective date.
3. Hours: No adult establishment shall be open to the public from the hours of one o'clock (1:00) A.M. until eleven o'clock (11:00) A.M. weekdays and Saturdays, any time after one o'clock (1:00) A.M. on Sundays, or at any time on national holidays.
(D) Business Regulations: Adult establishments are subject to the following business regulations:
1. An adult establishment must prevent off site viewing of its merchandise or any materials depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" by any visual or auditory media, including display, decoration, sign, show window, or store window, sound transmission or other means.
2. Adult establishments shall not sell or dispense intoxicating liquor or 3.2 percent malt liquor nor shall the adult establishment be located in a building or in or on a premises that contains a business that sells or dispenses intoxicating liquor or 3.2 percent malt liquor.
3. The sale and consumption of alcohol is prohibited on the premises of an adult establishment, including, but not limited to, any parking areas or lots that are owned or leased by the adult establishment or its owner, or used by patrons when they are at the adult establishment.
4. All entrances to an adult establishment, with the exception of emergency fire exits that are not usable by patrons to enter the business, shall be visible from a public right of way.
5. The layout of any display areas shall be designed so that the management of the adult establishment and any law enforcement personnel inside the store can observe all patrons while they have access to any merchandise offered for sale or viewing including, but not limited to, books, magazines, photographs, videotapes, or any other material, or any live dancers or entertainers.
6. Illumination of the exterior of the premises shall be adequate to observe the location and activities of all persons on the exterior premises.
7. Signs for adult establishments shall not contain representational depiction of an adult nature or graphic descriptions of the adult theme of the operation. An adult establishment must prominently display at the entrance of the business, or no more than two feet (2') of the door opening device of the establishment, a sign that states:
This business sells or displays material containing adult themes. Persons under eighteen (18) years of age shall not enter.
The sign must contain letters between three-eighths inch (3/8") and two inches (2") in height.
8. No minor shall be permitted on the premises of an adult establishment. Adult goods or materials may not be offered, sold, transferred, conveyed, given or bartered to a minor, or displayed in a fashion that allows them to be viewed by a minor, whether or not the minor is on the licensed premises.
9. The following additional conditions apply to adult cabarets:
(a) No dancer, live entertainer or performer shall be under eighteen (18) years old.
(b) All dancing or live entertainment shall occur on a platform intended for that purpose and which is raised at least two feet (2') from the level of the floor.
(c) No dancer or performer shall fondle, caress, or touch any patron and no patron shall fondle, caress, or touch any dancer or performer.
10. No person may be nude on the premises of any adult establishment.
11. It is unlawful for any person or entity to own, lease, rent, manage or operate an adult establishment without a valid license issued by the city pursuant to this section. (Ord. 662, 9-21-2009)
12. Within ten (10) working days of the effective date hereof, any existing adult establishment must apply for a license from the city. Failure to apply for a license is a violation of this section and is subject to penalty under section 33 under this act. An existing adult establishment may continue to operate pending review of the license application by the city. (Ord. 675, 4-5-2010)
13. An application for a license must be made on a form provided by the city. The completed application must contain the following information:
(a) All Applicants: For all applicants:
(1) Whether the applicant is a natural person, corporation, partnership, or other form of organization.
(2) The legal description of the premises to be licensed, along with a sketch or diagram showing the floor plan of the premises. The floor plan of the premises shall detail all internal operations and activities, including a statement of the total floor space occupied by the business. The floor plan need not be professionally prepared but must 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").
(3) The name and street address of the business. If the business is to be conducted under a designated name, or style other than the name of the applicant, a certified copy of the certificate required by Illinois statute, shall be submitted.
(4) Whether the applicant has had a previous adult establishment license suspended or revoked.
(b) Applicants Who Are Natural Persons: If the applicant is a natural person:
(1) The name, place, and date of birth, street, city and mailing address, and phone number of the applicant.
(2) Whether the applicant has ever used or has been known by a name other than the applicant's name, and if so, the name or names used and information concerning dates and places where used.
(3) The street and city addresses at which the applicant has lived during the preceding two (2) years.
(4) The type, name, and location of every business or occupation in which the applicant has been engaged during the preceding two (2) years and name(s) and address(es) of the applicant's employer(s) and partner(s), if any, for the preceding two (2) years.
(5) Whether the applicant has ever been convicted of a gross misdemeanor or felony relating to sex offenses, obscenity offenses, or adult establishments.
(c) Applicants That Are Partnerships: If the applicant is a partnership:
(1) The name(s) and address(es) of the partnership, the name(s) and address(es) of all partners and all of the information concerning each partner that is required of applicants in subsection (D)13(b) of this section.
(2) Whether the partnership is general or limited.
(3) A true copy of the partnership agreement shall be submitted with the application. If the partnership is required to file a certificate as to a trade name pursuant to Illinois statute, a certified copy of the certificate shall be attached to the application.
(d) Corporate Or Other Applicants: If the applicant is a corporation or other organization, or other entity requiring registration under the laws of the state of Illinois:
(1) The name of the corporation or business form, and if incorporated, the date and state of incorporation.
(2) A true copy of the certificate of incorporation, articles of incorporation or association agreement and bylaws shall be attached to the application. If the applicant is a foreign corporation, a certificate of authority as required by Illinois statute, shall be attached. If the entity is a limited liability company, then true and accurate copies of the articles of organization and any membership agreements shall be attached to the application.
(3) The name of the manager(s), proprietor(s), or other agent(s) in charge of the business and all of the information concerning each manager, proprietor or agent that is required of the applicants in subsection (D)13(b) of this section.
(4) Accurate and complete business records showing the names, addresses, and dates of birth of all officers, directors and controlling stockholders for the business.
(5) The name of the registered corporate agent and the address of the registered office for service of process.
14. Changes in the information provided on the application or provided during the investigation must be brought to the attention of the city by the applicant or licensee. If such a change takes place during the investigation, it must be reported to the city clerk in writing. A failure by an applicant or licensee to report such a change may result in a denial or revocation of a license.
15. The city will issue a license to an applicant within thirty (30) days of the application unless one or more of the following conditions exist:
(a) The applicant is under eighteen (18);
(b) The applicant failed to supply all of the information required on the license application;
(c) The applicant gives false, fraudulent, or untruthful information on the license application;
(d) The applicant has been convicted of a misdemeanor, gross misdemeanor or felony relating to sex offenses, obscenity offenses, or adult establishments;
(e) The adult establishment is not in full compliance with this code and all provisions of state and federal law;
(f) The applicant has not paid the required license fee;
(g) The applicant has been denied a license by the city or any other Illinois municipal corporation to operate an adult establishment, or such license has been suspended or revoked, within the preceding twelve (12) months;
(h) The applicant is not the proprietor of the establishment for which the license is issued; or
(i) The adult establishment premises holds an intoxicating liquor, beer or wine license.
16. An applicant may qualify for a license:
(a) After one year has elapsed in the case of a previous license revocation;
(b) After two (2) years have elapsed since the date of conviction or the date of release from confinement, whichever is later, in the case of a misdemeanor or gross misdemeanor offense;
(c) After five (5) years have elapsed since the date of the last conviction or the date of release from confinement for the conviction, whichever is later, in the case of a felony offense; or
(d) After five (5) years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is later, if the conviction is of two (2) or more class C misdemeanors or greater offenses or combination of class C misdemeanor, class B, or class A misdemeanor offenses occurring within any twenty four (24) month period.
17. An adult establishment license expires at the end of the calendar year.
18. A licensee may renew a license by completing an application as provided in subsection (D)13 of this section. The applicant will be allowed to continue business until the city has determined that the applicant meets the criteria for renewal of the license. If the city denies the renewal, the applicant shall not be issued a license for one year from the date of denial.
19. The city may suspend a license for a period not to exceed thirty (30) days if it determines that the licensee or an employee of a licensee has:
(a) Violated or is not in compliance with any provision of this section;
(b) Allowed or engaged in the sale or use of alcoholic beverages while on the adult establishment premises other than at an adult hotel or motel;
(c) Refused to allow an inspection of the adult establishment as authorized by this section; or
(d) Knowingly permitted unlawful gambling by any person on the adult establishment premises.
20. A suspension by the city shall be preceded by written notice to the licensee and a public hearing. The notice shall give at least ten (10) days' notice of the time and place of the hearing and shall state the nature of the abuses against the licensee. The notice may be served upon the licensee personally, or by leaving the same at the licensed business premises with the person in charge thereof, or by mailing the notice by U.S. mail to the last known address of the owner or agent authorized to receive legal notices for the business, as listed on its license application.
21. The city may revoke a license if a cause of suspension in subsection (D)19 of this section occurs and the license has been suspended at least once before within the preceding twelve (12) months.
22. The city may revoke a license if it determines that:
(a) A licensee gave false or misleading information in the material submitted to the city during the application process;
(b) A licensee or an employee has knowingly allowed possession, use, or sale of controlled substances on the premises;
(c) A licensee or an employee has knowingly allowed prostitution on the premises;
(d) A licensee or an employee knowingly operated the adult establishment during a period of time when the licensee's license was suspended;
(e) A licensee has been convicted of an offense listed in subsection (D)15(d) of this section for which the time period required in subsection (D)16 of this section has not elapsed; or
(f) Except in the case of an adult hotel or motel, a licensee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation or masturbation to occur in or on the licensed premises.
23. The fact that a conviction is being appealed shall have no effect on the revocation of the license.
24. When the city revokes a license, the revocation shall continue for one year and the licensee shall not be issued an adult establishment license for one year from the date revocation became effective. If, subsequent to revocation, the city finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least ninety (90) days have elapsed since the date the revocation became effective. If the license is revoked due to a criminal conviction under subsection (D)15(d) of this section, an applicant may not be granted another license until the appropriate number of years required under subsection (D)16 of this section, has elapsed.
25. Nonrenewals, suspensions and revocations of an adult establishment license are governed by the following:
(a) In the event that the city proposes to not renew, to suspend or to revoke a license, the city will notify the licensee in writing of the basis for the action. The council will hold a hearing for the purpose of determining whether to not renew, to suspend, or to revoke the license. The hearing must be within thirty (30) days of the date of the notice. The city council must determine whether to not renew, to suspend or to revoke a license within thirty (30) days after the close of the hearing or within sixty (60) days of the date of the notice, whichever is sooner. The council must notify the licensee of its decision within that period.
(b) If the council determines to suspend or revoke a license, the suspension or revocation is not effective until fifteen (15) days after notification of the decision to the licensee. If, within that fifteen (15) days, the licensee files and serves an action in state or federal court challenging the council's action the suspension or revocation is stayed until the conclusion of such action.
(c) If the city council determines not to renew a license, the licensee may continue its business for fifteen (15) days after receiving notice of such nonrenewal, if the licensee files and serves an action in state or federal court within the fifteen (15) days for the purpose of determining whether the city acted properly, the licensee may continue in business until the conclusion of the action.
26. After denial of an application or a renewal of an application, or suspension or revocation of any license, the applicant or licensee may seek prompt judicial review of such action in any court of competent jurisdiction. The court shall promptly review such action.
27. The license, if granted, must state on its face the name of the person or entity to whom it is granted, the expiration date, and the address of the adult establishment. The license must be posted in a conspicuous place at or near the entrance to the adult establishment. (Ord. 662, 9-21-2009)
28. The annual license fee for adult establishments is three thousand dollars ($3,000.00). If eight (8) months of any current licensing year have elapsed when an application is made, the fee shall be reduced to one-half (1/2) the regular amount. The fee is nonrefundable. (Ord. 675, 4-5-2010)
29. An applicant or licensee shall permit health officials, representatives of the police department, fire department, and building inspector, to inspect the premises of an adult establishment for the purpose of ensuring compliance with the law, at any time it is occupied or open for business. The licensee is at all times responsible for the conduct, activity and operation of the business.
30. Refusal to permit a lawful inspection of the premises by health officials, representatives of the police department, fire department, or building inspector at any time it is occupied or open for business is a violation of this section. Refusal to permit inspections may result in nonrenewal, suspension or revocation of the license.
31. The provisions of this section do not apply to areas of an adult hotel or motel that are currently being rented by a customer for use as a permanent or temporary habitation. "Temporary habitation" is defined as a period of time of at least twelve (12) hours.
32. A licensee shall not transfer this license to another, nor shall a licensee operate an adult establishment under the authority of a license at any place other than the address designated in the application.
33. Any person violating any provision of this section shall be guilty of a misdemeanor, and upon conviction shall be subject to the penalties for a misdemeanor as prescribed by state law. Each day the violation continues shall be considered a separate misdemeanor offense punishable by a separate misdemeanor penalty. The city may also enforce any provision of this section by mandamus, injunction or any other appropriate civil remedy in any court of competent jurisdiction. (Ord. 662, 9-21-2009)