This section shall be known and may be sited as the Charter Township of Montrose Adult Entertainment Ordinance.
(A) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ADULT BOOKSTORE.
(a) An establishment that has as a substantial portion of its stock-in-trade and offers for sale, for any form of consideration, any 1 or more of the following:
1. Books, magazines, periodicals or other printed matter, or photographs, films, movies, motion pictures, video cassettes, slides, or other visual representations that are characterized by an emphasis on the depiction or description of specified anatomical areas; and/or
2. Instruments, devices, or paraphernalia designed for the use as part of, or in connection with, specified sexual activities.
(b) A use which has a display containing books, magazines, periodicals, slides, pictures, cassettes, or other printed or recorded material which has a significant portion of its content or exhibit matter or actions depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" or an establishment with a (substantial) segment or section devoted to the sale or display of the material.
ADULT CABARET. A nightclub, theater, or other establishment which features live performances by topless and/or bottomless dancers, "go-go" dancers, exotic dancers, strippers, or other similar entertainers, where a significant portion of the performances show, depict or describe "specified sexual activities" or "specified anatomical areas."
ADULT ENTERTAINMENT USES.
(a) Any use of land, whether vacant or combined with structures, vehicles or activities by which the property is devoted to the sale, display, exhibition, or viewing of books, magazines, films, photographs or other materials, distinguished or characterized by an emphasis on matter depicting, describing, or relating to human sex act, or by an emphasis on male or female genitals, buttocks, or female breasts.
(b) This shall include massage parlors, model studios and all forms of video or aural display.
ADULT MASSAGE PARLOR. Any place where for any form of consideration or gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic treatment or any other treatment or manipulation of the human body occurs as part of or in connection with "specified sexual activities" or where any person providing the treatment, manipulation or service related thereto exposes "specified anatomical areas."
ADULT MINI-MOTION PICTURE THEATER. An enclosed building with a capacity for less than 50 persons used for presenting material which has a significant portion of any motion picture or other display depicting, describing or presenting "specified sexual activities" or "specified anatomical areas."
ADULT MODEL STUDIO. Any place where, for any form of consideration or gratuity, figure models who display “specified anatomical areas” are provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by persons, paying the considerations or gratuities, except that this provision shall not apply to any bona fide art school or similar education institution.
ADULT MOTEL. A motel wherein matter, actions or other displays are presented which contain a significant portion depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas."
ADULT MOTION PICTURE ARCADE. Any place to which the public is permitted or invited wherein coin or slug operated or electronically or mechanically controlled still or motion picture machines, projectors, or other image producing devices are maintained to show images to 5 or fewer persons per machine at any 1 time, and where a significant portion of images so displayed depict, describe or relate to "specified sexual activities" or “specified anatomical areas.”
ADULT MOTION PICTURE THEATER. An enclosed budding with a capacity of 50 or more persons used for presenting material which has a significant portion of any motion picture or other display depicting or relating to "specified sexual activities" or "specified anatomical areas" for observation by patrons therein.
ADULT SEXUAL ENCOUNTER CENTER. Any business, agency, or person who, for any form of consideration or gratuity, provides a place where 3 or more persons, not all members of the same family may congregate, assemble or associate for the purpose of engaging in "specified sexual activities" or exposing "specified anatomical areas."
SPECIFIED ANATOMICAL AREAS. Specified anatomical areas means and included any 1 or more of the following:
(a) Less than completely covered human genitals, pubic region, buttocks, anus, or female breasts below a point immediately above the top of the areola; and/or
(b) Human male genitals in a discernible turgid state, even if completely and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES. Includes any 1 or more of the following:
(a) The fondling or erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
(b) Human sex acts, normal or perverted, actual or simulated, including but not limited to intercourse, oral copulation and sodomy;
(c) Human masturbation, actual or simulated;
(d) Human excretory functions as part of, or as related to, any of the activities described above; and/or
(e) Physical violence, bondage, mutilation, or rape, actual or simulated, as part or as related to, any of the activities described above.
SUBSTANTIAL PORTION. A use or activity accounting for more than 20% of any 1 or more of the following: stock-in-trade, display space, floor space, or viewing time, movie display time, or entertainment time measured per month.
(B) License.
(1) From and after the effective date of this chapter, no adult bookstore, adult motion picture theater, or massage parlor, hereinafter referred to as ADULT ENTERTAINMENT ESTABLISHMENTS, shall be operated or maintained in the Township of Montrose without first obtaining a license to operate issued by the Township of Montrose.
(2) A license may be issued only for 1 adult entertainment establishment located at a fixed and certain place. Any person, partnership, or corporation which desires to operate more than 1 adult entertainment establishment must have a license for each.
(3) No license or interest in a license may be transferred to any person, partnership, or corporation.
(4) All private schools and public schools located within the Township of Montrose are exempt from obtaining a license hereunder when instructing pupils in sex education as part of its curriculum.
(C) Application for license.
(1) Any person, partnership or corporation desiring to secure a license shall make application to the Township Clerk.
(2) The application shall be dated by the Township Clerk.
(3) A copy of the application shall be distributed promptly by the Township Clerk to the Township of Montrose Police Department and to the applicant.
(4) The application for a license shall be upon a form provided by the Township Clerk.
(5) An applicant for a license, which shall include all partners or limited partners of a partnership applicant, and all officers and directors of a corporate applicant and all stockholders including more than 5% of the stock of a corporate applicant, or any other person who is interested directly in the ownership or operation of the business, shall furnish the following information under oath:
(a) Name and address, including all aliases;
(b) Date of birth;
(c) Social security number;
(d) Michigan vehicle operator’s license number;
(e) Written proof that the individual is at least 18 years of age;
(f) All residential addresses of the applicant for the past 3 years;
(g) The applicant’s height, weight, color of eyes and hair;
(h) The business, occupation or employment of the applicant for 5 years immediately preceding the date of application;
(i) Whether the applicant previously operated in this or any other county, township, or state under an adult entertainment establishment license or similar business license; whether the applicant has ever had a like license revoked or suspended, the reason therefore, and the business entity or trade name under which the applicant operated that was subject to the suspension or revocation;
(j) All criminal statute, whether federal or state, or township ordinance violation convictions, forfeiture of bond or pleadings of nolo contendere on all criminal charges, except minor traffic violations;
(k) Fingerprints and 2 portrait photographs at least 2 inches by 2 inches of the applicant;
(l) The address of the adult entertainment establishment to be operated by the applicant; and
(m) If the applicant is a corporation, the application shall specify the name of the corporation, the date and state of incorporation, the name and address of the registered agent and the name and address of all shareholders owning more than 5% of the stock in the corporation and all officers and directors of the corporation.
(6) Within 21 days of receiving an application for a license, the Township Clerk shall notify the applicant whether application is granted or denied.
(7) Whenever an application is denied, the Township Clerk shall advise the applicant in writing of the reasons for the action.
(8) If the applicant requests a hearing within 10 days of receipt of notification of denial a public hearing shall be held within 30 days thereafter before the Township Board, as hereinafter provided.
(9) Failure or refusal of the applicant to give any information relevant to the investigation of the application or his or her refusal or failure to appear at any reasonable time and place for examination under oath regarding the application or his or her refusal to submit to or cooperate with any investigation required by this chapter shall constitute an admission by the applicant that he or she is ineligible for the license and shall be grounds for denial thereof by the Township Clerk.
(D) Standards for issuance of license.
(1) To receive a license to operate an adult entertainment establishment, an applicant must meet the following standards:
(a) If the applicant is an individual:
1. The applicant shall be at least 18 years of age;
2. The applicant shall not have been convicted of or pleaded nolo contendere to a felony or any crime involving moral turpitude, prostitution, obscenity, or other crime of a sexual nature in any jurisdiction within 5 years immediately preceding the date of the application; and
3. The applicant shall not have been found to have previously violated this chapter or a substantially similar ordinance within 5 years immediately preceding the date of the application.
(b) If the applicant is a corporation:
1. All officers, directors and stockholders required to be named under division (C)(5) shall be at least 18 years of age;
2. No officer, director or stockholder required to be named under division (C)(5) shall have been convicted of or pleaded nolo contendere to a felony or any crime involving moral turpitude, prostitution, obscenity, or other crime of a sexual nature in any jurisdiction within 5 years immediately preceding the date of the application; and
3. No officer, director, or stockholder required to be named under division (C)(5) shall have been found to have previously violated this chapter or a substantially similar ordinance within 5 years immediately preceding the date of the application.
(c) If the applicant is a partnership, joint venture, or any other type of organization where 2 or more persons have a financial interest:
1. All persons having a financial interest in the partnership, joint venture or other type of organization shall be at least 18 years of age; and
2. No person having a financial interest in the partnership, joint venture or other type of organization shall have been convicted of or pleaded nolo contendere to a felony or any crime involving moral turpitude, prostitution, obscenity, or other crime of a sexual nature in any jurisdiction within 5 years immediately preceding the date of the application.
(2) No license shall be issued unless the Township of Montrose Police Department has investigated the applicant’s qualifications to be licensed. The results of that investigation shall be filed in writing with the Township Clerk no later than 14 days after the date of the application.
(E) Fees. Fees are to be determined by the Charter Township of Montrose Board.
(F) Display of license or permit. The license shall be displayed in a conspicuous public place in the adult entertainment establishment.
(G) Renewal of license or permit.
(1) Every license issued pursuant to this chapter will terminate at the expiration of 1 year from the date of issuance, unless sooner revoked, and must be renewed before operation is allowed in the following year.
(2) Any operator desiring to renew a license shall make application to the Township Clerk.
(3) The application for renewal must be filed not later than 60 days before the license expires.
(4) The application for renewal shall be filed in triplicate with and dated by the Township Clerk.
(5) A copy of the application for renewal shall be distributed promptly by the Township Clerk to the Township of Montrose Police Department and to the business operator.
(6) The application for renewal shall be upon a form provided by the Township Clerk and shall contain the information and data, given under oath or affirmation, as is required for an application for a new license.
(7) A license renewal fee will be determined by the Charter Township of Montrose Board.
(8) If the Township of Montrose Police Department is aware of any information bearing on the operator’s qualifications, that information shall be filed in writing with the Township Clerk.
(H) Revocation or suspension of license.
(1) The Township Board can revoke or suspend a license or permit for any of the following reasons:
(a) Discovery that false or misleading information or data was given on any application or material facts were omitted from any application;
(b) The operator or any employee of the operator has violated any provision of this chapter of any rule or regulation adopted by the Township Board pursuant to this chapter; provided, however, that in the case of a first offense by an operator where the conduct was solely that of an employee, the penalty shall not exceed a suspension of 30 days if the Board shall find that the operator had no actual or constructive knowledge of the violation and could not by the exercise of due diligence have actual or constructive knowledge;
(c) The operator becomes ineligible to obtain a license or permit or the operator is convicted of, or pleads nolo contendere to, any felony or any crime involving moral turpitude, prostitution, obscenity or other crime of a sexual nature;
(d) Any cost or fee required to be paid by this chapter is not paid;
(e) Any intoxicating liquor or cereal malt beverage is served or consumed on the premises of the adult entertainment establishment; or
(f) The operator fails to maintain a special use permit for the site as required by this chapter, or fails to comply with conditions of the special use permit.
(2) The Board, before revoking or suspending any license or permit, shall give the operator at least 10 day’s written notice of the charges against him or her, and the opportunity for a public hearing before the Township Board, as hereinafter provided.
(a) Before the Township Board revokes or suspends a license issued herein the Township Board shall cause written notice to be sent by certified mail to the licensee or applicant affected, at the address stated in the license or application informing the person of the right to a hearing upon request.
(b) If the licensee does not request a hearing within 14 days of the date the notice was sent, the license may be forthwith revoked or suspended.
(c) If the licensee requests a hearing before the Township Board regarding the proposed revocation or suspension, the hearing shall be held with 21 days after the date of the written request.
(d) Any license issued by the township may be immediately suspended by the Township Supervisor or duly appointed township official if it is determined that the licensee has violated or someone at or upon the licensed location has violated the township ordinance or state law and that continued operation under the license is contrary to the public health, safety, and welfare.
(e) A licensee shall have the right to a hearing before the Township Board on any license suspension by the Township Supervisor and notice thereof shall be given in accordance with divisions (H)(2)(a) through (c).
(f) Both the township and the licensee shall be afforded a reasonable opportunity to present evidence on the issue at the hearing.
(g) Action taken by the Township Board shall be final and any fees hereunder shall not be refunded to the applicant or licensee.
(3) The transfer of a license or any interest in a license shall automatically and immediately revoke the license.
(4) Any operator whose license is revoked shall not be eligible to receive a license for 1 year from the date of revocation.
(5) No location or premises for which a license has been issued shall be used as an adult entertainment establishment for 6 months from the date of revocation of the license.
(I) Physical layout of adult entertainment establishment. Any adult entertainment establishment having available for customers, patrons or members, any booth, room, or cubicle for the private viewing of any adult entertainment must comply with the following requirements.
(1) Access. Each booth, room or cubicle shall be totally accessible to and from aisles and public areas of the adult entertainment establishment, and shall be unobstructed by any door, lock, or other control-type devices.
(2) Construction. Every booth, room or cubicle shall meet with the following construction requirements:
(a) Each booth, room or cubicle shall be separated from adjacent booths, rooms and cubicles and any non-public areas by a wall;
(b) Have at least 1 side totally open to a public lighted aisle so that there is an unobstructed view at all times of anyone occupying same;
(c) All walls shall be solid and without any openings, extended from the floor to a height of not less than 6 feet and be fight colored, non-absorbent, smooth textured, and easily cleanable;
(d) The floor must be light colored, non-absorbent, smooth textured and easily cleanable; and
(e) The lighting level of each booth, room or cubicle, when not in use shall be a minimum of 10 foot candles at all times, as measured from the floor.
(3) Occupants.
(a) Only 1 individual shall occupy a booth, room, or cubicle at any time.
(b) No occupant of same shall engage in any type of sexual activity, cause any bodily discharge or fitter while in the booth.
(c) No individual shall damage or deface any portion of the booth.
(J) Responsibilities of the operator.
(1) The operator shall maintain a register of all employees, showing the name and aliases used by the employee, home address, age, date of birth, sex, height, weight, color of hair and eyes, phone numbers, social security numbers, date of employment and termination, and duties of each employee. The above information on each employee shall be maintained in the register on the premises for a period of 3 years following termination.
(2) Daily hours of operation of any adult entertainment establishment shall be limited to the period of time from 8:00 a.m. to 2:00 a.m.
(3) The operator shall make the register of employees available immediately for inspection by police upon demand of a member of the Township of Montrose Police Department at all reasonable times.
(4) No merchandise or pictures of the products or entertainment on the premises shall be displayed in window areas or any areas where they can be viewed from a public sidewalk adjacent to the establishment.
(5) Any individual viewing booths, entertainment rooms, or similar cubicles designed or used for individuals to view specified anatomical areas or to view specified sexual activities shall not be completely enclosed from the common areas, hallways, or other areas of the adult entertainment business.
(6) No employee or patron under 18 years of age shall be allowed on the premises of an adult entertainment establishment.
(7) No intoxicating liquor or cereal malt beverage shall be served or consumed on the premises of an adult entertainment establishment.
(8) The operator shall maintain the premises in a clean and sanitary manner at all times.
(9) Every act or omission by an employee constituting a violation of the provisions of this chapter shall be deemed the act or omission of the operator if the act or omission occurs either with the authorization, knowledge, or approval of the operator, or as a result of the operator’s negligent failure to supervise the employee’s conduct, and the operator shall be punishable for the act or omission in the same manner as if the operator committed the act or caused the omission.
(10) Any act or omission of any employee constituting a violation of the provisions of this chapter shall be deemed the act or omission of the operator for purposes of determining whether the operator’s license shall be revoked, suspended or renewed.
(11) No employee of an adult entertainment establishment shall allow any minor to loiter around or to frequent an adult entertainment establishment or to allow any minor to view adult entertainment as defined herein.
(12) (a) The operator shall maintain at least 10 foot candles of light in the public portions of the establishment, including aisles, at all times measured from the floor.
(b) However, if a lesser level of illumination in the aisles shall be necessary to enable a patron to view the adult entertainment in a booth, room or cubicle adjoining an aisle, a lesser amount of illumination may be maintained in the aisles, provided, however, at no time shall there be less than 1 foot candle of illumination in the aisles, as measured from the floor.
(13) The operator shall ensure compliance of the establishment and its patrons with the provisions of this chapter.
(Ord. 99, passed 11-18-1996, § 22.28; Am. Ord. 116, passed 1-18-1999) Penalty, see § 153.999