§ 115.02 DEFINITIONS.

(A) Purpose. It is the purpose of this chapter to regulate sexually oriented businesses and related activities to promote the health, safety, morals, and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the city. 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 not the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene materials.

(B) Findings. Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the City Council, and on findings incorporated in the cases of City of Erie v. Pap’s A.M., 529 U.S. 277, 146 L.Ed.2d 265, 120 S.Ct. 1382 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Arcara v. Cloud Books, Inc., 478 U.S. 697, (1986); Iacobucci v. City of Newport, Ky., 479 U.S. 92 (1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); California v. LaRue, 409 U.S. 109 (1972); United States v. O’Brien, 391 U.S. 367 (1968); DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir.1997); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir.1986); 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); and N.W. Enterprises v. City of Houston, 27 F.Supp.2d 754 (S.D. Tex.1998)), as well as studies conducted in other cities including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and findings reported in the Final Report of the Attorney General’s Commission on Pornography (1986), the Report of the Attorney General’s Working Group On the Regulation Of Sexually Oriented Businesses (June 6, 1989, State of Minnesota), and statistics obtained from the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, the City Council finds that:

(1) Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the operators of the establishments. Further, there is presently no mechanism to make owners of these establishments responsible for the activities that occur on their premises.

(2) Crime statistics show that all types of crimes, especially sex-related crimes, occur with more frequency in neighborhoods where sexually oriented businesses are located. See, e.g., Studies of the cities of Phoenix, Arizona; Indianapolis, Indiana; and Austin, Texas.

(3) Sexual acts, including masturbation, and oral and anal sex, occur at sexually oriented businesses, especially those which provide private or semi-private booths or cubicles for viewing films, videos, or live sex shows. See, e.g., California v. LaRue, 409 U.S. 109, 111 (1972); See also Final Report of the Attorney General’s Commission on Pornography (1986) at 377.

(4) Offering and providing such booths and/or cubicles encourages such activities, which creates unhealthy conditions. See, e.g., Final Report of the Attorney General’s Commission on Pornography (1986) at 376-77.

(5) Persons frequent certain adult theaters, adult arcades, and other sexually oriented businesses, for the purpose of engaging in sex within the premises of such sexually oriented businesses. See, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 697, 698 (1986); see also Final Report of the Attorney General’s Commission on Pornography (1986) at 376-77.

(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, Non A, Non B amebiasis, salmonella infections, and shigella infections. See, e.g., Study of Fort Meyers, Florida.

(7) As of June, 2001, the total number of reported cases of AIDS in the United States caused by the immunodeficiency virus (HIV) was 793,025. See, e.g., Statistics of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention at http://www.cdc.gov.

(8) As of December, 2001, there have been more than 26,200 reported cases of AIDS in the State of Illinois. See http://www.idph.state.il.us/public- /hb/hbaids.htm.

(9) The total number of cases of genital chlamydia trachomatis infections in the United States reported in 2000 was 702,093, a 6% increase over the year 1999. See, e.g., Statistics of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention at http://www.cdc.gov.

(10) The total number of cases of early (less than one year) syphilis in the United States reported during the four year period 1996-2000 was 212,672. See, e.g., Statistics of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention at http://www.cdc.gov.

(11) The number of cases of gonorrhea in the United States reported annually remains at a high level, with a total of 1,730,911 cases reported during the period 1996-2000. See, e.g. Statistics of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention at http://www.cdc.gov.

(12) The surgeon general of the United States in his report of October 22, 1986, advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug use, exposure to infected blood and blood components, and from an infected mother to her newborn.

(13) According to the best scientific evidence available, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts. See, e.g. Findings of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention at http://www.cdc.gov.

(14) Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy, and, in part, because of the unregulated nature of the activities and the failure of the owners and operators of the facilities to self-regulate those activities and maintain those facilities. See, e.g., Final Report of the Attorney General’s Commission on Pornography (1986) at 377.

(15) Numerous studies and reports have determined that bodily fluids, including semen and urine, are found in the areas of sexually oriented businesses where persons view “adult” oriented films. See, e.g., Final Report of the Attorney General’s Commission on Pornography (1986) at 377.

(16) Adult uses have operational characteristics that should be reasonably regulated in order to protect substantial governmental concerns.

(17) Nude dancing in adult establishments encourages prostitution, increases sexual assaults, and attracts other criminal activity. See, e.g., Barnes v. Glen Theatre, 501 U.S. 560, 583 (1991).

(18) Nude dancing in adult establishments increases the likelihood of drug-dealing and drug use. See, e.g., Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1056 (9th Cir. 1986).

(19) Alcohol consumption in adult establishments increases the likelihood of crime, illegal drug use, and illegal sexual activity, and encourages undesirable behavior that is not in the interest of the public health, safety, and welfare. See, e.g., Artistic Entertainment, Inc. v. City of Warner Robins, 223 F.3d 1306, 1309 (11th Cir.2000); Sammy’s Ltd. v. City of Mobile, 140 F.3d 993, 996 (11th Cir.1998), cert. denied, 529 U.S. 1052, 146 L.Ed.2d 459, 120 S.Ct. 1553 (2000). The findings noted in divisions (B)(1) through (B)(18) raise substantial governmental concerns.

(20) Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns.

(21) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and operators of sexually oriented businesses. Further, such licensing procedure will place a heretofore non-existent incentive on 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 city. 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.

(22) Removal of doors on adult booths and requiring sufficient lighting on the premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult establishments.

(23) 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.

(24) It is desirable, in the prevention of crime and the spread of communicable diseases, to obtain a limited amount of information regarding certain employees who may engage in the conduct this chapter is designed to prevent, or who are likely to be witnesses to such activity.

(25) When more than one sexually oriented business use occupies the same location or business address, the secondary effects caused by such businesses are increased. Secondary effects are eliminated or controlled to a greater degree when only a single sexually oriented business use is allowed to occupy the same location.

(26) The general welfare, health, morals, and safety of the citizens of this city will be promoted by enactment of this chapter.

(Ord. 0-2003-13, passed 10-29-03)

§ 115.02 DEFINITIONS.

ADULT ARCADE. Any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, videos, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of “specified sexual activities” or “specified anatomical areas.”

ADULT BOOKSTORE or ADULT VIDEO STORE.

(1) A commercial establishment that, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:

(a) Books, magazines, periodicals or other printed matter, or photographs, films, motion picture, video cassettes or video reproductions, slides, or other visual representations that are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas;” or

(b) Instruments, devices, or paraphernalia that are designed for use in connection with “specified sexual activities.”

(2) A principal business purpose exists if materials offered for sale or rental depicting or describing “specified sexual activities” or “specified anatomical areas” generate 20% or more of the business’s income, or account for 20% or more of inventory, or occupy 20% or more of total floor space. A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing “specified sexual activities” or “specified anatomical areas” and still be categorized as ADULT BOOKSTORE or ADULT VIDEO STORE. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an ADULT BOOKSTORE or ADULT VIDEO STORE so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials that depict or describe “specified sexual activities” or “specified anatomical areas.”

ADULT CABARET. A nightclub, bar, restaurant, café, or similar commercial establishment that regularly, commonly, habitually, or consistently features:

(1) Persons who appear in a state of nudity or semi-nudity; or

(2) Live performances that are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities;” or

(3) Films, motion pictures, video cassettes, slides, photographic reproductions, or other image producing devices that are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas;” or

(4) Persons who engage in “exotic” or erotic dancing or performances that are intended for the sexual interests or titillation of an audience or customers.

ADULT MOTEL. A hotel, motel or similar commercial establishment that:

(1) Offers accommodation to the public for any form of consideration and provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions that are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas;” and has a sign visible from the public right of way that advertises the availability of this adult type of photographic reproductions; or

(2) Offers a sleeping room for rent for a period of time that is less than 24 hours; or

(3) Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 24 hours.

ADULT MOTION PICTURE THEATER. A commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly, commonly, habitually, or consistently shown that are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.”

ADULT THEATER. A theater, concert hall, auditorium, or similar commercial establishment that regularly, commonly, habitually, or consistently features persons who appear, in person, in a state of nudity and/or semi-nudity, and/or live performances that are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities.”

DIRECTOR. The City Council and such employee(s) of the city as it may designate to perform the duties of the director under this chapter.

EMPLOYEE. A person who performs any service on the premises of a sexually oriented business on a full time, part time, contract basis, or independent basis, whether or not the person is denominated an employee, independent contractor, agent, or otherwise, and whether or not the person is paid a salary, wage, or other compensation by the operator of the business. EMPLOYEE does not include a person exclusively on the premises for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises, nor does EMPLOYEE include a person exclusively on the premises as a patron or customer.

ESCORT. A person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.

ESCORT AGENCY. A person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip, or other consideration.

ESTABLISHMENT. Includes any of the following:

(1) The opening or commencement of any sexually oriented business as a new business;

(2) The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;

(3) The additions of any sexually oriented business to any other existing sexually oriented business; or

(4) The relocation of any sexually oriented business; or

(5) A sexually oriented business or premises on which the sexually oriented business is located.

LICENSEE. A person in whose name a license has been issued, as well as the individual listed as an applicant on the application for a license.

LICENSED DAY-CARE CENTER. A facility licensed by the State of Illinois, whether situated within the city or not, that provides care, training, education, custody, treatment or supervision for more than 12 children under 14 years of age, where such children are not related by blood, marriage or adoption to the owner or operator of the facility, for less than 24 hours a day, regardless of whether or not the facility is operated for a profit or charges for the services it offers.

LIVE THEATRICAL PERFORMANCE. A play, skit, opera, ballet, concert, comedy, or musical drama.

NUDE MODEL STUDIO. Any place where a person who appears in a state of nudity or displays “specified anatomical areas” is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons for consideration.

NUDITY or a STATE OF NUDITY. The appearance of a human bare buttock, anus, anal cleft or cleavage, pubic area, male genitals, female genitals, or vulva, with less than a fully opaque covering; or a female breast with less than a fully opaque covering of any part of the areola; or human male genitals in a discernibly turgid state even if completely and opaquely covered.

PERSON. An individual, proprietorship, partnership, corporation, association, or other legal entity.

PREMISES. The real property upon which the sexually oriented business is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the sexually oriented business, the grounds, private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control, or supervision of the licensee, as described in the application for a business license pursuant to § 115.04;

RESIDENCE. A place where a person or persons actually live(s) or has or have a home, whether it is a single unit such as a dwelling house or mobile home or whether it is in a multi-unit building such as an apartment.

SEMI-NUDE or SEMI-NUDITY. The appearance of the female breast below a horizontal line across the top of the areola at its highest point. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel provided the areola is not exposed in whole or in part.

SEXUAL ENCOUNTER CENTER.

(1) A business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration:

(a) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or

(b) Activities between persons of the opposite sex and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nudity.

(2) A principal business purpose exists if the services offered are intended to generate business income.

SEXUALLY ORIENTED BUSINESS. An adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.

SPECIFIED ANATOMICAL AREAS.

(1) The human male genitals in a discernibly turgid state, even if fully and opaquely covered;

(2) Less than completely and opaquely covered human genitals, pubic region, buttocks, or a female breast below a point immediately above the top of the areola.

SPECIFIED SEXUAL ACTIVITIES. Includes any of the following:

(1) The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts, whether covered or uncovered;

(2) Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;

(3) Masturbation, actual or simulated; or

(4) Excretory functions as part of or in connection with any of the activities set forth in (1) through (3) above.

SUBSTANTIAL ENLARGEMENT. The increase in floor areas occupied by the business by more than 25%, as the floor areas existed on August 25, 2003.

TRANSFER OF OWNERSHIP OR CONTROL of a sexually oriented business means and includes any of the following:

(1) The sale, lease, or sublease of the business;

(2) The transfer of securities that form a controlling interest in the business, whether by sale, exchange, or similar means; or

(3) The establishment of a trust, gift, or other similar legal device that transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.

(Ord. 0-2003-13, passed 10-29-03)

§ 115.03 CLASSIFICATION.

Sexually oriented business uses are classified as follows:

(A) Adult arcades; or

(B) Adult bookstores or adult video stores; or

(D) Adult motion picture theaters; or

(E) Adult theaters; or

(F) Adult cabarets; or

(G) Escort agencies; or

(H) Nude model studios; or

(I) Sexual encounter centers.

(Ord. 0-2003-13, passed 10-29-03)

§ 115.04 LICENSE REQUIRED.

(A) It shall be unlawful:

(1) For any person to operate a sexually oriented business without a valid sexually oriented business operator’s license (“operator’s license”) issued by the Director pursuant to this chapter; or

(2) For any person who operates a sexually oriented business to employ a person to work and/or perform services on the premises of the sexually oriented business, if such employee is not in possession of a valid sexually oriented business employee license (“employee license”) issued to such employee by the Director pursuant to this chapter; or

(3) For any person to obtain employment with a sexually oriented business if such person is not in possession of a valid sexually oriented business employee license issued to such person by the Director pursuant to this chapter.

(4) It shall be a defense to divisions (A)(2) and (A)(3) if the employment is of limited duration and for the sole purpose of repair and/or maintenance of machinery, equipment, or the premises.

(B) An application for a sexually oriented business operator’s license must be made on a form provided by the city. The application must be submitted to the City Clerk and shall be marked by the City Clerk with the date and time of receipt. The application shall be subject to approval or denial by the Director. The application form shall request and the applicant shall be required to provide the information described in division (F) herein. The application form, must be accompanied by the application fee and by a sketch or a diagram showing the configuration of the premises, including all doors, entrances, exits and the fixed structural internal features of the premises, the interior rooms, walls, partitions, stages, performance areas, hallways, restrooms, dressing rooms, and other rooms showing each designated area where a patron(s) is not permitted access together with a statement of total floor space occupied by the business. The sketch or diagram 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. If the application is subject to § 115.19, the premises must be inspected by the Director prior to the issuance of the license.

(D) All applicants for a license must be qualified according to the provisions of this chapter. The application may request, and the applicant shall provide, such information reasonably necessary to enable the city to determine whether the applicant meets the qualifications established under this chapter. The applicant has an affirmative duty to supplement an application with new information received subsequent to the date the application was deemed completed.

(E) If a person who wishes to own or operate a sexually oriented business is an individual, he or she must sign the application for an operator’s license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a 10% or greater interest in the business must sign the application for an operator’s license as applicant. If a corporation is listed as owner of a sexually oriented business or as the entity that wishes to operate such a business, all corporate officers and directors must sign the application for an operator’s license as applicant.

(F) Applications for an operator’s license, whether original or renewal, must be made to the Director by the intended operator of the enterprise. Applications must be submitted to the office of the Director or the Director’s designee during regular working hours. Application forms shall be supplied by the Director. The following information shall be provided on the application form:

(1) The name, street address (and mailing address if different) of the applicant(s);

(2) The name under which the establishment is to be operated and a general description of the services to be provided. If the applicant intends to operate the sexually oriented business under a name other than that of the applicant; he or she must state: a) the sexually oriented business’ fictitious name, and b) submit the required registration documents;

(3) Written proof of age of the person(s) signing the application in the form of a birth certificate or picture identification issued by a governmental agency;

(4) An affirmative statement that the applicant(s) has not had any license issued under this chapter revoked within the 24-month period preceding the filing of the application with the City Clerk;

(5) The single classification of license, as found in § 115.03, for which the applicant is filing;

(6) The telephone number of the establishment;

(7) The street address and legal description of the tract of land on which the establishment is to be located;

(8) If the establishment is not in operation, the expected startup date (which shall be expressed in number of days from the date of issuance of the business license). If the expected startup date is to be more than ten days following the date of issuance of the business license, then a detailed explanation of the construction, repair or remodeling work or other cause of the expected delay and a statement of the owner’s time schedule and plan for accomplishing the same;

(9) If an applicant wishes to operate a sexually oriented business, other than an adult motel, which shall exhibit on the premises, in a viewing room or booth of less than 150 square feet of floor space, films, video cassettes, other video reproductions, or live entertainment which depict specified sexual activities or specified anatomical areas, then the applicant shall comply with the application requirements set forth in § 115.19 hereunder.

(G) Each application for an operator’s license shall be accompanied by the following:

(1) Payment of the application fee in full;

(2) If the establishment is a state corporation, a certified copy of the articles of incorporation, together with all amendments thereto;

(3) If the establishment is a foreign corporation, a certified copy of the certificate of authority to transact business in this state, together with all amendments thereto;

(4) If the establishment is a limited partnership or limited liability company formed under the laws of the State of Illinois, a certified copy of the certificate of limited partnership or limited liability company, together with all amendments thereto;

(5) If the establishment is a foreign limited partnership or limited liability company, a certified copy of the certificate of limited partnership or limited liability company and the qualification documents, together with all amendments thereto;

(6) A current certificate and straight-line drawing prepared within 30 days prior to application by a registered land surveyor depicting the property lines and the structures containing any existing sexually oriented businesses within 1,000 feet of the property to be certified; and the property lines of any established religious institution/synagogue, school, public park, recreation area, or residence within 1,000 feet of the property to be certified. For purposes of this section, a use shall be considered existing or established if it is in existence at the time an application is submitted;

(7) Any of items in divisions (G)(2) through (G)(6) above shall not be required for a renewal application if the applicant states that the documents previously furnished to the Director with the original application or previous renewals thereof remain correct and current.

(H) (1) Applications for an employee license to work and/or perform services in a sexually oriented business, whether original or renewal, must be made to the Director by the person to whom the employee license shall issue. Each application for an employee license shall be accompanied by payment of the application fee in full. Application forms shall be supplied by the Director. Applications must be submitted to the office of the Director or the Director’s designee during regular working hours. Each applicant shall be required to give the following information on the application form:

(a) The applicant’s given name;

(b) Date of birth;

(d) Written proof of age in the form of a birth certificate or picture identification issued by a governmental agency of the applicant.

(2) The personal information provided in this division shall be confidential, and shall not be disclosed to the public except to the extent required by state or federal law.

(I) Every application for a license under this chapter shall contain a statement under oath that:

(1) The applicant has personal knowledge of the information contained in the application, and that the information contained therein and furnished therewith is true and correct; and

(2) The applicant has read the provisions of this chapter.

(J) A separate application and operator’s license shall be required for each sexually oriented business classification as set forth in § 115.03.

(K) The fact that a person possesses other types of state or city permits and/or licenses does not exempt him/her from the requirement of obtaining a sexually oriented business operator or employee license.

(Ord. 0-2003-13, passed 10-29-03)

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