Loading...
GENERAL PROVISIONS
(A) Purpose. It is the purpose of this chapter to regulate sexually oriented businesses in order to promote the health, safety and general welfare of the citizens of the village and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the village. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to 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 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 material.
(B) Findings and rationale. Based on evidence of the adverse secondary effects of adult uses presented in hearings and in reports made available to the village, and on findings, interpretations and narrowing constructions incorporated in the cases of City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); City of Erie v. Pap’s A.M., 529 U.S. 277 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41(1986); 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); N.Y. State Liquor Authority v. Bellanca, 452 U.S. 714 (1981); and Sensations. Inc., v. City of Grand Rapids, 526 F.3d 291 (6th Cir. 2008); Deja Vu of Nashville, Inc., v. Metropolitan Gov’t of Nashville and Davidson County, 466 F.3d 391 (6th Cir. 2006); Deja Vu of Cincinnati, L.L.C. v. Union Township Bd. Of Trustees, 411 F.3d 777 (6th Cir. 2005) (en banc); Fantasy Ranch, Inc., v. City of Arlington, 459 F.3d 546(5th Cir. 2006); City of Chicago v. Pooh Bah Enterprises, Inc., 865 N.E.2d 133 (111. 2006); Andy’s Restaurant & Lounge, Inc., v. City of Gary, 466 F.3d 550 (7th Cir. 2006); 181 South, Inc., v. Fischer, 454 F.3d 228(3rd Cir. 2006); Bronco’s Entertainment, Ltd. v. Charter Twp. of Van Buren, 421 F.3d 440 (6th Cir. 2005); Charter Twp. of Van Buren v. Garter Belt, Inc., 258 Mich. App. 594 (2003); Jott, Inc., v. Clinton Twp., 224 Mich. App. 513 (1997); Michigan ex rel. Wayne County Prosecutor v. Dizzy Duck, 449 Mich. 353(1995); Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10th Cir. 1998); ILQ Investments, Inc., v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994); Little Mack Entm’t II, Inc., v. Twp. of Marengo, 2008 WL 2783252 (W.D. Mich. July 17, 2008); Kentucky Restaurant Concepts, Inc., v. City of Louisville, 209 F. Supp. 2d 672 (W.D. Ky. 2002); Restaurant Ventures V. Lexington-Fayette Urban County Gov’t, 60 S.W.3d 572 (Ky. Ct. App. 2001); Deja Vu of Nashville, Inc., et al. v. Metropolitan Government of Nashville and Davidson County, 274 F.3d 377 (6th Cir. 2001); Ctr.for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Bigg Wolf Discount Video Sales, Inc., v. Montgomery County, 256 F. Supp. 2d 385 (D. Md. 2003); DLS, Inc., v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Brandywine, Inc., v. City of Richmond, 359 F.3d 830 (6th Cir. 2004); Currence v. City of Cincinnati, 28 Fed. Appx. 438 (6th Cir. Jan. 24, 2002); Broadway Books v. Roberts, 642 F. Supp. 486 (E.D. Term. 1986); Bright Lights, Inc., v. City of Newport, 830 F. Supp. 378 (E.D. Ky. 1993); Bamon Corp. v. City of Dayton, 923 F.2d 470 (6th Cir. 1991); 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); Threesome Entertainment v. Strittmather, 4 F. Supp. 2d 710 (N.D. Ohio 1998); Lady J. Lingerie, Inc., v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); In re Tennessee Public Indecency Statute, 172 F.3d 873 (6th Cir. Jan. 13 1999)(table); World Wide Video of Washington, Inc., v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Ben’s Bar, Inc., v. Village of Somerset, 316 F.3d 702(7th Cir. 2003); Daytona Grand, Inc., v. City of Daytona Beach, 490 F.3d 860 (11th Cir. 2007); Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007); H&A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007); Illinois One News, Inc., v. City of Marshall, 477 F.3d 461 (7th Cir. 2007); G.M. Enterprises, Inc., v. Town of St. Joseph, 350 F.3d 631 (7th Cir. 2003); Richland Bookmart, Inc., v. Nichols, 137 F.3d 435 (6th Cir. 1998); Spokane Arcade, Inc., v. City of Spokane, 75 F.3d 663 (9th Cir. 1996); Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005); People ex rel. Deters v. The Lion’s Den, Inc., Case No. 04-CH-26, Modified Permanent Injunction Order (III. Fourth Judicial Circuit, Effingham County, July 13, 2005); Reliable Consultants, Inc., v. City of Kennedale, No. 4:05-CV-l 66-A, Findings of Fact and Conclusions of Law (N.D. Tex. May 26, 2005); and based upon reports concerning secondary effects occurring in and around sexually oriented businesses, including, but not limited to, Austin, Texas - 1986; Indianapolis, Indiana - 1984; Garden Grove, California - 1991; Houston, Texas - 1983, 1997; Phoenix, Arizona - 1979, 1995-98; Chattanooga, Tennessee - 1999-2003; Los Angeles, California - 1977; Whittier, California - 1978; Spokane, Washington - 2001; St. Cloud, Minnesota - 1994; Littleton, Colorado - 2004; Oklahoma City, Oklahoma - 1986; Dallas, Texas - 1997; Ft. Worth, Texas - 2004; Kennedale, Texas -2005; Greensboro, North Carolina - 2003; Amarillo, Texas - 1977; McCleaiy Report - 2006; New York, New York Times Square - 1994; Jackson County, Missouri - 2008; Warren, Michigan - 2005; and the Report of the Attorney General’s Working Group On The Regulation Of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota), the village finds as follows:
(1) Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban blight, litter and sexual assault and exploitation;
(2) Sexually oriented businesses should be separated from sensitive land uses to minimize the impact of their secondary effects upon such uses, and should be separated from other sexually oriented businesses, to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of sexually oriented businesses in one area; and
(3) Each of the foregoing negative secondary effects constitutes a harm which the village has a substantial governmental interest in preventing and/or abating. This substantial governmental interest in preventing secondary effects, which is the village’s rationale for this chapter, exists independent of any comparative analysis between sexually oriented businesses and non-sexually oriented businesses. Additionally, the village’s interest in regulating sexually oriented businesses extends to preventing future secondary effects of either current or future sexually oriented businesses that may locate in the village. The village finds that the cases and documentation set forth above and relied on by the village are reasonably believed to be relevant to said secondary effects.
(C) The village hereby adopts and incorporates herein its stated findings and legislative record related to the adverse secondary effects of sexually oriented businesses, including the judicial opinions and reports related to such secondary effects.
(Ord. 185, passed 11-11-2009)
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ADULT ARCADE. Any place to which the public is permitted or invited wherein coin-operated, slug-operated or for any form of consideration, or electronically, electrically or mechanically controlled still or motion picture machines, projectors, video or laser disc players 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, ADULT NOVELTY STORE or ADULT VIDEO STORE. A commercial establishment having 30% or more of all usable interior, retail, wholesale or warehouse space devoted to the distribution, display or storage of books, magazines and other periodicals and/or photographs, drawings, slides, films, videotapes, recording tapes and/or novelty items which are distinguished or characterized by their emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas” (as defined herein).
ADULT CABARET. An establishment which regularly features persons who appear semi-nude.
ADULT MOTEL. A hotel, motel or similar commercial establishment which:
(1) Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which 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 which advertises the availability of this adult type of photographic reproductions;
(2) Offers a sleeping room for rent for a period of time that is less than ten hours; or
(3) Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than ten hours.
ADULT MOTION PICTURE THEATER or ADULT LIVE STAGE PERFORMING THEATER. An enclosed building used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas” (as defined herein) for observation by patrons therein. Such establishment is customarily not open to the public generally, but only to one or more classes of the public, excluding any minor by reason of age.
EMPLOYEE. A person who performs any service on the premises of a sexually oriented business on a full-time, part-time or contract basis, whether or not the person is denominated an employee, independent contractor, agent or otherwise and whether or not said person is paid a salary, wage or other compensation by the operator of said 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.
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. 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.
LICENSEE. A person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license; and in the case of an employee, a person in whose name a license has been issued authorizing employment in a sexually oriented business.
MASSAGE PARLOR. Any place where, for any form of consideration or gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic treatments, or any other treatment manipulation of the human body which occurs as a part of or in connection with “specified sexual activities,” or where any person providing such treatment, manipulation, or service related thereto, exposes his or her “specified anatomical areas.” The definition of sexually oriented businesses shall not include the practice of massage in any licensed hospital, nor by a licensed hospital, nor by a licensed physician, surgeon, chiropractor or osteopath, nor by any nurse or technician working under the supervision of a licensed physician, surgeon, chiropractor or osteopath, nor by trainers for any amateur, semiprofessional or professional athlete or athletic team or school athletic program.
NUDE MODEL STUDIO. Any place where a person who appears semi-nude, in a state of nudity, or who displays “specified anatomical areas” and is provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons who pay money or any form of consideration. NUDE MODEL STUDIO shall not include a proprietary school licensed by the state or a college, junior college or university supported entirely or in part by public taxation; a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college or university supported entirely or partly by taxation; or in a structure:
(1) That has no sign visible from the exterior of the structure and no other advertising that indicates a nude or semi-nude person is available for viewing;
(2) Where in order to participate in a class a student must enroll at least three days in advance of the class; and
(3) Where no more than one nude or semi-nude model is on the premises at any one time.
NUDITY or a STATE OF NUDITY. The showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state. NUDITY or a STATE OF NUDITY does not include the following:
(1) A woman’s breast-feeding of a baby whether or not the nipple or areola is exposed during or incidental to the feeding;
(2) Material as defined in Public Act 343 of 1984, § 2, being M.C.L.A. § 752.362; or
(3) Sexually explicit visual material as defined in Public Act 33 of 1978, being M.C.L.A. § 722.673.
PERSON. An individual, proprietorship, partnership, corporation, association or other legal entity.
SEMI-NUDE or in a SEMI-NUDE CONDITION. The showing of the female breast below a horizontal line across the top of the areola at its highest point or the showing of the male or female buttocks. 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 bikini, dress, blouse, skirt, leotard, bathing suit or other wearing apparel provided the areola is not exposed in whole or in part. SEMI-NUDITY or a STATE OF SEMI-NUDE CONDITION does not include the following:
(1) A woman’s breast-feeding of a baby whether or not the nipple or areola is exposed during or incidental to the feeding;
(2) Material as defined in Public Act 343 of 1984, § 2, being M.C.L.A. § 752.362; and/or
(3) Sexually explicit visual material as defined in Public Act 33 of 1978, § 3, being M.C.L.A. § 722.673.
SEXUAL ENCOUNTER CENTER. A business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration:
(1) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
(2) Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nude.
SEXUALLY ORIENTED BUSINESS. An adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater or adult live stage performing theater, escort agency, nude model studio or sexual encounter center.
SPECIFIED ANATOMICAL AREAS. Portions of the human body defined as follows:
(1) Less than completely and opaquely covered human genitals, pubic region, buttocks or female breast below a point immediately above the top of the areola; and
(2) Human male genitals in a discernible turgid state, even if completely and opaquely covered.
SPECIFIED CRIMINAL ACTIVITY. Any of the following offenses:
(1) Prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution or display of harmful material to a minor; sexual performance by a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; engaging in organized criminal activity; sexual assault, molestation of a child; gambling; or distribution of a controlled substance; or any similar offenses to those described above under the criminal or penal code of this state, other states or countries;
(2) Offenses for which:
(a) Less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
(b) Less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or
(c) Less than five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction, whichever is the later date, if the convictions are of two or more misdemeanors or combination of misdemeanor offenses occurring within any 24-month period.
(3) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.
SPECIFIED SEXUAL ACTIVITIES. The explicit display of one or more of the following:
(1) Human genitals in a state of sexual stimulation or arousal; or
(2) Acts of human masturbation, sexual intercourse, oral copulation or sodomy.
SUBSTANTIAL ENLARGEMENT OF A SEXUALLY ORIENTED BUSINESS. The increase in floor areas occupied by the business by more than 25%, as the floor areas exist on the date this chapter takes effect.
TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS. Any of the following:
(1) The sale, lease or sublease of the business;
(2) The transfer of securities which constitute 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 which 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. 185, passed 11-11-2009)
Loading...