Chapter 5.15
SEXUALLY ORIENTED BUSINESSES
Sections:
Article I. General Provisions
5.15.010 Purpose – Findings and rationale.
Article II. Licensing
5.15.070 Expiration and renewal of license.
5.15.100 Hearing – License denial, suspension, revocation – Appeal.
Article III. Operating Restrictions and Regulations
5.15.130 Regulations pertaining to exhibition of sexually explicit films on premises.
5.15.140 Loitering – Monitoring requirements.
5.15.170 Scienter required to prove violation or business licensee liability.
5.15.180 Failure of city to meet deadline not to risk applicant/licensee rights.
5.15.190 Location of sexually oriented businesses.
Article I. General Provisions
5.15.010 Purpose – Findings and rationale.
(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 city, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects 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 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 Common Council, 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); Sewell v. Georgia, 435 U.S. 982 (1978); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); City of Dallas v. Stanglin, 490 U.S. 19 (1989); and Uniontown Retail #36, LLC v. Bd. of Comm’rs of Jackson County, 950 N.E.2d 332 (Ind. Ct. App. 2011); Plaza Group Properties, LLC v. Spencer County Plan Comm’n, 911 N.E.2d 1264 (Ind. Ct. App. 2009); Plaza Group Properties, LLC v. Spencer County Plan Comm’n, 877 N.E.2d 877 (Ind. Ct. App. 2007); Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); Andy’s Restaurant & Lounge, Inc. v. City of Gary, 466 F.3d 550 (7th Cir. 2006); Blue Canary Corp. v. City of Milwaukee, 270 F.3d 1156 (7th Cir. 2001); Schultz v. City of Cumberland, 228 F.3d 831 (7th Cir. 2000); Matney v. County of Kenosha, 86 F.3d 692 (7th Cir. 1996); Berg v. Health & Hospital Corp., 865 F.2d 797 (7th Cir. 1989); DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir. 1999); Graff v. City of Chicago, 9 F.3d 1309 (7th Cir. 1993); North Avenue Novelties, Inc. v. City of Chicago, 88 F.3d 441 (7th Cir. 1996); Chulchian v. City of Indianapolis, 633 F.2d 27 (7th Cir. 1980); Illinois One News. Inc. v. City of Marshall, All F.3d 461 (7th Cir. 2007); G.M. Enterprises, Inc. v. Town of St. Joseph, 350 F.3d 631 (7th Cir. 2003); Metro Pony, LLC v. City of Metropolis, 2012 WL 1389656 (S.D. 111. Apr. 20, 2012); Imaginary Images, Inc. v. Evans, 612 F.3d 736 (4th Cir. 2010); LLEH, Inc. v. Wichita County, 289 F.3d 358 (5th Cir. 2002); Ocello v. Koster, 354 S.W.3d 187 (Mo. 2011); 84 Video/Newsstand, Inc. v. Sartini, 2011 WL 3904097 (6th Cir. Sept. 7, 2011); Flanigan’s Enters., Inc. v. Fulton County, 596 F.3d 1265 (11th Cir. 2010); East Brooks Books, Inc. v. Shelby County, 588 F.3d 360 (6th Cir. 2009); Entm’t Prods., Inc. v. Shelby County, 588 F.3d 372 (6th Cir. 2009); Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291 (6th Cir. 2008); World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Peek-a-Boo Lounge v. Manatee County, 630 F.3d 1346 (11th Cir. 2011); 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); Jacksonville Property Rights Ass’n, Inc. v. City of Jacksonville, 635 F.3d 1266 (11th Cir. 2011); H&A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007); Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546 (5th Cir. 2006); Richland Bookman, Inc. v. Knox County, 555 F.3d 512 (6th Cir. 2009); Bigg Wolf Discount Video Movie Sales, Inc. v. Montgomery County, 256 F. Supp. 2d 385 (D. Md. 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); City of New York v. Hommes, 724 N.E.2d 368 (N.Y. 1999); Taylor v. State, No. 01-01-00505-CR, 2002 WL 1722154 (Tex. App. July 25, 2002); Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996 (9th Cir. 2007); Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005); Z.J. Gifts D-4, L.L.C. v. City of Littleton, Civil Action No. 99-N-1696. Memorandum Decision and Order (D. Colo. March 31, 2001); 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-166-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; Tucson, Arizona – 1990; 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; Jackson County, Missouri – 2008; Louisville, Kentucky – 2004; New York, New York Times Square – 1994; the Report of the Attorney General’s Working Group On The Regulation Of Sexually Oriented Businesses (June 6, 1989, State of Minnesota); Dallas, Texas – 2007; “Rural Hotspots: The Case of Adult Businesses,” 19 Criminal Justice Policy Review 153 (2008); “Correlates of Current Transactional Sex among a Sample of Female Exotic Dancers in Baltimore, MD,” Journal of Urban Health (2011); “Stripclubs According to Strippers: Exposing Workplace Sexual Violence,” by Kelly Holsopple, Program Director, Freedom and Justice Center for Prostitution Resources, Minneapolis, Minnesota; “Sexually Oriented Businesses: An Insider’s View,” by David Sherman, presented to the Michigan House Committee on Ethics and Constitutional Law, Jan. 12, 2000; Memphis, Tennessee – 2005-2011; and assorted reports and affidavits concerning secondary effects, the Common Council finds:
(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, 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.
(3) Each of the foregoing negative secondary effects constitutes a harm which the city has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the city’s rationale for this chapter, exists independent of any comparative analysis between sexually oriented and non-sexually oriented businesses. Additionally, the city’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 city. The city finds that the cases and documentation relied on in this section are reasonably believed to be relevant to said secondary effects.
(4) The city 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. 1418-2012. Code 2000 § 112.01.]
5.15.020 Definitions.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
“Adult bookstore” or “adult video store” means a commercial establishment which, as one of its principal business activities, offers for sale or rental for any form of consideration any one or more of the following: books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the display of specified sexual activities or specified anatomical areas. A “principal business activity” exists where the commercial establishment meets any one or more of the following criteria:
(1) At least 35 percent of the establishment’s displayed merchandise consists of said items;
(2) At least 35 percent of the retail value (defined as the price charged to customers) of the establishment’s displayed merchandise consists of said items;
(3) At least 35 percent of the establishment’s revenues derive from the sale or rental, for any form of consideration, of said items;
(4) The establishment maintains at least 35 percent of its floor space for the display, sale, and/or rental of said items (aisles and walkways used to access said items shall be included in floor space maintained for the display, sale, or rental of said items);
(5) The establishment maintains at least 500 square feet of its floor space for the display, sale, and/or rental of said items (aisles and walkways used to access said items shall be included in floor space maintained for the display, sale, or rental of said items);
(6) The establishment regularly offers for sale or rental at least 2,000 of said items;
(7) The establishment regularly features said items and regularly advertises itself or holds itself out, in any medium, by using “adult,” “adults-only,” “XXX,” “sex,” “erotic,” or substantially similar language, as an establishment that caters to adult sexual interests;
(8) The establishment maintains an “adult arcade,” which means 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, or other image-producing devices are regularly maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are characterized by their emphasis upon matter exhibiting specified sexual activities or specified anatomical areas.
“Adult cabaret” means a nightclub, bar, juice bar, restaurant, bottle club, or similar commercial establishment that regularly features live conduct characterized by semi-nudity. No establishment shall avoid classification as an adult cabaret by offering or featuring nudity.
“Adult motion picture theater” means a commercial establishment where films, motion pictures, videocassettes, slides, or similar photographic reproductions which are characterized by their emphasis upon the display of specified sexual activities or specified anatomical areas are regularly shown to more than five persons for any form of consideration.
“Characterized by” means describing the essential character or quality of an item. As applied in this chapter, no business shall be classified as a sexually oriented business by virtue of showing, selling, or renting materials rated NC-17 or R by the Motion Picture Association of America.
“City” means Angola, Indiana.
“Employ,” “employee,” and “employment” describe and pertain to any person who performs any service on the premises of a sexually oriented business, on a full time, part time, or contract basis, regardless of whether the person is denominated an employee, independent contractor, agent, lessee, or otherwise. “Employee” does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises.
“Establish” or “establishment” means and 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; or
(3) The addition of any sexually oriented business to any other existing sexually oriented business.
“Floor space” means the floor area inside an establishment that is visible or accessible to patrons for any reason, excluding restrooms.
“Hearing officer” means an attorney, not otherwise employed by the city, who is licensed to practice law in Indiana, and retained to serve as an independent tribunal to conduct hearings under this chapter.
“Influential interest” means any of the following:
(1) The actual power to operate the sexually oriented business or control the operation, management or policies of the sexually oriented business or legal entity which operates the sexually oriented business;
(2) Ownership of a financial interest of 30 percent or more of a business or of any class of voting securities of a business; or
(3) Holding an office (e.g., president, vice president, secretary, treasurer, managing member, managing director, and the like) in a legal entity which operates the sexually oriented business.
“Licensee” means a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual or individuals listed as an applicant on the application for a sexually oriented business license. In the case of an employee, it shall mean the person in whose name the sexually oriented business employee license has been issued.
“Nudity” means the showing of the human male or female genitals, pubic area, vulva, or anus with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola.
“Operator” means any person on the premises of a sexually oriented business who manages, supervises, or controls the business or a portion thereof. A person may be found to be an operator regardless of whether the person is an owner, part owner, or licensee of the business.
“Person” means an individual, proprietorship, partnership, corporation, association, or other legal entity.
“Premises” means 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 sexually oriented business license.
“Regularly” means the consistent and repeated doing of an act on an ongoing basis.
“Semi-nude” or “semi-nudity” means the showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or the showing of the male or female buttocks. This definition shall include the lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part.
“Semi-nude model studio” means a place where persons regularly appear in a state of semi-nudity for money or any form of consideration in order to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons. This definition does not apply to any place where persons appearing in a state of semi-nudity did so in a class operated:
(1) By a college, junior college, or university supported entirely or partly by taxation;
(2) By 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
(3) In a structure:
(a) Which has no sign visible from the exterior of the structure and no other advertising that indicates a semi-nude person is available for viewing; and
(b) Where, in order to participate in a class a student must enroll at least three days in advance of the class.
“Sexual device” means any three-dimensional object designed for stimulation of the male or female human genitals, anus, buttocks, female breast, or for sadomasochistic use or abuse of oneself or others and shall include devices commonly known as dildos, vibrators, penis pumps, cock rings, anal beads, butt plugs, nipple clamps, and physical representations of the human genital organs. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy.
“Sexual device shop” means a commercial establishment that regularly features sexual devices. This definition shall not be construed to include any pharmacy, drug store, medical clinic, any establishment primarily dedicated to providing medical or healthcare products or services, or any establishment that does not regularly advertise itself or hold itself out, in any medium, as an establishment that caters to adult sexual interests.
“Sexually oriented business” means an adult bookstore or adult video store, an adult cabaret, an adult motion picture theater, a semi-nude model studio, or a sexual device shop.
“Specified anatomical areas” means and includes:
(1) Less than completely and opaquely covered: human genitals, pubic region; buttock; and female breast below a point immediately above the top of the areola; and
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
“Specified criminal activity” means any of the following specified crimes for which less than five years has elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date:
(1) Rape, sexual assault, public indecency, statutory rape, rape of a child, sexual exploitation of a minor, indecent exposure;
(2) Prostitution, patronizing prostitution, promoting prostitution;
(3) Obscenity;
(4) Dealing in controlled substances;
(5) Racketeering, tax evasion, money laundering;
(6) Any attempt, solicitation, or conspiracy to commit one of the foregoing offenses; or
(7) Any offense in another jurisdiction that, had the predicate act(s) been committed in Indiana, would have constituted any of the foregoing offenses.
“Specified sexual activity” means any of the following:
(1) Intercourse, oral copulation, masturbation or sodomy; or
(2) Excretory functions as a part of or in connection with any of the activities described in subsection (1) of this definition.
“Transfer of ownership or control” of a sexually oriented business means any of the following:
(1) The sale, lease, or sublease of the business;
(2) The transfer of securities which constitute an influential 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.
“Viewing room” means the room, booth, or area where a patron of a sexually oriented business would ordinarily be positioned while watching a film, videocassette, digital video disc, or other video reproduction. [Ord. 1418-2012. Code 2000 § 112.02.]
Article II. Licensing
5.15.030 License required.
(A) Business License. It shall be unlawful for any person to operate a sexually oriented business in the city without a valid sexually oriented business license.
(B) Employee License. It shall be unlawful for any person to be an employee, as defined in AMC 5.15.020, of a sexually oriented business in the city without a valid sexually oriented business employee license, except that a person who is a licensee under a valid sexually oriented business license shall not be required to also obtain a sexually oriented business employee license.
(C) Application. An applicant for a sexually oriented business license or a sexually oriented business employee license shall file in person at the office of the city Building Commissioner a completed application made on a form provided by the Building Commissioner. A sexually oriented business may designate an individual with an influential interest in the business to file its application for a sexually oriented business license in person on behalf of the business. The application shall be signed as required by subsection (D) of this section and shall be notarized. An application shall be considered complete when it contains, for each person required to sign the application, the information and/or items required in this subsection, accompanied by the appropriate licensing fee:
(1) The applicant’s full legal name and any other names used by the applicant in the preceding five years.
(2) Current business address or another mailing address for the applicant.
(3) Written proof of age, in the form of a driver’s license, a picture identification document containing the applicant’s date of birth issued by a governmental agency, or a copy of a birth certificate accompanied by a picture identification document issued by a governmental agency.
(4) If the application is for a sexually oriented business license, the business name, location, legal description, mailing address and phone number of the sexually oriented business.
(5) If the application is for a sexually oriented business license, the name and business address of the statutory agent or other agent authorized to receive service of process.
(6) A statement of whether an applicant has been convicted of or has pled guilty or nolo contendere to a specified criminal activity as defined in AMC 5.15.020, and if so, each specified criminal activity involved, including the date, place, and jurisdiction of each as well as the dates of conviction and release from confinement, where applicable.
(7) A statement of whether any sexually oriented business in which an applicant has had an influential interest, has, in the previous five years (and at a time during which the applicant had the influential interest):
(a) Been declared by a court of law to be a nuisance; or
(b) Been subject to a court order of closure or padlocking.
(8) An application for a sexually oriented business license shall be accompanied by a legal description of the property where the business is located and a sketch or diagram showing the configuration of the premises, including a statement of total floor area occupied by the business and a statement of floor area visible or accessible to patrons for any reason, excluding restrooms. The sketch or diagram need not be professionally prepared but shall 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. Applicants who are required to comply with the stage, booth, and/or room configuration requirements of this chapter shall submit a diagram indicating that the setup and configuration of the premises meet the requirements of the applicable regulations. The Building Commissioner may waive the requirements of this subsection (C)(8) for a renewal application if the applicant adopts a legal description and a sketch or diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.
(9) The information provided pursuant to subsection (C) of this section shall be supplemented in writing by certified mail, return receipt requested, to the Building Commissioner within 10 working days of a change of circumstances which would render the information originally submitted false or incomplete.
(D) Signature. A person who seeks a sexually oriented business employee license under this section shall sign the application for a license. If a person who seeks a sexually oriented business license under this section is an individual, he or she shall sign the application for a license as applicant. If a person who seeks a sexually oriented business license is other than an individual, each person with an influential interest in the sexually oriented business or in a legal entity that controls the sexually oriented business shall sign the application for a license as applicant. Each applicant must be qualified under this chapter and each applicant shall be considered a licensee if a license is granted.
(E) The information provided by an applicant in connection with an application for a license under this chapter shall be maintained by the office of the Building Commissioner on a confidential basis, and such information may be disclosed only as may be required, and only to the extent required, by governing law or court order. Any information protected by the right to privacy as recognized by state or federal law shall be redacted prior to such disclosure. [Ord. 1418-2012. Code 2000 § 112.10.]
5.15.040 Issuance of license.
(A) Business License. Upon the filing of a completed application for a sexually oriented business license, the Building Commissioner shall immediately issue a temporary license to the applicant if the completed application is from a preexisting sexually oriented business that is lawfully operating in the city and the completed application, on its face, indicates that the applicant is entitled to an annual sexually oriented business license. The temporary license shall expire upon the final decision of the city to deny or grant an annual license. Within 20 days of the filing of a completed sexually oriented business license application, the Building Commissioner shall either issue a license to the applicant or issue a written notice of intent to deny a license to the applicant. The Building Commissioner shall issue a license unless:
(1) An applicant is less than 18 years of age.
(2) An applicant has failed to provide information required by this chapter for issuance of a license or has falsely answered a question or request for information on the application form.
(3) The license application fee required by this chapter has not been paid.
(4) The sexually oriented business, as defined in AMC 5.15.020, is not in compliance with the interior configuration requirements of this chapter or is not in compliance with the location requirements of this chapter.
(5) Any sexually oriented business in which an applicant has had an influential interest, has, in the previous five years (and at a time during which the applicant had the influential interest):
(a) Been declared by a court of law to be a nuisance; or
(b) Been subject to an order of closure or padlocking.
(6) An applicant has been convicted of or pled guilty or nolo contendere to a specified criminal activity, as defined in AMC 5.15.020.
(B) Employee License. Upon the filing of a completed application for a sexually oriented business employee license, the Building Commissioner shall immediately issue a temporary license to the applicant if the applicant seeks licensure to work in a licensed sexually oriented business and the completed application, on its face, indicates that the applicant is entitled to an annual sexually oriented business employee license. The temporary license shall expire upon the final decision of the city to deny or grant an annual license. Within 20 days of the filing of a completed sexually oriented business employee license application, the Building Commissioner shall either issue a license to the applicant or issue a written notice of intent to deny a license to the applicant. The Building Commissioner shall issue a license unless:
(1) The applicant is less than 18 years of age.
(2) The applicant has failed to provide information as required by this chapter for issuance of a license or has falsely answered a question or request for information on the application form.
(3) The license application fee required by this chapter has not been paid.
(4) Any sexually oriented business in which the applicant has had an influential interest, has, in the previous five years (and at a time during which the applicant had the influential interest):
(a) Been declared by a court of law to be a nuisance; or
(b) Been subject to an order of closure or padlocking.
(5) The applicant has been convicted of or pled guilty or nolo contendere to a specified criminal activity, as defined in this chapter.
(C) The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the number of the license issued to the licensee(s), the expiration date, and, if the license is for a sexually oriented business, the address of the sexually oriented business. The sexually oriented business license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be read at any time that the business is occupied by patrons or is open to the public. A sexually oriented business employee shall keep the employee’s license on his or her person or on the premises where the licensee is then working or performing. [Ord. 1418-2012. Code 2000 § 112.11.]
5.15.050 Fees.
The initial license and annual renewal fees for sexually oriented business licenses and sexually oriented business employee licenses shall be as follows: $100.00 for the initial fee for a sexually oriented business license and $50.00 for annual renewal; $50.00 for the initial sexually oriented business employee license and $25.00 for annual renewal. [Ord. 1418-2012. Code 2000 § 112.12.]
5.15.060 Inspection.
Sexually oriented businesses and sexually oriented business employees shall permit the Building Commissioner and his or her agents to inspect, from time to time on an occasional basis, the portions of the sexually oriented business premises where patrons are permitted, for the purpose of ensuring compliance with the specific regulations of this chapter, during those times when the sexually oriented business is occupied by patrons or is open to the public. This section shall be narrowly construed by the city to authorize reasonable inspections of the licensed premises pursuant to this chapter, but not to authorize a harassing or excessive pattern of inspections. [Ord. 1418-2012. Code 2000 § 112.13.]
5.15.070 Expiration and renewal of license.
(A) Each license shall remain valid for a period of one calendar year from the date of issuance unless otherwise suspended or revoked. The license may be renewed only by making application and payment of a fee as provided in this chapter.
(B) Application for renewal of an annual license should be made at least 90 days before the expiration date of the current annual license, and when made less than 90 days before the expiration date, the expiration of the current license will not be affected. [Ord. 1418-2012. Code 2000 § 112.14.]
5.15.080 Suspension.
(A) The Building Commissioner shall issue a written notice of intent to suspend a sexually oriented business license for a period not to exceed 30 days if the sexually oriented business licensee has knowingly or recklessly violated this chapter or has knowingly or recklessly allowed an employee or any other person to violate this chapter.
(B) The Building Commissioner shall issue a written notice of intent to suspend a sexually oriented business employee license for a period not to exceed 30 days if the employee licensee has knowingly or recklessly violated this chapter. [Ord. 1418-2012. Code 2000 § 112.15.]
5.15.090 Revocation.
(A) The Building Commissioner shall issue a written notice of intent to revoke a sexually oriented business license or a sexually oriented business employee license, as applicable, if the licensee knowingly or recklessly violates this chapter or has knowingly or recklessly allowed an employee or any other person to violate this chapter and a suspension of the licensee’s license has become effective within the previous 12-month period.
(B) The Building Commissioner shall issue a written notice of intent to revoke a sexually oriented business license or a sexually oriented business employee license, as applicable, if:
(1) The licensee has knowingly given false information in the application for the sexually oriented business license or the sexually oriented business employee license;
(2) The licensee has knowingly or recklessly engaged in or allowed possession, use, or sale of controlled substances on the premises of the sexually oriented business;
(3) The licensee has knowingly or recklessly engaged in or allowed prostitution on the premises of the sexually oriented business;
(4) The licensee knowingly or recklessly operated the sexually oriented business during a period of time when the license was finally suspended or revoked;
(5) The licensee has knowingly or recklessly engaged in or allowed any specified sexual activity or specified criminal activity to occur in or on the premises of the sexually oriented business;
(6) The licensee has knowingly or recklessly allowed a person under the age of 18 years to appear in a semi-nude condition or in a state of nudity on the premises of the sexually oriented business.
(C) The fact that any relevant conviction is being appealed shall have no effect on the revocation of the license; provided, that if any conviction which serves as a basis of a license revocation is overturned or reversed on appeal, that conviction shall be treated as null and of no effect for revocation purposes.
(D) When, after the notice and hearing procedure described in this chapter, the city revokes a license, the revocation shall continue for one year and the licensee shall not be issued a sexually oriented business license or sexually oriented business employee license for one year from the date revocation becomes effective. [Ord. 1418-2012. Code 2000 § 112.16.]
5.15.100 Hearing – License denial, suspension, revocation – Appeal.
(A) When the Building Commissioner issues a written notice of intent to deny, suspend, or revoke a license, the Building Commissioner shall immediately send the notice, which shall include the specific grounds under this chapter for such action, to the applicant or licensee (respondent) by personal delivery or certified mail. The notice shall be directed to the most current business address or other mailing address on file with the Building Commissioner for the respondent. The notice shall also set forth the following: the respondent shall have 10 days after the delivery of the written notice to submit, at the office of the Building Commissioner, a written request for a hearing. If the respondent does not request a hearing within 10 days, the Building Commissioner’s written notice shall become a final denial, suspension, or revocation, as the case may be, on the thirtieth day after it is issued, and shall be subject to the provisions of subsection (B) of this section.
(1) If the respondent does make a written request for a hearing within 10 days, then the Building Commissioner shall, within 10 days after the submission of the request, send a notice to the respondent indicating the date, time, and place of the hearing. The hearing shall be conducted not less than 10 days nor more than 20 days after the date that the hearing notice is issued. The city shall provide for the hearing to be transcribed.
(2) At the hearing, the respondent shall have the opportunity to present all of respondent’s arguments and to be represented by counsel, present evidence and witnesses on his or her behalf, and cross-examine any of the Building Commissioner’s witnesses. The Building Commissioner shall also be represented by counsel, and shall bear the burden of proving the grounds for denying, suspending, or revoking the license. The hearing shall take no longer than two days, unless extended at the request of the respondent to meet the requirements of due process and proper administration of justice. The Hearing Officer shall issue a final written decision, including specific reasons for the decision pursuant to this chapter, to the respondent within five days after the hearing.
(3) If the decision is to deny, suspend, or revoke the license, the decision shall advise the respondent of the right to appeal the decision to a court of competent jurisdiction, and the decision shall not become effective until the thirtieth day after it is rendered. If the Hearing Officer’s decision finds that no grounds exist for denial, suspension, or revocation of the license, the Hearing Officer shall, contemporaneously with the issuance of the decision, order the Building Commissioner to immediately withdraw the intent to deny, suspend, or revoke the license and to notify the respondent in writing by certified mail of such action. If the respondent is not yet licensed, the Building Commissioner shall contemporaneously therewith issue the license to the applicant.
(B) If any court action challenging a licensing decision is initiated, the city shall prepare and transmit to the court a transcript of the hearing within 30 days after receiving written notice of the filing of the court action. The city shall consent to expedited briefing and/or disposition of the action, shall comply with any expedited schedule set by the court, and shall facilitate prompt judicial review of the proceedings. The following shall apply to any sexually oriented business that is lawfully operating as a sexually oriented business, or any sexually oriented business employee that is lawfully employed as a sexually oriented business employee, on the date on which the completed business or employee application, as applicable, is filed with the Building Commissioner: Upon the filing of any court action to appeal, challenge, restrain, or otherwise enjoin the city’s enforcement of any denial, suspension, or revocation of a temporary license or annual license, the Building Commissioner shall immediately issue the respondent a provisional license. The provisional license shall allow the respondent to continue operation of the sexually oriented business or to continue employment as a sexually oriented business employee and will expire upon the court’s entry of a judgment on the respondent’s appeal or other action to restrain or otherwise enjoin the city’s enforcement. [Ord. 1418-2012. Code 2000 § 112.17.]
5.15.110 Transfer of license.
A licensee shall not transfer his or her license to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the sexually oriented business license application. [Ord. 1418-2012. Code 2000 § 112.18.]
Article III. Operating Restrictions and Regulations
5.15.120 Hours of operation.
No sexually oriented business shall be or remain open for business between 12:00 midnight and 6:00 a.m. on any day. [Ord. 1418-2012. Code 2000 § 112.30.]
5.15.130 Regulations pertaining to exhibition of sexually explicit films on premises.
(A) A person who operates or causes to be operated a sexually oriented business which exhibits in a booth or viewing room on the premises, through any mechanical or electronic image-producing device, a film, video cassette, digital video disc, or other video reproduction characterized by an emphasis on the display of specified sexual activities or specified anatomical areas shall comply with the following requirements.
(1) Each application for a sexually oriented business license shall contain a diagram of the premises showing the location of all operator’s stations, booths or viewing rooms, overhead lighting fixtures, and restrooms, and shall designate all portions of the premises in which patrons will not be permitted. Restrooms shall not contain equipment for displaying films, video cassettes, digital video discs, or other video reproductions. The diagram shall also designate the place at which the license will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer’s or architect’s blueprint shall not be required; however, each diagram shall be oriented to the north or to some designated street or object and shall be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches. The Building Commissioner may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.
(2) It shall be the duty of the operator, and of any employees present on the premises, to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted.
(3) It shall be the duty of the operator, and of any employees present on the premises, to ensure that no specified sexual activity occurs in or on the licensed premises.
(4) It shall be the duty of the operator to post conspicuous signs in well-lighted entry areas of the business stating all of the following:
(a) That the occupancy of viewing rooms less than 150 square feet is limited to one person.
(b) That specified sexual activity on the premises is prohibited.
(c) That the making of openings between viewing rooms is prohibited.
(d) That violators will be required to leave the premises.
(e) That violations of these regulations are unlawful.
(5) It shall be the duty of the operator to enforce the regulations articulated in subsections (A)(4)(a) though (e) of this section.
(6) The interior of the premises shall be configured in such a manner that there is an unobstructed view from an operator’s station of every area of the premises, including the interior of each viewing room but excluding restrooms, to which any patron is permitted access for any purpose. An operator’s station shall not exceed 32 square feet of floor area. If the premises has two or more operator’s stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose, excluding restrooms, from at least one of the operator’s stations. The view required in this paragraph must be by direct line of sight from the operator’s station. It is the duty of the operator to ensure that at least one employee is on duty and situated in each operator’s station at all times that any patron is on the premises. It shall be the duty of the operator, and it shall also be the duty of any employees present on the premises, to ensure that the view area specified in this division remains unobstructed by any doors, curtains, walls, merchandise, display racks or other materials or enclosures at all times that any patron is present on the premises.
(7) It shall be the duty of the operator to ensure that no porous materials are used for any wall, floor, or seat in any booth or viewing room.
(B) It shall be unlawful for a person having a duty under subsections (A)(1) through (A)(7) of this section to knowingly or recklessly fail to fulfill that duty.
(C) No patron shall knowingly or recklessly enter or remain in a viewing room less than 150 square feet in area that is occupied by any other patron.
(D) No patron shall knowingly or recklessly be or remain within one foot of any other patron while in a viewing room that is 150 square feet or larger in area.
(E) No person shall knowingly or recklessly make any hole or opening between viewing rooms. [Ord. 1418-2012. Code 2000 § 112.31.]
5.15.140 Loitering – Monitoring requirements.
(A) It shall be the duty of the operator of a sexually oriented business to:
(1) Ensure that at least two conspicuous signs stating that no loitering is permitted on the premises are posted on the premises; and
(2) Designate one or more employees to monitor the activities of persons on the premises by visually inspecting the premises at least once every 90 minutes or inspecting the premises by use of video cameras and monitors. If used, video cameras and monitors shall operate continuously at all times that the premises are open for business. The monitors shall be installed within an operator’s station.
(B) No sexually oriented business shall erect a fence, wall, or similar barrier that prevents any portion of the parking lot(s) for the establishment from being visible from a public right-of-way.
(C) It shall be unlawful for a person having a duty under this section to knowingly or recklessly fail to fulfill that duty. [Ord. 1418-2012. Code 2000 § 112.32.]
5.15.150 Remedies.
(A) Any premises on which repeated violations of this chapter occur shall constitute a public nuisance. For purposes of this chapter, “repeated violations” shall mean three or more violations of this chapter within a one-year period dating from the time of any violation.
(B) The city’s legal counsel is hereby authorized to institute civil proceedings to enjoin, restrain, or correct violations of this chapter. These proceedings shall be brought in the name of the city; provided, however, that nothing in this section and no action taken hereunder shall be held to exclude such proceedings as may be authorized by other provisions of this chapter, or any of the laws in force in the city, or to exempt anyone violating this code or any part of the said laws from any liability which may be incurred. [Ord. 1418-2012. Code 2000 § 112.33.]
5.15.160 Prohibited conduct.
(A) No patron, employee, or any other person shall knowingly or intentionally, in a sexually oriented business, appear in a state of nudity or engage in a specified sexual activity.
(B) No person shall knowingly or intentionally, in a sexually oriented business, appear in a semi-nude condition unless the person is an employee who, while semi-nude, remains at least six feet from all patrons and on a stage at least 18 inches from the floor in a room of at least 600 square feet.
(C) No employee who appears semi-nude in a sexually oriented business shall knowingly or intentionally touch a customer or the clothing of a customer on the premises of a sexually oriented business.
(D) No person shall knowingly or recklessly allow a person under the age of 18 years to be or remain on the premises of a sexually oriented business.
(E) No operator or licensee of a sexually oriented business shall knowingly violate the regulations in this section or knowingly or recklessly allow an employee or any other person to violate the regulations in this section.
(F) A sign in a form to be prescribed by the Building Commissioner, and summarizing the provisions of subsections (A) through (D) of this section shall be posted near the entrance of the sexually oriented business in such a manner as to be clearly visible to patrons upon entry. No person shall cover, obstruct, or obscure the sign. [Ord. 1418-2012. Code 2000 § 112.34.]
5.15.170 Scienter required to prove violation or business licensee liability.
This chapter does not impose strict liability. Unless a culpable mental state is otherwise specified herein, a showing of a reckless mental state is necessary to establish a violation of a provision of this chapter. Notwithstanding anything to the contrary, for the purposes of this chapter, an act by an employee that constitutes grounds for suspension or revocation of that employee’s license shall be imputed to the sexually oriented business licensee for purposes of finding a violation of this chapter, or for purposes of license denial, suspension, or revocation, only if an officer, director, or general partner, or a person who managed, supervised, or controlled the operation of the business premises, knowingly or recklessly allowed such act to occur on the premises. It shall be a defense to liability that the person to whom liability is imputed was powerless to prevent the act. [Ord. 1418-2012. Code 2000 § 112.35.]
5.15.180 Failure of city to meet deadline not to risk applicant/licensee rights.
In the event that a city official is required to act or to do a thing pursuant to this chapter within a prescribed time, and fails to act or to do such thing within the time prescribed, said failure shall not prevent the exercise of constitutional rights of an applicant or licensee. If the act required of the city official under this chapter, and not completed in the time prescribed, includes approval of condition(s) necessary for approval by the city of an applicant or licensee’s application for a sexually oriented business license or a sexually oriented business employee’s license (including a renewal), the license shall be deemed granted and the business or employee allowed to commence operations or employment the day after the deadline for the city’s action has passed. [Ord. 1418-2012. Code 2000 § 112.36.]
5.15.190 Location of sexually oriented businesses.
(A) It shall be unlawful to establish, operate, or cause to be operated a sexually oriented business in the city, unless the sexually oriented business is at least 750 feet from every residence.
(B) For purposes of this section, measurements shall be made in a straight line, without regard to intervening structures or objects, from the closest part of any parcel containing a sexually oriented business to the closest part of any parcel containing a residence. [Ord. 1418-2012. Code 2000 § 112.37.]