8.3 Temp Moritorium Adult BusinCITY OF SALINA
REQUEST FOR COMMISSION ACTION DATE 'rIME
4:00 P.M.
AGENDA SECTION: ORIGINATING DEPARTMENT: APPROVED FOR
NO. 8 AGENDA:
City Attorney
ITEM
NO. 3 Greg Bengtson
BY: BY:
Item
First reading Ordinance Number 97-9822 imposing a temporary moratorium on
the opening and operation of certain adult-oriented businesses for a period of
ninety days.
Background
For approximately the next 90 days, the Planning Commission and the City
Commission will have under consideration studies relating to th~ deleterious
secondary effects of certain adult-oriented businesses and a draft ordinance
relating to the location and licensing, of adult motion picture theatres, adult
arcades, and adult media or merchandise outlets. While no adult-oriented
businesses as defined in the draft ordinance are known to currently exist in
Salina, the possibility remains that such a business could attempt to open in a
subsequently prohibited location while the City Commission has the proposed
ordinance under consideration.
The proposed temporary moratorium clarifies the City's position for any
prospective business operator and assures that the opening of a potentially
regulated business prior to the effective date of those regulations doesn't
undermine the public purpose ultimately served by the entire effort. The
proposed temporary moratorium is limited to 90 days. The ordinance also
requires that three copies of the latest version of the draft of the proposed
adult-oriented business ordinance be made available in the City Clerk's office
for public review.
Recommendation
Approve Ordinance Number 97-9822 for first reading.
COMMISSION ACTION
MOTION BY SECOND BY
THAT: -.
PROPOSED AMENDMENT TO ZONING ORDINANCE
Section 42-67. Adult oriented businesses.
(a) It shall be unlawful for any person to operate or cause to be operated an adult oriented business
unless permitted within the zoning district in which the business is located.
(b) It shall be unlawful for any person to operate or cause to be operated an adult oriented business
within one thousand (1,000) feet of any of the following within the corporate limits of the city:
(1) A boundary of a residential district;
(2) A church or synagogue;
(3) A school;
(4) A group day care center or kindergarten; or
(5)
A public park or playground, if any portion of the park or playground or a street abutting any
portion of the park or playground is within or abuts a residential district.
For the purposes of this subsection, measurement shall be made in a straight line, without regard to
intervening structures or objects, from the nearest portion of the building or structure used as a part of the
premises where an adult oriented business is conducted, to the nearest property line of the premises of a
church or rectory, school, group day care center or kindergarten or to the nearest boundary of an affected
public park or playground or residential district.
(c) It shall be unlawful for any person to operate or establish or cause or permit another to operate
or establish an adult oriented business which is located within five hundred (500) feet of another adult
oriented business. The distance between two (2) adult oriented businesses shall be measured in a straight line,
without regard to intervening structures or objects, from the closest exterior walls of the structures in which
the businesses are located.
(d) It shall be unlawful for any person to cause or permit the operation, establishment or maintenance
of more than one (1) adult oriented business in the same building, structure or portion thereof.
Section 42-617.1 Adult oriented business.
"Adult oriented business" means an adult arcade, adult media or merchandise outlet, or adult motion
picture theater as defined by city code.
D R A F T (7~28~97)
Adult-Oriented Businesses
Sec. . Deleterious Secondary Effects.
In conjunction with its consideration of this ordinance, the governing body has read the
following studies:
1.
2.
3.
4.
After carefully considering the results of those studies, the governing body makes the
following findings:
1.
2.
3.
4.
Sec. . Definitions.
As used in this article, unless the context clearly requires otherwise, the following words
and phrases shall have the meanings ascribed to them in this section.
A. "Adult-oriented business" means any business
1. Which has as a substantial or significant purpose the sale or rental of
merchandise which is intended for use in connection with specified sexual
activities, or that emphasizes matters depicting, describing or relating to
specified sexual activities or specified anatomical areas.
The definition of "adult-oriented business" also includes, but is not limited
to any and all of the following specific adult-oriented businesses, as
defined herein:
(a)
"Adult amade" means: any place to which the public is invited
wherein coin-operated or token-operated or electronically,
electrically or mechanically controlled still or motion picture
machines, projectors or other image-producing devices are
maintained to show images to five (5) or fewer persons per
machine at any one (1) time and where the images so displayed
are distinguished or characterized by an emphasis on matters
depicting, describing or relating to specified sexual activities or
specified anatomical areas.
(b)
"Adult media or merchandise outlet" means: a commercial
establishment which as one (1) of its substantial or significant
business purposes offers for sale or rental for any form of
consideration any one (1) or more of the following:
(1)
Books; magazines; periodicals; other printed matter;
pictures; slides; videotapes; video reproductions; compact
discs; motion pictures; films; or other media; containing
visual representations distinguished or characterized by an
emphasis on matter depicting, describing or relating to
specified sexual activities or specified anatomical areas; or
(2)
instruments; devices; gifts or paraphernalia; which are
designed or marketed for use in connection with specified
sexual activities. For the purposes of this (article) it shall be
presumed that a commercial establishment has an one (1)
of its "substantial or significant" business purposes the sale
or rental of the materials described herein if one (1) or more
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of the following cdteda are satisfied:
(a)
The establishment makes use of a sign visible from
any public street, whether located on or off the
property of the establishment, advertising the
availability at the establishment of any matedal
described in section of this definition:
(b)
Thirty percent (30%) or more of the floor area of the
business (not including storerooms, stock areas,
bathrooms, basements or any portion of the business
not open to the public) is devoted to such items at
any time;
(c)
Thirty percent (30%) or more of all inventory at any
time consists of such items;
(d)
Thirty percent (30%) or more of the merchandise
displayed for sale consists of such items at any time;
(e)
Thirty percent (30%) or more of the sales, measured
in dollars over any consecutive ninety-day pedod, is
derived from such items;
(f)
Thirty percent (30%) or more of the number of sales
transactions, measured over any consecutive ninety-
day period, is of such items;
(g)
Thirty percent (30%) or more of the dollar value of all
merchandise displayed at any time is attributable to
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such items;
(h)
Thirty percent (30%) of the stock in trade consists of
such items at any time;
This presumption shall be rebuttable.
In determining whether an item is "designed or marketed for
use" in connection with specified sexual activities, the
following guidelines may be considered:
(a) expert testimony as to the principle use of the item;
(b)
evidence concerning the total business of a person or
business establishment and the type of merchandise
involved in the business;
(c)
national and local advertising concerning use of the
item;
(d)
evidence of advertising concerning the nature of the
business establishment;
(e)
instructions, graphics or other material contained on
the item itself or on the packaging materials for the
item;
(f) the physical or structural characteristics of the item.
(g) the manner in which the item is displayed, including
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its proximity to other regulated merchandise or
signage relating to items in a display area;
Any person may request an interpretive ruling from the City
Manager, or his or her designee, as to whether a particular
item is considered by the city to be "designed or marketed
for use" in connection with specified sexual activities. An
application for an interpretive ruling shall be made in writing
on a form provided by the City Manager, and shall be
accompanied by such other information as may reasonably
be requested under the circumstances pertaining to the
specific item about which a ruling is requested. The City
Manager shall issue a written interpretive ruling within ten
business days following submission of a completed
application. The decision of the City Manager may be
appealed to the Governing Body within fifteen days following
the interpretive ruling by submitting a written notice of appeal
to the City Clerk.
(c)
"Adult motion picture theater" means: an establishment with a screen or
projection areas, where a regular and substantial portion of its business is
the exhibition to patrons of films, videotapes or motion pictures which are
intended to provide sexual arousal or sexual excitement to the patrons
and which are distinguished by an emphasis on matter depicting,
describing or relating to specified sexual activities or specified anatomical
areas.
(B)
"S.Decified sexual activities" means any of the following acts or intended sexual
arousal or excitement:
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Sexual conduct including, but not limited to, actual or simulated acts of
sexual intercourse, masturbation, oral copulation or sodomy;
(2)
fondling or other intentional touching of a person's clothed or unclothes
genitals, pubic area, buttocks, anus or female breasts;
(3) Sadomasochistic acts;
(4) Acts involving animals or latent objects.
(c)
"Specified anatomical areas" means uncovered or exposed human genitals,
pubic region or pubic hair, buttocks, female breast or breasts below a point
immediately above the top of the areola encircling the nipple, or any C°mbination
of the foregoing.
Sec. Classification.
Adult-oriented businesses are classified as follows:
Adult arcades
Adult motion picture theaters
Adult media or merchandise outlet
Sec.
License required for adult-oriented business.
(a)
It shall be unlawful for any person to operate or maintain an adult-oriented
business in the City unless the owner, operator or lessee thereof has obtained
an adult-oriented business license from the City, or to operate such business
after such license has been revoked or suspended by the City.
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(b)
The license year for all fees required herein shall be from each January 1
through December 31. The application for a license shall be accompanied by
payment in full by cash or check and no application shall be considered
complete until such fee is paid.
(c)
The annual license fee for an adult-oriented business shall be as established in
section 2-2.
Sec,
· License applications.
All persons desiring to secure a license to operate an adult-oriented business as
required herein shall make an application with the City Clerk. All applications shall be
submitted in the name of the person who owns the adult business. The application
shall be signed by the applicant. If the applicant is a corporation, the application shall
be signed by its president. If the applicant is a partnership, the application shall be
signed by a general partner. In all other instances where the owner is not an individual,
the application shall be signed by an authorized representative of the owner. The City
Clerk may require proof of authorization before accepting an application. All
applications shall be submitted on a form supplied by the City Clerk, and shall require
the following information.
The name, residence address, home telephone number, occupation, date, place
of birth and social security number of the applicant.
The tax identification number and registered agent if the owner is required to
have a tax identification number or registered agent.
The name of the adult business, a description of the type of adult business, a
description of the type of adult business to be performed on the licensed
premises, and the name of the owner of the premises where the adult business
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will be located.
The names, residence addresses, social security numbers and dates of births of
all partners, if the applicant is a partnership or limited liability partnership; and if
the applicant is a corporation or limited liability company, the same information
for all corporate officers and directors and stockholders or members who own
more than 25% interest in the corporation.
^ statement from the applicant whether the applicant, or any corporate officer or
director, or stockholder, partner or member who owns more than 25% interest in
such entity in previously operating in this or another city, county or state, has had
an adult business license of any type revoked or suspended, and if so, the
reason for the suspension or revocation and the business activity subjected to
the suspension or revocation.
A statement from the applicant, all partners or each corporate officer and director
that each such person has not been convicted of, or released from confinement
for conviction of, or diverted from prosecution on, any felony, whichever event is
later, within five (5) years immediately preceding the application, or has not been
convicted of, or diverted from prosecution on, a misdemeanor, or released from
confinement for conviction of a misdemeanor, whichever event is later, within two
(2) years immediately preceding the application, where such felony or
misdemeanor involved sexual offenses, prostitution, indecent exposure, sexual
abuse of a child or pornography or related offenses.
The statement shall also indicate that the applicant, each partner or each
corporate officer and director has not been convicted of a municipal ordinance
violation or diverted from prosecution on a municipal ordinance violation within
two (2) years immediately preceding the application where such municipal
ordinance violation involved sexual offenses, indecent exposure or prostitution.
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If the applicant is a corporation or limited liability company, a current certificate of
registration issued by the Kansas Secretary of State.
A signed statement signed that the applicant has personal knowledge of the
information contained in the application and that the information contained
therein is true and correct and that the applicant has read the provisions of this
ordinance regulating adult oriented businesses.
Failure to provide the information and documentation required herein shall constitute an
incomplete application. The City Clerk shall notify the applicant whether or not the
application is complete within 10 working days of the date the application is received by
the City Clerk.
Sec.
· License - Ineligibility and Disqualification.
No person is eligible nor shall a license be issued to an applicant for an adult-oriented
business license if one or more of the following conditions exist.
The applicant knowingly gave materially false, fraudulent or untruthful
information on the application;
The applicant knowingly failed to supply all of the information requested on the
application;
The applicant's proposed business premises does not comply with or meet the
requirements of the applicable zoning, building code, fire and property
maintenance ordinances of the City, provided that upon a showing, that the
premises meets said requirements and that the applicant is otherwise qualified,
the application shall be eligible for reconsideration by the City Manager.
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The applicant has been convicted, released from incarceration for conviction or
diverted on any of the crimes set forth herein during the time period set forth
herein.
o
The applicant has had an adult business license or comparable license revoked
or suspended in any other city during the past five (5) years;
Sec.
· Application Processing.
Upon receipt of an application for an adult-oriented business, the City Clerk shall
immediately transmit one copy of the application to the Chief of Police for investigation
of the application. In addition, the City Clerk shall transmit a copy of the application to
the Director of Planning and Community Development and the chief Building Official. It
shall be the duty of the Chief of Police to investigate such application to determine
whether the information contained in the application is accurate and whether the
application meets the requirements herein for issuance. The Chief of Police shall report
the results of the investigation to the City Clerk not later than ten (10) working days from
the date the application is received by the City Clerk. It shall be the duty of the Director
of Planning and Community Development and the Chief Building Official to determine
whether the structure where the adult-oriented business will be conducted complies
with the requirements and meets the standards of the applicable zoning, building code,
fire and property maintenance ordinances of the City. The Director of Planning and
Community Development and the Chief Building Official shall report the results of their
investigation to the City Clerk not later than ten (10) working days from the date the
application is received by the City Clerk. Upon receipt of the reports from the Chief of
Police, the Director of Planning and Community Development and the Chief Building
Official, the City Clerk shall forward the application for consideration by the City
Manager, who shall approve or disapprove the license.
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Sec. . Examination of Application, Issuance of License, Disapproval.
(a)
The City Manager shall examine an application for an adult business license
within thirty (30) days of the date such application was received by the City Clerk.
After such examination, the City Manager shall approve the issuance of a license
only if the appropriate license fee has been paid, the applicant is qualified, and
all the applicable requirements set forth herein are met. No license shall be
approved for any person ineligible pursuant to the provisions herein. All
incomplete applications shall be denied.
(b)
The City Manager's report on license examination shall be in writing and show
the action taken on the application. If the license is granted, the City Manager
shall direct the City Clerk to issue the proper license.
(c)
If an application for a license is disapproved, the applicant shall be immediately
notified by certified mail, and the notification shall state the basis for such
disapproval. Any applicant aggrieved by the disapproval of a license application
may appeal the denial to the Governing Body in writing. An appeal shall be
considered by the Governing Body at a regular or special meeting to be held
within fifteen days of receipt of the appeal. Any applicant aggrieved by the
Governing Body's disapproval of a license application may seek judicial review in
a manner provided by law.
Sec.
· Standards of Operation.
The following standards of operation shall apply to an adult-oriented business:
Age Restriction - Only persons 18 years of age or older shall be permitted on the
premises of an adult-oriented business.
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Exterior Observation and Display - The premises of an adult-oriented business
shall be operated and maintained so as to insure that any material depicting,
describing or relating to specified sexual activities or specified anatomical areas,
as defined herein, is not observable from the exterior of the building, nor
observable from any exterior source by display, decoration, sign, show window
or other opening.
Lighting Required - The premises of an adult-oriented business shall be
equipped with overhead lighting of every place to which customers are permitted
access, at an illumination of not less than one foot candle, as measured at the
floor level, and such illumination must be maintained at all times that any
customer or patron is on the premises.
Closed Booths or Rooms Prohibited - The premises of an adult business shall be
physically arranged in such a manner that the entire interior portion of any
booths, cubicles, rooms or stalls is visible from a common area of the premises.
Visibility shall not be blocked or obscured by doors, curtains, drapes or any other
obstruction whatsoever.
Sec.
Renewal.
(a)
A license may be renewed by making application to the City Clerk on application
forms provided for that purpose. Licenses shall expire on December 31 of each
calendar year, and renewal applications for such licenses shall be submitted
between November 1 and December 10.
(b)
Upon timely application and review as provided for a new license, a license
issued under the provisions of this ordinance shall be renewed by issuance of a
new license in the manner provided herein.
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(c)
If the application for renewal of a license is not made during the time provided
herein, the expiration of such license shall not be affected and a new application
shall be required.
Sec.
· Suspension, revocation or non-renewal license.
Whenever the City Manager has information that:
The owner or operator of an adult business has violated, or knowingly allowed or
permitted the violation of any of the provisions of this ordinance; or
There have been recurrent violations of provisions of this ordinance which have
occurred under such circumstances that the owner or operator of an adult-
oriented business knew or should have known that such violations were
committed; or
o
The license was knowingly obtained through false statements in the application
for such license or renewal thereof; or
The licensee knowingly failed to make a complete disclosure of all information in
the application for such license, or renewal thereof; or
The owner, operator or any partner, or any corporate officer or director holding
an adult business license has become disqualified from having a license by a
conviction as provided herein;
then the City Manager shall, upon five (5) days written notice to the licensee, conduct a
hearing to determine whether the license should be suspended or revoked. Based on
the evidence produced at the hearing, the City Manager may take any of the following
actions:
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1. Suspend the license for up to ninety (90) days;
2. Revoke the license for the remainder of the license year; or
Place the license holder on administrative probation for a period of up to one
year, on the condition that no further violations of the ordinance occur during the
period of probation. If a violation does occur, and after a hearing the violation is
determined to have actually occurred, the license will be revoked for the
remainder of the license year.
A license holder may appeal a suspension or revocation to the Governing Body in the
same manner as a license application disapproval.
Sec.
· Regulations by City Manager.
The City Manager is authorized to promulgate and enforce such regulations as
may be consistent with and necessary to carry out the intent of this article.
Sec. Inspections.
Any adult-oriented business shall permit any city official acting in his or her
official capacity to inspect the business premises as may be necessary to assure
compliance with this article. If an official of the City acting in his or her official capacity
has a reasonable basis to suspect that a commercial establishment not licensed as an
adult-oriented business is conducting business as an adult media or merchandise
outlet, the City Manager, or his or her designee, may request permission of the
business owner, operator or manager to inspect the business premises and any
business records necessary to determine if the business is an adult media or
merchandise outlet. If permission to conduct an inspection of either the business
premises or business records is refused, the City may seek the issuance of an
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by the district court authorizing the inspection.
Sec. Penal~.
It shall be unlawful for any person to violate any of the provisions of this article.
Upon conviction thereof, the general penalty and continuing violations section set forth
in Salina Code Section 1-10 shall apply.
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