97-9829 Reg Adult Oriented BusC.WM
Published in the Salina Journal October 1Y. 1997
ORDINANCE NUMBER 97-9829
AN ORDINANCE AMENDING CHAPTER 6 OF THE SALINA CODE, AMUSEMENTS
AND ENTERTAINMENT, BY ADDING SECTIONS PERTAINING TO THE LICENSING AND
REGULATION OF ADULT ORIENTED BUSINESSES.
BE IT ORDAINED by the Governing Body of the City of Salina, Kansas:
Section 1. That Chapter 6 of the Salina Code shall be amended by adding
the following:
"ARTICLE III. ADULT ORIENTED BUSINESSES
DIVISION 1. GENERALLY
Sec. 6-46. Deleterious Secondary Effects.
In conjunction with its consideration of this ordinance, the governing body has
reviewed studies regarding the deleterious secondary effects of adult oriented
businesses from the following communities: Amarillo, Texas; Austin, Texas;
Beaumont, Texas; Cleveland, Ohio; Indianapolis, Indiana; Los Angeles, California;
Minneapolis, Minnesota; Oklahoma City, Oklahoma; Phoenix, Arizona; and Whittier,
California.
After carefully considering the results of those studies, the governing body makes the
following findings:
1. That areas containing adult oriented businesses experience a substantially
greater incidence of crime than other similar areas without such businesses.
2. That areas containing adult oriented businesses experience a substantially
greater depreciation of property values than other similar areas without such
businesses.
3. That the concentration of adult oriented businesses in the same neighborhood
attracts an undesirable transient population, causes an increase in crime, encourages
businesses and residents to relocate, and adversely affects property value.
4. That based on such studies, it is reasonable to conclude that said deleterious
secondary effects would occur within the City of Salina absent appropriate regulation
of adult oriented businesses.
5. That the primary purpose of the regulations contained herein is to mitigate, and
possibly avoid the deleterious secondary effects of adult oriented businesses and is
unrelated to restricting access to the products and services offered by such
businesses.
Sec. 6-47. 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:
1. Adult-oriented business means any business:
(A) 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.
(B) The definition of adult-oriented business includes, but is not limited to
GWW
adult arcades, adult media or merchandise outlets and adult motion picture
theaters, as defined in this Section.
2. Adult arcade means any place to which the adult 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 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.
3. Adult media or merchandise outlet means a commercial establishment which
as one of its substantial or significant business purposes offers for sale or rental for
any form of consideration any one or more of the following:
(A) 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
(B) Instruments; devices; gifts or paraphernalia; which are designed or
marketed for use in connection with specified sexual activities.
(1) Substantial or significant. For the purposes of this Article it shall
be presumed that a commercial establishment has as one of its
"substantial or significant" business purposes the sale or rental of the
materials described herein if one or more of the following criteria 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 material described in subsection 1 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 at any time consists of such items;
(e) Thirty percent (30%) or more of the sales, measured in
dollars over any consecutive ninety -day period, 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 such items;
(h) Thirty percent (30%) of the stock in trade at any time
consists of such items;
This presumption shall be rebuttable.
(2) Designed or Marketed for Use. 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 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.
4. 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.
5, 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 combination of
the foregoing.
6. Specified sexual activities means any of the following acts or intended sexual
arousal or excitement:
(A) Sexual conduct including, but not limited to, actual or simulated acts of
sexual intercourse, masturbation, oral copulation or sodomy;
(B) fondling or other intentional touching of a person's clothed or unclothed
genitals, pubic area, buttocks, anus or female breasts;
(C) Sadomasochistic acts;
(D) Acts involving animals or latent objects.
Sec. 6-48. Classification.
Adult-oriented businesses are classified as follows:
1. Adult arcades
2. Adult media or merchandise outlet
3. Adult motion picture theaters
Sec. 6-49 - 6-53. Reserved.
DIVISION 2. LICENSE
Sec. 6-54. License required.
1. 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.
2. 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.
3. The annual license fee for an adult-oriented business shall be as established
in section 2-2.
Sec. 6-55. 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:
1. The name, residence address, home telephone number, occupation, date and
place of birth, and social security number of the applicant.
2. The tax identification number and registered agent if the owner is required to
have a tax identification number or registered agent.
3. The name of the adult business, a description of the type of adult business to
be performed on the licensed premises, the name of the owner of the premises and
the address and legal description of the premises where the adult business will be
located.
4. 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.
5. A 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.
6. 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.
7. If the applicant is a corporation or limited liability company, a current certificate
of registration issued by the Kansas Secretary of State.
8. A signed statement 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. 6-56. 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.
1. The applicant knowingly gave materially false, fraudulent or untruthful
information on the application;
2. The applicant knowingly failed to supply all of the information requested on the
application;
3. The applicant's proposed business premises does not comply with or meet the
requirements of the applicable zoning code, building code, fire and property
maintenance ordinances or health regulations; 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.
4. 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.
5. 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. 6-57. 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 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 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
code, building code, fire and property maintenance ordinances, and health regulations.
The Director of Planning and Community Development and the 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 Building Official, the City Clerk shall forward the application for consideration
by the City Manager, who shall approve or disapprove the license.
Sec. 6-58. Examination of Application, Issuance of License, Disapproval.
1. 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.
2. 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.
3. 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 by submitting a request for the appeal, in writing, to the
City Clerk. 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. 6-59. Renewal.
1. 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.
2. 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.
3. 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. 6-60 - 6-64. Reserved.
DIVISION 3. OPERATING REGULATIONS
Sec. 6-65. Standards of Operation.
The following standards of operation shall apply to an adult-oriented business:
1. Age Restriction - Only persons 18 years of age or older shall be permitted on
the premises of an adult-oriented business.
2. 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.
3. 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.
4. 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 booth,
cubicle, room or stall 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. 6-66. 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 administrative search warrant
by the district court authorizing the inspection.
Sec. 6-67. 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. 6-68 - 6-72. Reserved.
DIVISION 4. SUSPENSION, REVOCATION, NON -RENEWAL, APPEAL
Sec. 6-73. Suspension, revocation, non -renewal or appeal.
Whenever the City Manager has information that:
1. 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
2. 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
3. The license was knowingly obtained through false statements in the application
for such license or renewal thereof; or
4. The licensee knowingly failed to make a complete disclosure of all information
in the application for such license, or renewal thereof; or
5. 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:
1. Suspend the license for up to ninety (90) days;
2. Revoke the license for the remainder of the license year; or
3. 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. 6-74 - 6-78. Reserved.
DIVISION 5. PENALTY
Sec. 6-79. Penalty.
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."
Section 2. That this ordinance shall be in full force and effect from and after its
adoption and publication once in the official city newspaper.
{SEAL}
ATTEST:
CMC, City lerk
Introduced: September 22, 1997
Passed: October 6, 1997
y
ristin M. Se on, Mayor