Loading...
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